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

Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

A Government representative stated that the first steps taken by the new Government had included reactivating the Higher Labour Council and introducing new support measures for tripartite bodies and that it was currently introducing an innovative labour inspection programme. In the first place, with regard to the observations concerning the slowness of legal proceedings in cases concerning anti-union activities, she indicated that the implementation of the draft amendments to the Code of Labour Procedure was one of the Government’s priorities. The Government had sent Parliament a proposal that those sections that met with the workers’ and employers’ agreement should be approved and the Ministry of Labour was taking the necessary steps for those issues to be discussed as soon as possible by the Higher Labour Council. Other similar measures that had been adopted included: the consolidation of the information and training process so as to prepare those responsible for judicial decisions and the social partners to apply this legal instrument; the strengthening of alternative machinery for the settlement of disputes and for conciliation at the administrative level; an increase in the staff of labour courts and the creation of a social security tribunal; and the introduction of a system for monitoring compliance with labour decisions. Secondly, regarding the decisions handed down by the Constitutional Chamber finding that certain clauses in collective agreements in the public sector were null, she believed that collective agreements were not under threat in Costa Rica. What was under discussion was the abuse of certain public sector agreements under the terms of the Constitution. The Constitutional Chamber had declared that collective agreements in the public sector were legal so long as they did not regulate the working conditions of workers engaged in the administration of public affairs. The Second Chamber of the Supreme Court of Justice, had ruled that collective agreements negotiated by employers and public servants whose labour relations were governed by labour law, even though they were part of the public service, were not unconstitutional. The Public Prosecutor had also endorsed the right of public servants to negotiate collective agreements. Thirdly, with regard to the tripartite assessment requested by the Committee of Experts relating to the proportion of agreements concluded directly with non-unionized workers in comparison with collective agreements, the Government representative said that the principal workers’ and employers’ organizations had been convened so that the Government could inform them once again of its intention to maintain a permanent dialogue with the principal social partners. It was planned to submit the report prepared by the independent expert to the Higher Labour Council, so that the issue of direct agreements with non-unionized workers could be assessed on a tripartite basis. She asked the ILO to send a technical assistance mission on the subject. Finally, she called for the criteria for determining the list of countries called before the Committee to be revised in the light both of the frequency of the shortcomings identified and their seriousness.

The Worker members emphasized that this case had been discussed for about 15 years on many occasions, under Conventions Nos 87 and 98. They noted that a high-level mission had visited the country in 2006 and that following this mission it had been decided to establish a joint committee with the ILO’s technical assistance. The Government had also made a formal request for technical assistance to the ILO in July 2007, with a view to resolving issues relating to the implementation of Convention No. 98. In 2009, the Committee of Experts had urged the Government to take measures on an urgent basis for the creation of the bipartisan congressional committee to bring all social partners together. It had also asked the Government to provide a detailed timetable for legislative reform. Although the Government itself set the order of priorities of the agenda of the Legal Affairs Committee, nothing seemed to have been done to date. Moreover, problems still arose in relation to collective bargaining in the public sector. In this regard, it should be noted that the Bill on collective bargaining in the public sector had been submitted for consideration by the relevant committee and was 14th on the agenda. In addition, the institutionalization of solidarism appeared to be confirmed, as well as the lack of political will to solve the problem of direct agreements. The Worker members emphasized in this regard the importance of avoiding the use of direct agreements for anti-union purposes. Finally, they expressed concern at the delays in the judicial system and the harassment of the union movement, emphasizing the fact that what happened in Costa Rica could undermine union action in Central and South America.

The Employer members considered that much progress had been made in resolving the various issues of the case and that the Government showed great commitment to the work of the Committee and ILO technical assistance. For these reasons they considered that this case should not have been included in the list and emphasized the importance of encouraging situations in which progress had been made in aligning law and practice with the Convention. The Employer members nonetheless considered that some issues were pending. With regard to the possible shortcomings of the procedures relating to sanctions and remedies for anti-union activities, they indicated that there remained unresolved issues, such as draft Law No. 13475 on union protection which had not yet been approved. However, the Government had provided detailed information on new measures taken and the Committee should acknowledge the efforts made in this regard. They observed clear progress with respect to the introduction of proportionality and rationality in collective bargaining procedures in the public sector. They reiterated the position of the Employer members that the State should have the autonomy to adapt collective bargaining in the public sector to its specific characteristics and the socio-economic context. They considered that the interpretation of the principles of proportionality and rationality in the use of collective bargaining in the public sector seemed to have reached an important turning point, given that the constitutionality of the collective agreements in the public sector was now recognized and it had been found that the rule should be to allow collective bargaining. The declaration of certain provisions of collective bargaining agreements were unconstitutional, which was the main point of controversy, seemed to have been resolved. With regard to the so-called “direct agreements” with non-unionized workers, they noted that in Costa Rica the possibility existed for enterprises to conclude direct agreements directly with other representatives of workers, which were used as an alternative to traditional collective bargaining. In the view of the Employer members, the existence of these direct agreements was not contrary to Convention No. 98.

The Worker member of Costa Rica stated that his country had achieved successes in some areas, but that there were still many shortcomings in relation to freedom of association and collective bargaining. Acts of anti-union discrimination persisted and the national legislation continued to suffer from the absence of rapid and effective procedures. He regretted the Government’s lack of commitment and the strong opposition from employers with regard to the adoption of trade union legislation. He recalled the commitment of successive governments to adopt legislation on collective bargaining rights, including: the reform of sections 111 and 112 of the General Act on Public Administration; the amendment to article 192 of the Constitution, which regulated the employment relationship between the State and public servants; the adoption of a law guaranteeing the right to collective bargaining in the public sector and the amendment of article 60 of the Constitution to allow foreigners to join the boards of trade unions. To date, none of these laws had been approved. He regretted that the Bill to reform labour procedures had not been examined by the Legislative Committee for four years and recalled that the Government had not provided a detailed time schedule of the steps to be taken for the approval and submission of the draft legislation, as had been requested by the Committee. The criteria of proportionality and rationality were maintained and employers relied on them in the collective bargaining process. The increase in the number of labour cases in the courts demonstrated the frequent violation of workers’ rights and the Government did not indicate how many cases had been resolved. The office for conflict resolution hardly functioned, which placed workers at a disadvantage due to the lack of access to legal advice.

The Employer member of Costa Rica indicated that the Labour Code and the Constitution of Costa Rica guaranteed workers their individual and collective labour rights, and that the legal system afforded ratified ILO Conventions a higher status than national legislation. As to the slow pace of labour justice, she indicated that the Bill on the reform of the labour procedures, which was promoted by the Supreme Court, would expedite labour procedures. The delays in the approval of this Bill were largely due to the attitude of the workers, who had systematically walked away from the negotiating table. With regard to the independent study which had been requested by the Committee on the Application of Standards in 2006 on the alleged disproportionality between the number of collective and direct agreements, she indicated that the Labour Code recognized different types of collective bargaining. A direct agreement was an alternative that allowed workers to improve their conditions of employment and granted union protection for their representatives. Such a direct agreement, once approved, benefited all workers. She added that the legislative measures had been combined with important court decisions, for example the recognition since 1993 of the free exercise of the collective rights of workers. Employers favoured the settlement of disputes with workers, either through direct or collective agreements. It was important to achieve stability and conflict resolution in the workplace, particularly at a time when the global crisis had left many people in the country without formal employment. She expressed the need for the ILO to ensure that it followed technical and objective criteria, and distanced itself from any political motives, which only served to make an exhibition of countries that had succeeded in resolving their labour disputes with respect and without violence. Finally, she considered that this case should be seen as a case of progress by the Government and expressed the hope that the workers would resume dialogue with the employers.

The Government member of the Bolivarian Republic of Venezuela, speaking on behalf of the Government members of the Committee, Member States of the Group of Latin America and Caribbean States (GRULAC), thanked the Government representative for the information he had provided and drew attention to the steps that had been taken to strengthen social dialogue machinery and the discussion of draft legislation on which there was tripartite agreement. He also emphasized the reference by the Government representative to developments in the country’s case law and the fact that in 2008–09 there had been no further annulment of clauses in collective agreements. The GRULAC countries hoped that the Committee on the Application of Standards would continue to improve its working methods so as to ensure full transparency and objectivity in its procedures. He called on the Committee of Experts to confine itself to the mandate it had been entrusted with by the Governing Body.

The Worker member of Germany stated that the Costa Rican trade unions were frustrated with the massive violations of trade union rights and the lack of improvement in the situation. For example, SINTRAJAP, the trade union of a state enterprise, had objected to the privatization of the management of docks, upon which the management had called a staff meeting in which it had removed the elected board of the trade union. When the legitimately elected board had refused to accept the unlawfully appointed board, the enterprise had evicted the union from its offices and taken possession of its property. This was a most serious case of employer interference in trade union activities and organization. The new unlawful board had then negotiated a collective agreement on the privatization of the docks and had reversed the previously won concessions from the enterprise management to workers. Another example was the dismissal of trade unionists without notice three days after they had established a trade union for bus drivers on 21 May 2010. Finally, there was the example of the COSIBAR trade union of workers in the banana industry and members of the agricultural union SITAGAH, who had filed a complaint concerning the violation of national labour law by their employers. Their complaints had been ignored and their rights, including social security, continued to be denied. There had been a series of cases in which the results of investigations had been pending for years, such as the case of the dismissal of workers of the National Social Insurance Institute on grounds of trade union activity, which had been discussed by the Committee the previous year. Costa Rica had a new Government, but the agencies dealing with these cases remained the same. He called on the new Government to put an end to these practices and to ensure that trade union rights were effectively protected.

The Employer member of the Bolivarian Republic of Venezuela expressed the opinion that Costa Rica was altogether respectful of individual and collective workers’ rights. Its labour legislation provided for various forms of negotiation. Direct agreements were a form of negotiation with works committees which, under different names, were common practice in other countries’ legislation. As to the slow pace of labour procedures, negotiations in the Congress of Costa Rica had made considerable progress; if the Bill had not yet been adopted, it was because it involved the social partners and because the discussion of important issues in the country always took time.

The Worker member of Brazil indicated that there were many aspects of concern regarding the application of the Convention, in particular the slow and inefficient procedures for sanction and redress in cases of anti-union acts. The number of dismissals of union leaders was still very high, both in the public and the private sectors, as identified by the high-level mission which had visited the country in 2006. However, the response of the judiciary to this situation was extremely slow, taking on average four years for a final decision. This fact showed that the national legislation lacked adequate protection for union leaders. The inadequacy of the national legislation in the field of anti-union discrimination had been examined for years by the Conference Committee. On several occasions the Committee of Experts had noted that despite the Government’s commitment to improve the situation, there had been no improvement in law and practice. He noted that the Government highlighted the proceedings relating to the Legislative Assembly Bill No. 15990 to reform labour procedures. Unfortunately, it did not appear to be the case that there would be rapid and effective procedures to deal with anti-union dismissals even if the Bill were approved. The Government had undertaken to establish a joint legislative committee composed of workers, employers, the Executive and the Judiciary to examine and approve the Bill. However, the Government had not formed such a committee or convened public meetings to discuss it, except for a subcommittee where workers had been represented and some agreements reached. These agreements had never been sent to the Legislative Assembly. He was of the view that the Bill was not in conformity with the Convention, as it did not amend the provisions on the possible use of direct anti-union measures. He observed that the information provided by the Government on the treatment of the judicial process had not clarified the time needed for union leaders victims of anti-union discrimination to be reinstated. Four years to obtain a ruling was too long. He recalled an observation of the Committee on Freedom of Association that the situation was not compatible with the requirement of a fair and prompt procedure, and gave rise to very detrimental consequences. The analysis of 2010 could be applied to any other previous years, which showed that the situation remained the same. The option identified by the high-level mission had not been pursued by successive governments. The Conference Committee had to be more rigorous this time.

The Government member of Panama welcomed the statement of the GRULAC countries. He regretted that the final list of countries invited to provide information to the Committee had been adopted so late, as it had caused uncertainty among the countries that were liable to be included on the list. The Committee should give governments more time to amend their legislation before calling on them to submit reports again. He emphasized the efforts made by Costa Rica to comply with the ILO’s recommendations, although he believed that the Committee should avoid asking Governments to intervene in the decisions handed down by their judiciary, which would undermine the independence of their state institutions.

The Worker member of the United Kingdom, speaking on behalf of the British Trades Union Congress (TUC), various trade unions of the Member States of the European Union and the AFL-CIO, indicated that there were clear indications of worrying and insidious attempts to undermine free and independent trade unionism in the country. A high-level mission had visited the country and technical visits had been undertaken. Despite the requests made by the Committee of Experts to provide additional information with respect to legislative reform, the Government had made repeated promises and the relevant legislation had not yet been amended. The deliberation of Bill No. 13475 on trade union freedom had not progressed in recent months and the detailed time schedule for legislative action was yet to be adopted. He noted that the Government had indicated in its statement to the Committee that there was not sufficient time to discuss the Bill due to other pending legislation, presidential and ministerial changes, and the lack of the necessary technical and other support, but these appeared to be excuses for the lack of progress. While the Government had indicated that only collective bargaining had“constitutional rank”, he observed that in practice it lacked the will to support genuine worker organizations, and recalled that in April 2010 a Regulation had been adopted giving the solidarismo structures the same status as trade unions. At present, only around 13 collective agreements had been concluded, while 74 direct agreements had been established. Union density had decreased to less than 3 per cent, while the number of workers covered by the solidarismo system was over 300,000. He added that acts of direct intimidation had been observed against trade unions, such as the occupation of union offices in Puerto Limón on 26 May 2010 by the armed police. The TUC had written to the Government on this matter but had received no reply. The information provided by Costa Rican trade unions was worrying. He recalled the hope expressed by the Committee of Experts of seeing significant progress in the near future. He welcomed the commitments made by the Government representative, but indicated that, without considerably more pressure and action by the Committee, it would be a long time before Costa Rican workers obtained the rights to which they were entitled.

The Employer member of Colombia referred to the issue of direct agreements and standing workers’ committees comprising non-unionized workers. In his view, Convention No. 98 and the Workers’ Representatives Convention, 1971 (No. 135), allowed for the possibility of agreements with non-unionized workers, and no other ILO Convention prohibited negotiations with non-unionized workers. He therefore expressed surprise that the Committee of Experts had called for the promotion of collective bargaining solely with trade unions. He therefore considered that the number of direct agreements in the country did not constitute a valid criterion for evaluating possible non-compliance with the Convention. He recalled the democratic tradition of Costa Rica and the ongoing commitment of that country to comply with ILO Conventions, as had been demonstrated through the acceptance of the designation of an independent foreign expert for the preparation of a report on the practice of direct agreements and their impact on freedom of association.

An observer representing the International Trade Union Confederation (ITUC) explained that the ratification of international labour Conventions entailed legal obligations for the member State as a whole. In that regard, he considered that the Government could not use the fact that it had only recently taken office as an excuse for evading its responsibilities under the Convention. He recalled that it was not the first time that Costa Rica had been called upon to provide the Committee with explanations on the application of fundamental Conventions, and particularly this Convention. He considered that prompt and effective justice did not exist in the country, as legal actions brought by workers were usually delayed for many years, which called justice into question. The excessive delays in judicial proceedings on labour matters had very serious consequences, as they caused workers to lose faith in the democratic system and the rule of law.

He pointed out that another serious problem affecting the right to freedom of association and collective bargaining arose out of the culture among enterprises of encouraging direct negotiations with permanent committees of non-unionized workers. Both the Committee of Experts and the independent expert had stated that such an approach could be considered as constituting an anti-union practice. The permanent committees of non-unionized workers brought to mind the so-called solidarist associations promoted by certain employers in Latin America, and were a threat not just to freedom of association but to the International Labour Organization itself. He concluded by calling on the new Government authorities to cease violating freedom of association and collective bargaining, which were fundamental pillars of the democratic system. National and transnational economic resources required the capacity of the working class, who deserved full recognition of their fundamental human rights, including freedom of association and collective bargaining.

The Government representative stated that after only one month the new Government had already shown its willingness to comply with the Convention and its availability for dialogue. She felt that improving collective bargaining also depended on the attitude of the employers’ and workers’ organizations, which took on special importance in a context of possible reactivation of the Higher Labour Council. She added that Bill No. 13475 had neither been rejected nor shelved. It continued to be part of the draft procedural labour reforms being proposed, and the Bill was backed by the parliamentary group that supported the Government. The slow pace of parliamentary discussions was an aspect of democracy because the search for consensus sometimes required time. The executive branch of Government did not determine the legislative agenda, but that efforts were being made for the adoption of the Bill to reform labour procedure. She recalled that Costa Rica was a social state of law where the various social sectors not only coexisted peacefully but also served together on the boards of directors of several public institutions and banks. That experience not only was not anti-union but also contributed to strengthening the status of the country as a social state of law. She rejected accusations that Costa Rica was an anti-union country. The Government would continue to protect the rights of all workers, including unionized workers. In conclusion, she called on the Committee to consider the present case as a case of progress.

The Worker members stated that the Government had again requested the technical assistance of the ILO, but that such a request could not be accepted. There were serious doubts about the concrete results and tangible progress that a new technical assistance mission could produce. It was impossible to accept the idyllic picture painted by the Employer members. Costa Rica was neither a democratic nor a social paradise. In addition, the declarations of the Government and the Employer members revealed confusion between the roles of the various branches of power, in particular the role of the judiciary. It should be up to the law and not the judiciary to determine the hierarchy of laws and to establish the scope of collective bargaining. The violations of the Convention described by the various workers were based on the direct experience of Costa Rican workers. No attempt was being made to question the intentions of the new Government, but member States were responsible for implementing ratified Conventions. Taking into account the previous serious violations of the Convention and the unconvincing nature of the information provided by the Government, the Worker members proposed that the conclusions of the Committee be included in a special paragraph of the Committee’s report.

The Employer members emphasized the improvement in terms of the length of judicial proceedings and welcomed the current trends in the case law on collective bargaining. They noted the difficulties in the adoption of Bill No. 13475 and the Bill to reform labour procedure. Although trying to achieve consensus was important, there came a time when the authorities had to shoulder their responsibilities, as the separation of powers could not become an obstacle to compliance with a State’s international obligations. They emphasized the need to continue efforts to enhance social dialogue, finalize the adoption of pending legislation, modernize and strengthen the national judicial system and consolidate the new trends in the case law on collective bargaining. The Employer members considered that the case should not appear in a special paragraph of the Committee’s report.

Conclusions

The Committee took note of the statement made by the Government representative and of the discussion which took place thereafter. The Committee of Experts had raised, on numerous occasions, problems with respect to the slowness and inefficiency of the proceedings for sanctions and reparations in cases of anti-union acts, the cancellation of provisions in certain collective bargaining agreements and the important difference between the number of collective agreements and the number of direct agreements concluded with non-unionized workers. The Committee of Experts had also welcomed the developments in the case law and inferred from this that there had been no further cancelling of clauses in collective agreements in 2008–09.

The Committee noted the statement by the Government representative of its willingness to overcome these problems. She referred in this regard to a draft reform which included various improvements with respect to the Convention, in particular as regards the rapidity and efficiency of the judicial process and to a new regulation on collective bargaining in the public service, which had been submitted to the Legislative Assembly to be dealt with as a matter of priority. An agenda would be submitted to the Higher Labour Council (the national tripartite body), including an analysis of the issue of direct agreements with non-unionized workers and the improvement of the negotiating procedures in the public service. The Committee also noted that the Government had requested an ILO technical assistance mission.

The Committee observed that, despite the existence of these problems for many years and the fact that the case had been discussed on several occasions, there had not been sufficient progress in the application of the Convention in either law or practice, although the new Government indicated certain efforts and actions to achieve improvements in the application of the Convention. The Committee therefore expressed the firm hope that, in the very near future, it would be able to note substantial progress in the application of the Convention and trusted that the legislative drafts upon which there has been tripartite consensus would be examined by the legislature and adopted without delay.

Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

A Government representative said that his Government had taken office in 2006 and would end its mandate in 2010. In 2006, his Government had requested a high-level mission to establish contacts with workers, employers, members of Parliament and other relevant sectors in Costa Rica. In October 2006, the Higher Labour Council, a tripartite body, had concluded two agreements, the first to promote a draft reform of labour procedures on a tripartite basis and with ILO assistance, and the other to move forward on the remaining Bills relating to freedom of association.

However, over the three next years there had been the debate concerning the Free Trade Area of the Americas (FTAA) negotiations with the United States, which was Costa Rica’s main trading partner as trade with that country represented 55 per cent of Costa Rica’s foreign trade. The discussion on the FTAA had divided the country, with approximately 50 per cent in favour and 50 per cent against. It had been necessary to hold a referendum, in which those in favour had won. Following the referendum, with the sword of Damocles of the deadline to approve the FTAA, it had been necessary to focus on the adoption of a series of legislative and practical measures to comply with the treaty, which required a qualified majority. The FTAA had finally entered into force on 1 January 2009.

This had rendered it difficult to make progress on the adoption of the draft texts referred to by the Committee of Experts. There was consensus in respect of the draft texts and he expressed the hope that they would be adopted before the end of the Government’s mandate. He was convinced that, in the context of the globalized economy, workers’ rights were human rights. He emphasized the will of his Government to fulfil the commitments that had been made and to give full effect to the Convention. In short, these were the reasons why the Government had not been able to adopt the draft texts in question over the past three years.

The Worker members indicated that the case of Costa Rica had been examined by the Committee in 2001, 2002, 2004 and 2006 and that a high-level mission had visited the country in 2006. In 2007, the Government had requested technical assistance from the Office, claiming that it was about to solve the problems in the implementation of the Convention and to promote tripartite dialogue. It had not been possible to reach agreement to examine this case in 2008 despite the very firm request made by the Committee of Experts and workers’ organizations. In view of the seriousness of the situation and the persistent shortcomings, the Worker members warned that it would insist on the case being examined in 2009.

A major problem which was a direct threat to collective bargaining was the direct agreements and unfair anti-union practices that allowed non-unionized workers to elect the majority of a permanent workers’ committee which represented their interests in relation to the employer and could coexist with a union in an enterprise. The slowness and ineffectiveness of recourse procedures and compensation in the event of anti-union acts were also a cause for concern.

In addition, they noted that the culture of solidarism was a cancer which threatened collective bargaining in South and Central America. Supporters of solidarism were currently the main opponents of unions. While union activists faced daily obstacles in the exercise of the right to unionize, the solidarists were free to engage in anti-union activities within the enterprise. The number of solidarists associations was four times that of unions.

With regard to compliance with the Convention in export processing zones, the Committee of Experts had noted complaints that related to long-standing issues, and had referred to cases before the Committee on Freedom of Association which confirmed the significant number of trade unionists dismissed. Moreover, the Supreme Court had declared certain provisions of institutional or public sector enterprise collective agreements to be unconstitutional. It had found that these provisions needed to meet certain criteria of proportionality and rationality, which contradicted the efforts announced by the Government. The considerable delay in adopting the proposed reform showed the lack of willingness to move forward. The case law of the Constitutional Court was very restrictive in matters of labour legislation, freedom of association and collective bargaining. The Government had announced that the case law had changed in at least one case and that the Higher Labour Council, a tripartite body, had revived the activities of a special committee to study and analyse the draft Bill on the reform of labour procedures to resolve the problem of the slowness of procedures in relation to anti-union discrimination and to strengthen the right to collective bargaining in the public sector. The slowness of the courts was currently being addressed by the judicial authorities, and considerable human resources had been allocated to the matter. These points were identical to those raised during the mission that had visited San José in October 2006 and the trade union rights situation remained precarious in Costa Rica.

With regard to the direct negotiation of agreements with non-unionized workers, a recent study by Adrian Goldin had shown that there were currently 74 direct agreements in force compared with only 13 collective agreements. The study revealed that it was the employers who offered and supported these agreements and took the initiative of dialogue for that purpose, and that cases of interference by employers in the election of standing committees had been observed. Furthermore, the ballot was not secret and some voters might have been intimidated. The very concept of permanent workers’ committees and the long-standing practices adopted for the establishment of such committees were a clear obstacle to the provision of basic democratic guarantees and the respect for the essential conditions of independence and representativeness. Permanent workers’ committees had neither the resources nor the skills needed to engage in dialogue with employers in such a manner as to provide some balance in negotiations. In general, these committees had been used to prevent the establishment of trade unions or to hinder their activities. In view of all these elements, they reserved the possibility of calling for a special paragraph.

The Employer members thanked the Government representative for his statement and recalled that the discussion concerned Convention No. 98, and that its context was therefore narrower than the broader issues raised by the application of Convention No. 87. They noted that the Government representative had described the reasons why the draft reform Bill had not been enacted, although it was not clear why a trade issue would be an obstacle to its enactment. It appeared that the draft reform Bill was now ready, and they urged the Government to enact it as soon as possible.

The Employer members noted that this case had been discussed for a number of years, and recalled the four main problems that had been raised by the Committee of Experts. The first of these concerned the slowness of the procedures available in cases of anti-union acts. They assumed that the draft Bill addressed this issue, but this would have to be confirmed when it was examined by the Committee of Experts. Regarding the restriction of collective bargaining in the public sector, the comments made by the Committee of Experts had been quite limited in scope, even more so than in the 2004 observation. With reference to the declaration of clauses in collective agreements as being unconstitutional, they noted that this occasionally occurred under other legal systems and that constitutional provisions were clearly binding on all parties. The fourth issue raised by the Committee of Experts had been the high number of direct agreements as compared with the number of collective agreements. The Employer members noted that this was not in itself a violation of the Convention, which merely called for the promotion of voluntary collective bargaining. The Government needed to provide a report to the Committee of Experts in due time, which should include the text of the draft reform Bill and clarify its intentions on the above four issues. In its conclusions, the Committee should urge the Government to enact the legislation that had been prepared.

The Worker member of Costa Rica, with reference to the comments of the Committee of Experts concerning a series of dismissals, said that 26 dismissed workers of an electrical cooperative were still without work because they had participated in a solidarity strike with the leaders of a branch of the SITET, who had also been dismissed for joining the union, and that the Secretaries-General of the CGT, the Trade Union of the National Insurance Institute (UPINS), and of the Secretariat of Education of the latter had also been dismissed. These were dismissals for political reasons because of their opposition to the opening of insurance services required by the free trade agreement with the United States. This was inconsistent with the Workers’ Representatives Recommendation, 1971 (No. 143), which provided that, for the dismissal of a trade union leader there should be consultation with, an advisory opinion from, or agreement of an independent body, public or private, or a joint body, before the dismissal of a workers’ representative became final, but this requirement had not been given effect. Furthermore, the state institutions were refusing to register AFUMITRA, and UNEC had lodged a complaint with the labour inspectorate.

He referred to the rulings of the Constitutional Court concerning the public sector, where the Convention was disregarded. Although the Government had indicated that there were regulations respecting collective bargaining in the public sector, these regulations contained many restrictions, which he proceeded to list. The regulations also applied to institutions governed by labour law, such as the Petroleum, Chemical and Similar Workers’ Union (SITRAPEQUIA), which had already been mentioned in the 2008 report. Moreover, negotiations were extremely slow and, for example, SITRARENA had been unable to enter into negotiations for over a year. The Committee of Experts had indicated that Costa Rica Union of Chambers and Associations of Private Enterprises (UCCAEP), which represented most of the employers, had indicated that legislation existed to protect workers from anti-union discrimination and that the judicial authorities could authorize their reinstatement. However, the high-level mission had found that judicial proceedings lasted four years and he asked how workers and their families would be able to eat during this period. The last high-level mission that had taken place in October had noted that the history of observations by the supervisory bodies to which effect had not been given meant that progress could only be confirmed when the necessary draft legislation had been adopted. He added that the reinforcement and approval of collective bargaining in the public sector could have an impact on the complex issue of appeals against and the annulment of certain clauses of collective agreements in the public sector. According to the report of the high-level mission, the Minister had indicated in an interview that he was personally in favour of the solidarist movement, although he did not agree with its use to weaken the trade union movement. He observed that no progress had been made in the adoption of any of the draft texts by the Legislative Assembly, and that Conventions Nos 151 and 154 and the draft reform of the General Act respecting the Public Administration had been shelved since 2005. Nor had the Legislative Assembly agreed to establish a joint commission to discuss the draft procedural reform. The only draft text under discussion by the Legislative Plenary was Act No. 13.475 on trade union rights, although it was resolutely opposed by the Union of Chambers of Commerce. The Government still had not expressed support for the draft text. He added that the Government had the power to determine the legislative agenda in extraordinary sessions, but that it had not submitted any of the draft texts in question, despite the commitments made to the 2006 Conference Committee and the high-level mission. Nevertheless, in December 2008, the Government had proposed a reform of article 64 of the Political Constitution, which required the State to promote the establishment of cooperatives and solidarist associations as a means of facilitating improvements in the living conditions for workers. The Committee still remembered Case No. 1483 concerning the use of the solidarist movement to destroy trade unions. The ILO had adopted a position, but now the Government intended to give these organizations a status in the Constitution and promote them. Such was the response of the current Government to the ILO supervisory bodies. In conclusion, he said that the reiterated rulings of the Constitutional Court implied that it disregarded the ILO on a technical pretext and threatened its effectiveness.

The Worker member of Colombia regretted to state that, according to information from the Committee of Experts and the ILO high-level mission that had visited the country, both the Government and employers were engaging in anti-union practices to avoid the development of trade unionism. Proof of this was the statement by the Minister of Labour, who had met the ILO high-level mission in October 2006. He had indicated, without qualification, that he was personally in favour of the solidarity association approach: a social movement for workers with 400,000 members, which existed across the country, had resources, education programmes and housing, and was a much more attractive package for workers than trade unions were. The speaker indicated that, according to the report of the Committee of Experts, there was still an enormous gap between legislation and practice in Costa Rica, and the most impoverished sectors were paying the price. He felt that, if such practices continued, trade unions would soon become museum pieces, and assured that this would not happen because international trade unionism and the members of the Committee would stop them. He considered that workers could not continue to allow such attacks. The speaker invited the members of the Committee to consider the report of the Committee of Experts, which, with great clarity, described the crisis facing public sector workers, whose rights to organize and bargain collectively were not being respected. He denounced that, well into the twenty-first century, the achievements and victories of workers through collective labour agreements were being portrayed as illegal and unconstitutional. Firstly, this practice was contrary to ILO Conventions and Recommendations, and, secondly it was neither convenient nor intelligent for the rights of the working class to be affected in such a way. Although he had profound respect for the sovereignty of Costa Rica, he expressed his surprise at the fact that the Constitutional Court had declared a series of achievements by workers through collective bargaining unconstitutional.

In concluding, the speaker asked the Government and employers on behalf of the Latin American and Caribbean working classes, when they would keep the promises they had made to the Committee, and why the core Conventions were neither applied nor enforced.

The Worker member of Germany stated that persecution and discrimination of trade unionists in the private sector was part of day-to-day life in Costa Rica. She pointed out that trade unionism in the public sector equally faced serious problems. Less than a dozen workers’ organizations in the public sector were able to bargain collectively in conformity with core international labour standards. Given that national legislation considerably restricted collective bargaining of civil servants, less and less unions could exercise that right.

Moreover, the speaker referred to instances in the public sector where trade unionism had entailed dismissals. She wished to provide details on the cases concerning Ms Alicia Vargas and Mr Luis Alberto Salas Sarkis, employees of the National Insurance Institute (INS) and members of the National Insurance Institute Staff Union (UPINS), which had already been mentioned by the Worker member of Costa Rica. Since 2006, the repeated accusations of corruption made against the management of the INS had led to the persecution of trade unionists and had finally culminated in the dismissal of the UPINS official responsible for women’s affairs, Ms Alicia Vargas, and the UPINS Secretary-General, Mr Luis Alberto Salas Sarkis. Following those events, the President of the INS had offered to Mr Luis Alberto Salas Sarkis to reemploy his colleague, Ms Alicia Vargas, on condition that he would resign from his position as UPINS Secretary-General. The speaker qualified the behaviour as clear blackmail and was particularly preoccupied by the fact that the dubious offer had been made in the presence of the Minister of Labour.

On behalf of the Confederation of German Trade Unions (DGB), she requested the Government to take a stand on the issue and ensure that such unacceptable violation of freedom of association would not recur. She added that the precise expectations for government action had already been elaborated upon by the Worker member of Costa Rica.

The Worker member of Honduras stated that membership in the ILO, as well as the international solidarity of workers, enabled workers to express their opinions concerning problems of a national character which existed both in their own country and in other countries of the world. The speaker asserted that, after careful examination of the presentation of the situation by the Government, it was hard to believe that the Free Trade Agreement could constitute any reason or provide any excuse for the non-compliance or non-respect of the commitments undertaken by the Government following the Committee of Experts’ comments.

Regarding the persecution of trade union leaders in Honduras, the speaker pointed out that his country was in solidarity with the trade union movement. His country favoured a regional trade union strategy that could defend workers’ rights in Central America and counterbalance the “manoeuvres” of the State against the labour movement, since the difficulties faced by the trade union movement in one country could affect the labour movement in its entirety.

The Worker member of the United States drew attention to the fact that, for most of the last 20 years, the Committee of Experts and the Conference Committee had been asking the Government of Costa Rica to bring its legislation and practice into conformity with Convention No. 98. The repeated promises of the Government, however, remained unfulfilled, notwithstanding Costa Rica’s otherwise admirable tradition of peace, democracy and the rule of law. The Committee on Freedom of Association had reviewed 20 complaints involving Costa Rica in the last decade and the country had received from the ILO a direct contacts mission in 2001, an advisory mission in 2005 and a high-level technical mission in 2006, yet problems of non-compliance with Convention No. 98 still persisted.

The problems faced included anti-union dismissals and retaliation, especially in the private sector; lack of effective remedies for such unlawful retribution; and the phenomenon of employer-controlled direct agreements and employer-dominated “solidarity associations”, also known as company unionism. Those three elements explained the egregiously low rate of trade union membership and collective bargaining in Costa Rica, as reflected in a unionization rate of little more than 3 per cent in the private sector, including small agricultural producers affiliated with Costa Rican trade union organizations. The Costa Rican Confederation of Workers (CTRN) reported that unionization was around 1 per cent in the construction industry, practically zero in the commercial, hotel and restaurant sectors, and absolutely non-existent in export processing zones (EPZs), despite the valiant efforts of Costa Rican EPZ workers at genuine self-organization. No trade unions operated in Costa Rica’s EPZs as a result of the hostile environment for organizing.

The speaker recalled the Government’s assertion to the Committee of Experts that the issue of “slowness of justice”, which hindered compliance with Convention No. 98, was being tackled by the judicial authority, with additional human resources allocated and special courts and alternative dispute settlement mechanisms created. Nevertheless, the fundamental problem observed by the high-level technical mission in 2006 – that an administrative procedure to certify an unlawful anti-union reprisal had first to be completed, which often took longer than the two-month limit prescribed by the Constitutional Court – had yet to be solved. Even once a case reached the courts, it generally took four years to obtain a judgement, a delay which was fatal to the success of unions organizing campaigns, or other collective action. For example, the case of workers at the FERTICA fertilizer enterprise, which involved unlawful dismissal of unionists, had not yet been resolved, even after ten years. In May 2008, the Inter-American Commission on Human Rights had reviewed the case, but there had been no progress to date. Regrettably, the Costa Rican business community was actively opposing badly needed strengthening of trade union immunity, calling it anti-competitive.

He reiterated that although the 1984 Act on company unions formally prohibited employer-dominated solidarity organizations from bargaining to conclude collective agreements, the legal loophole of direct agreements effectively pre-empted authentic self-organization and collective bargaining of workers. Such was the situation dominating Costa Rica’s private sector. According to the 2008 Human Rights Report of the United States State Department, solidarity associations had prevented 352,000 workers from having access to legitimate union representatives. The Committee of Experts’ findings dispelled any doubt that solidarity associations and direct agreements were anything other than illegitimate company unionism. Instead of proposing to recognize and consecrate such practices in the Constitution, the Government should promote constitutional guarantees for genuine trade unionism and collective bargaining. The speaker considered that it was time for the Conference Committee to ensure that the Government acted on its commitments, and echoed calls for a special paragraph on the issue.

The Employer member of Costa Rica recalled that this case related to Convention No. 98. She made a number of comments about the Committee of Experts’ observations indicating, inter alia, that in 2007 the employers had requested the Executive to establish a tripartite commission to analyse the draft reform on labour procedures. This Bill envisaged, inter alia: legislation respecting collective labour rights; arbitration procedures in cases of juridical labour disputes; the simplification of the procedures for direct agreements, conciliation and arbitration applicable to economic and social labour disputes; the introduction of a procedure to qualify work stoppage movements; and the settlement of economic and social conflicts in the public sector.

She said that the employer sector had participated in all the various forums on the elaboration of the Bill, which was of great importance to them. It constituted a comprehensive reform which could help solve the problem of the slowness of judicial proceedings. As a Costa Rican employers’ representative, she wished to invite the workers once again to reactivate the work done through dialogue and to submit a draft text to the Congress with the consensus of both sectors, which would require the technical assistance of the ILO. Moreover, with reference to the independent studies and investigations that the Committee had requested in 2006 on the imbalance between the number of collective and direct agreements, she said that in Costa Rica freedom of association existed as a constitutional principle. She also indicated that Convention No. 98 did not stipulate the appropriate proportion of direct versus collective agreements. Employers in this respect gave priority to direct agreements with workers. She added that they respected the decision of workers to form associations, but what was important was to solve labour disputes, whether by means of direct or collective agreements. This was particularly important at times like this when many people were being left without formal employment. As employers they felt a great responsibility to contribute to mitigating the impacts of the crisis.

With reference to the conclusions of the report of the consultant, Adrian Goldin, she said that the employers did not endorse these conclusions as the report did not faithfully reflect their position and was full of unfounded assumptions, inaccuracies and subjective criteria. She recalled that, since 1943, the notion of a direct agreement existed under the Labour Code, and that the permanent workers’ committees constituted entities that were recognized by the ILO, according to Article 3, paragraph (b), of Convention No. 135. However, they were not alluded to in the consultant’s report.

In conclusion, she expressed concern at this forum being used to manipulate social and political opinions about Costa Rica and at the fact that in the past few days legal reforms were being promoted which infringed on the freedom of enterprises, under the pretext that this forum would condemn the enterprises in her country.

The Government representative of Costa Rica said that, in his country, as in any democratic society, the process of turning political will into an effective legal reality was sometimes slow.

The speaker stated that Costa Rica shared with the ILO a common belief in defending social dialogue, peace and democracy, as instruments for achieving the effective application of international labour standards. He recalled that the Government was conscious that the efforts needed to solve the problems facing its country had to be coordinated and, to that end, had made various requests for technical cooperation and assistance from the ILO to carry out an intensive training and information campaign for government actors, employers, workers and society as a whole.

The Government representative recalled that the Committee of Experts had drawn the Government’s attention to three issues: first, the slowness of proceedings in the event of anti-union acts and legal restrictions on the right to collective bargaining in the public sector; second, restrictions resulting from various legal rulings on the right to bargain collectively and the subjection of collective bargaining in the public sector to criteria of proportionality and rationality; and third, the disproportion between the number of collective agreements and direct agreements in the private sector.

With regard to the first issue, the speaker stated that the Government took note of the comments made with respect to the urgency of approving the various draft acts under consideration that were intended to solve the problem of the slowness and ineffectiveness of administrative and legal proceedings in cases of anti-union practices and collective bargaining in the public sector. In that regard, it should be recalled that the Government had made great efforts to promote the application of those draft acts. Problems arising from the approval of the Free Trade Agreement, combined with the situation created by the global financial crisis for Costa Rican families, workers and enterprises in general, had entailed the need for significant measures at national level to reactivate the economy, which had meant that the draft acts on anti-union discrimination and collective bargaining in the public sector had not been examined with due rapidity. The Government was confident that, once both things had been dealt with, particularly the economic crisis, the draft acts would be approved in the near future.

The Government representative added that, at present, the draft Act to reform labour procedures was being examined by the Permanent Commission on Legal Affairs of the Legislative Assembly. The Bill was a comprehensive proposal incorporating recommendations made by the ILO Committee on Freedom of Association on matters of concern to the country and represented the result of a wide consultation process. The Bill addressed the issue of the slowness of proceedings in cases of anti-union acts and strengthened the right to bargain collectively in the public sector. In essence, it was intended to simplify and facilitate legal proceedings, including in relation to anti-union acts. In addition, the Permanent Commission on Legal Affairs of the Legislative Assembly was examining a draft Act on negotiating collective agreements in the public sector, along with the possibility of adding a new subsection to section 112 of the General Act on Public Administration. The Government hoped that, once the draft acts in question had been analysed and studied, they would soon be approved.

With regard to the slowness of administrative and legal proceedings in cases of anti-union persecution, the Government representative stated that the Supreme Court of Justice had made significant efforts to solve those problems. To that end, it had devoted more human resources to labour jurisdiction and enhanced the performance of judges by increasing connections with other bodies so as to speed up judicial proceedings. The judicial authorities had thereby been able to considerably reduce the average duration of proceedings. Furthermore, efforts were being made to strengthen alternative means of resolving administrative disputes, in addition to the existing judicial process, in order to free up judicial pathways and facilitate conflict resolution procedures.

With regard to the second issue mentioned above, the Government representative stated that, in his country, international labour standards played an important role in preparing acts, policies and judicial rulings, bearing in mind that they would all have an impact on working conditions and labour relations. The Government recognized that the right to work was dynamic and constantly evolving, and that relevant legal provisions should therefore be revised periodically and adapted to the specific reality of the changes taking place in production processes. In that regard, he said that the Government would spare no effort in defending labour rights, thereby reaffirming its commitment to supporting institutional strengthening and policy improvement to achieve social justice.

The speaker said that, in recent years, the ILO supervisory bodies had observed discrepancies between national legislation and practice, on the one hand, and international standards, on the other, with regard to the right of public servants not employed in the state administration to bargain collectively. Nevertheless, the Government wished to highlight the progress made over the period, for example, the intensive process of training and information undertaken with ILO assistance and the legal advances in labour matters. The Government representative added that the Government had stressed the importance of reviewing the 1998 ILO Declaration on Fundamental Principles and Rights at Work and its application by all member States of the Organization, and was confident that problems related to the Declaration and any other international labour standards could be overcome through international cooperation and technical assistance from the ILO.

With regard to the third matter mentioned above, i.e. the problem presented by direct agreements with non-unionized workers, the speaker felt that, although various reasons existed to promote direct agreements, collective bargaining held a privileged position, obliging the labour inspection services to reject a direct agreement, if a trade union existed that was entitled to negotiate a collective agreement. He stated that the Government was doing everything possible to implement the Committee of Experts’ recommendation concerning the importance of remedying the existing imbalance between the number of collective agreements and direct agreements. Any problems triggered by such imbalance would be dealt with specifically and efficiently through the adoption of positive measures, to strengthen trade union activity and promote collective bargaining.

The Government representative declared that, with a view to finding a satisfactory solution to the current situation through genuine social dialogue in which all social actors participated, the Government formally requested assistance from the ILO to avoid permanent workers’ committees and direct agreements having any anti-union impact in practice. Lastly, the speaker reiterated the Government’s will to evaluate its efforts to date and to solve the problems that the Committee had highlighted.

The Worker members deplored the comments made by the Employer member of Costa Rica, which were eminently against the very spirit of Convention No. 98. They requested that the case of Costa Rica be included in a special paragraph in the report of the Committee for the reasons of: the gravity and history of the case, the persistence of the Government in not realizing the results of efforts made though various visits, missions or assistance received, the total lack of political will of the Government which had manifested itself more clearly in the course of the discussion and the supplementary elements brought up through the discussion.

The legislative reforms and the change in national practices was of the greatest interest to workers. Therefore, the Worker members expressed their hope that in the conclusions, the Government would be requested to submit to the next session of the Committee of Experts, in 2009, a report concerning the measures taken to adapt its legislation to be in conformity with Convention No. 98, in line with the guidance received for a long time, and a plan of action indicating the results already obtained. This information would be discussed at the next session of the Conference Committee in 2010.

The Employer members, expressing appreciation for the final information provided by the Government, said it was clear that the new draft Act addressed both Conventions Nos 87 and 98. Nevertheless, the present case covered only Convention No. 98, which was a brief Convention dealing with the right to organize and to bargain collectively, rather than the broader application of trade union rights. They indicated that it was clearly essential for the Government to give priority to enacting the draft Act as soon as possible.

Conclusions

The Committee took note of the Government representative’s statements and the discussion that followed.

The Committee of Experts had raised, on numerous occasions, problems with respect to the slowness and inefficiency of the proceedings for sanctions and reparations in cases of anti-union acts, the cancellation of provisions in certain collective bargaining conventions and the huge disparity between the number of collective agreements and the number of direct agreements concluded with non-unionized workers.

The Committee noted that the Government representative referred to the tripartite commission’s activities and certain measures to accelerate the labour justice system proceedings, and recalled the legislative bills based on tripartite consensus, implementing the Committee of Experts’ comments, which had been before the Congress of the Republic for many years.

The Committee noted the Government’s commitment to create a bipartisan congressional committee with participation of all the State powers and the social partners to promote the adoption of the abovementioned bills, with ILO technical assistance. It also noted the information on Supreme Court decisions relating to collective bargaining in the public sector.

The Committee observed the continuing allegations raised relating to the threat which persisted in relation to any meaningful collective bargaining with trade unions and the anti-union climate in the country.

The Committee observed that, despite the fact that the problems raised had persisted for several years and that the case had been discussed on several occasions, there had been no significant progress in the application of the Convention in law or in practice. The Committee urged the Government to take concrete steps as a matter of urgency to turn its promises into reality, including the setting up, without delay, of the congressional committee. The Committee expressed the firm hope that it would therefore be in a position to observe substantial and tangible progress in the application of the Convention in the very near future and trusted that the bills upon which tripartite consensus had been reached, would be adopted without delay. It also trusted that the report due this year to the Committee of Experts would include a copy of the bills so that the Committee of Experts could verify their conformity with the Convention. The Committee expected that the Government’s report would provide information on the tangible progress made in law and in practice.

The Committee asked the Government to submit, this year, a detailed time schedule of steps taken and future steps so that the legislative reforms were made a reality.

Individual Case (CAS) - Discussion: 2006, Publication: 95th ILC session (2006)

A Government representative expressed formal concern at the procedure that had been followed in deciding to include his country on the list of cases to be examined by the Committee. He said that in doing so, not only had the efforts made by his Government to resolve the situation under discussion been disregarded, but also the work carried out by the ILO in his country. He recalled that the Committee of Experts had included his country in the list of cases that had been noted with interest following a close examination of the latest reports on Conventions Nos. 87 and 98. He said that he would take advantage of this opportunity to join forces and reiterate here his complete willingness to resolve the problems raised by the Committee of Experts. President Arias had taken office on 8 May, and yet cases were being discussed that went back to 1993, 16 years ago, under other administrations. He recalled his Government's commitment in relation to Convention No. 144, which called for dialogue to be recognized as an effective instrument for the application of international labour standards. All the specific situations referred to by the Committee of Experts (slowness of recourse procedures in the event of anti-union acts; legal restrictions on the right to collective bargaining in the public sector; the subjection of collective bargaining in the public sector to criteria of proportionality and rationality; and collective bargaining in the private sector) had received special attention from the previous government authorities. In relation to the slowness of recourse procedures, he said that this issue had been addressed seriously and significant progress had been achieved, which had been noted with interest by the Committee of Experts. He added that both the executive and the judicial authorities made unstinting efforts to find a satisfactory solution to this situation. In accordance with the objective of guaranteeing flexible and rapid judicial procedures on labour matters, his Government was pleased to be able to indicate that a Bill to reform labour procedures was under discussion in the Legislative Assembly. The Supreme Court of Justice had initiated the draft reform, with the support of the Government of Canada, through the project for the strengthening of labour administration in Costa Rica (FOALCO I), implemented by the ILO Subregional Office in Costa Rica, with the active participation of the Ministry of Labour and Social Security and the social partners. The representatives of employers' organizations and trade unions had examined and analysed the Bill, and had reached agreements taking into consideration the recommendations of the Committee on Freedom of Association. He emphasized, as important aspects of the Bill, the establishment of a special very rapid procedure for the protection of persons with specific protected status, including workers with trade union protection. He also referred to the application of the principle of oral procedure, which was one of the most important innovations, as its application permeated all the procedures and made it possible to apply other principles, such as mediation, concentration and publicity. Furthermore, the Ministry of Labour was continuing to strengthen alternative means of conflict settlement through the administrative authorities in its awareness that this method would help to reduce the cases brought to the labour courts, thereby decreasing the congestion of the judicial bodies and streamlined legal processes. Through the Centre for the Alternative Settlement of Disputes (RAC) of the Ministry of Labour, it had been possible to increase the number of cases dealt with to 3,421 during the course of 2005, with an average number of applications for hearings of 2,926 cases. This meant that there was an alternative dispute settlement machinery, with the alternatives being administrative or judicial.

With regard to the restrictions resulting from various court rulings on the right to collective bargaining in the public sector, and the subjection of collective bargaining in the public sector to the criteria of proportionality and rationality, he said that this was a subject that had been examined on its merits by the Committee on Freedom of Association (Case No. 2104), on which the Government had kept it informed. It had also been examined by the Committee of Experts and the Conference Committee. On the specific aspects of the case, the Government of Costa Rica had always and repeatedly sought ILO technical assistance, and the Office had always been prepared to provide such assistance. The Ministry of Labour had reactivated the Higher Labour Council, a tripartite advisory body, and had submitted to the Council and to the members of the Legislative Assembly various bills to strengthen collective bargaining in the public sector, including bills for the approval of Conventions Nos. 151 and 154 and the reform of labour procedures. The executive authority respected the autonomy of the judicial authority, as required by the political Constitution, which provided in article 9 that "The Government of the Republic is elected by the people, representative, alternative and responsible. It is exercised by the people and three distinct and independent authorities: the legislative, the executive and the judicial authorities. None of the authorities may delegate the exercise of functions attributed to them."

The Constitutional Chamber of the Supreme Court of Justice, the highest court in the country, the judgements of which were binding and applicable to everyone, had ruled unconstitutional clauses in collective agreements in the public sector on the basis of the criteria, among others, of proportionality, equality, rationality. In contrast, the ILO held that clauses in agreements could only be struck down due to defects of form or failure to comply with minimum legal standards, including constitutional provisions. It was a subject that needed to be addressed. He was awaiting the full text of the ruling to evaluate its legal implications. However, there were also positive cases in which appeals for unconstitutionality concerning collective agreements in the public sector had been set aside, as had occurred in June 2005. The court had decided that the impugned standard was a result of collective bargaining carried out in accordance with the law and jurisprudence and that the impugned right did not constitute an excessive privilege for the workers. The ruling was a triumph for the trade unions. In this respect, and based on this background, the Government of Costa Rica was even more interested in strengthening international cooperation in this field and in requesting appropriate ILO technical assistance.

With regard to trade union representativity, he referred to ruling No. 5000-93, which marked legal history in labour matters in the country. In this ruling, the Constitutional Chamber had endorsed international standards, including those contained in ratified ILO Conventions, and protected "trade union representativity" as an important aspect of freedom of association, as set out and developed in Conventions Nos. 87 and 98. It had also afforded special constitutional support for the "right of representativity", in its broader meaning, afforded to workers irrespective of whether or not they were union members, as provided for in Convention No. 135 and Recommendation No. 143. As a result, collective agreements had been given constitutional backing in Costa Rica. What was under discussion now was whether certain clauses impugned by the Ombudsperson for Inhabitants and an opposition political party should be declared void on the grounds that they were abusive. This was the issue of substance, and not whether the agreements themselves would be derogated. This matter had been addressed in a very responsible manner and confidence was being placed in ILO technical assistance to overcome the current problems. With regard to collective bargaining in the private sector, he recognized that there was a culture of resistance to the term "trade union" and that the cooperative movement had a more favourable connotation. Even though it could be concluded that there were widely varying reasons which encouraged the existence of greater numbers of direct accords than of collective agreements, it had to be acknowledged that, as noted by the Committee of Experts, both had a legal basis and were subject to the free choice of the sectors concerned. Nevertheless, the legislation in his country gave constitutional rank to collective bargaining, which accorded it a privileged position, obliging the labour inspectorate to reject a direct accord when there existed a trade union recognized as competent to negotiate a collective agreement.

He emphasized the complexity of the matter and said that the Government was addressing it with serenity and the will to find a solution, and that it had requested ILO technical assistance. He took the opportunity to reiterate this request and expressed the hope that in the near future a document would be available offering objective responses to the concerns raised by the Committee of Experts. He respectfully requested the Committee to value all the efforts undertaken to resolve these problems through the strengthening of the judicial system, the right to collective bargaining in the public sector, the reform of labour procedures and the extension of social dialogue. He recalled that President Arias, in his speech the previous day to the Conference plenary, had clearly stated that for the Government of Costa Rica there were not and could not be any concessions in the protection of workers' rights. He had said that he wanted Costa Rica to continue, above all, to be a country of law, in which court decisions were always complied with, but also in which the courts undertook to give effect to the principle of rapid justice for all workers.

The Worker members pointed out that it was the fifth time that the Committee had examined the case in the past seven years, the other discussions having taken place in 1999, 2001, 2002 and 2004. They also emphasized that a complaint concerning some matters of great concern had been submitted by five Costa Rican trade union confederations to the Committee on Freedom of Association last May. It consisted of a serious case involving repeated violations of Convention No. 98. Moreover, in 2002, they had called for a special paragraph on this case but the Committee had not agreed to do so. At that time, the Government had indicated its willingness to resolve the case. Although the discussions that had taken place, they had covered all the points raised by the Committee of Experts, the conclusions had been too weak, an issue that had been raised by the Worker members. Today, despite the various missions carried out by the ILO, namely the direct contacts mission in 2001 and the advisory mission in April 2005, the situation was even more alarming. One of the most serious problems encountered were the restrictions imposed by the Constitutional Chamber of the Supreme Court on the right to collective bargaining in the public sector. The Court had annulled many clauses in collective agreements, essentially provisions granting economic and social benefits to workers whereas the purchasing power of wages over the previous 15 years had steadily declined. In certain cases, the Court had annulled clauses related to trade union dismissals which prejudiced the exercise of trade union activities. These decisions, which were the result of appeals by deputies, undermined voluntary collective bargaining, reduced working conditions in public administration to minimal standards and jeopardized the ability of trade unionists to carry out their activities.

The Committee of Experts had been formulating the same observations for several years. In the public sector, the law excluded important categories of workers and denied them their right to collective bargaining. A body composed of several ministers reportedly interfered repeatedly in the collective bargaining process in this sector. With regard to the private sector, the legislative framework put in place favoured solidarist associations and there were now 130 accords signed by non-unionized workers, compared with only 12 collective agreements. Furthermore, workers seeking to establish trade unions were dismissed. If they were not reinstated, they were obliged to find work elsewhere and were often subjected to serious discrimination by employers. Judicial procedures, and more specifically sanctions, were slow and often ineffective. Finally, the Government had still not adopted the draft legislation. The Worker members referred to a meeting held between the Workers' group and the current President of Costa Rica, Mr. Oscar Arias, the Minister of Labour and several other representatives of the country. They expressed their satisfaction with the meeting as they had noted a certain openness to resolve the problems and re-engagement in genuine dialogue. They hoped that dialogue between the Government and the social partners could take place. This would contribute decisively to resolving several of the problems raised. While respecting the independence and decisions of the Constitutional Chamber of the Supreme Court, the Worker members called on the Government to accept a mission which included members of the Committee of Experts. In the context of this mission, meetings between the three branches of the authorities, together with the social partners, could help bring the national law and practice into conformity with the Convention. Furthermore, the mission could meet members of the Constitutional Chamber of the Supreme Court to discuss the violations of Convention No. 98. The independence of the judiciary in no way implied that it could act in total impunity and trample underfoot the rights enshrined in international law, such as the right to voluntary collective bargaining.

Social justice was at the heart of democracy and the right to organize and collective bargaining was its foundation. Weakening it through rulings, regulations, laws and practices violated Convention No. 98. The Worker members asked the Government to provide information on the points raised by the Committee of Experts in its conclusions, namely to order an independent investigation into the particularly high number of direct accords concluded with non-unionized workers and to provide statistics on the number of collective agreements concluded in the public and private sectors. Furthermore, they requested the Government to provide detailed information in its next report on all the points raised in the discussion, the measures adopted and the results achieved. It would also be desirable to ratify Conventions Nos. 151 and 154, which were directly related to Convention No. 98. The recently elected Government had inherited this very complex case of the violation of Convention No. 98. Nevertheless, despite the promises made, the situation had lasted for many years and the situation of workers was deteriorating. It was therefore to be hoped that the Government, as well as the executive and judiciary authorities, would take measures to promote the application of Convention No. 98 and bring national law and practice into conformity with it.

The Employer members thanked the Government representative for his participation in the discussion and recalled that this was the fifth occasion during the past seven years on which the Committee had discussed the case. However, it was clear that there was a will to make progress in the case. The Government had accepted a direct contacts mission, followed by an advisory mission the previous year, in accordance with the Committee's conclusions. It had prepared new legislation, which had been examined with interest by the Committee of Experts, and was considering the ratification of Conventions Nos. 151 and 154. There was therefore substantial evidence of goodwill and the Worker members had emphasized the positive nature of the meeting that they had held with the recently installed President of the country. In view of the direction in which the case was moving, it was not necessary, in the view of the Employer members, for the case to appear on the list of individual cases almost every year. Four main problems had been raised by the Committee of Experts. The first of these concerned the slowness of the procedures available in cases of anti-union acts. In this respect, a new Bill had been prepared with ILO assistance which, with certain exceptions, had the agreement of the social partners. This suggested that the environment was conducive to the adoption of legislation. With regard to the restriction of collective bargaining in the public sector, the comments made by the Committee of Experts were quite limited in scope, and even more so than in the 2004 observation. Once again, the Government referred to draft legislation to address the problem, which had been noted by the Committee of Experts. Another problem raised concerned the declaration of clauses in collective agreements as being unconstitutional. The Employer members noted that this occasionally occurred under other legal systems if the collective agreement violated a provision of the Constitution. Clearly, constitutional provisions were binding on all parties. The fourth issue raised by the Committee of Experts was the high number of direct accords in relation to the number of collective agreements. This was not in itself a violation of the Convention, which merely called for the promotion of voluntary collective bargaining. It might be the case that the unions involved should look into the root causes of such a situation so as to gain a clear understanding of why there were more accords. Perhaps the workers' organizations concerned could reflect on how they could become more attractive partners to the parties involved. With reference to the proposal by the Worker members that the Government should agree to receive a mission consisting of members of the Committee of Experts, the Employer members believed that the proposed measure was too heavy in relation to the clear progress that was being made in the case. Moreover, it raised the question of whether such a mission went beyond the mandate of the Committee of Experts. There was every indication that the Government was giving serious consideration to all the issues raised by the Committee of Experts.

The Worker member of Costa Rica reiterated that the union leadership had always participated in social dialogue in spite of the gravity of the situation regarding freedom of association in the country. This had been instrumental in concluding several agreements on different issues. However, the situation had not progressed regarding the recommendations made by the Committee of Experts, the Conference Committee and the Committee on Freedom of Association. In fact, in the last ten years it had presented more than 20 complaints to the Committee. The Workers were aware that the Government was confronted with an old problem but it rejected the argument that the problem lay in the division of state powers. He believed that the problem lay with the State as a whole and with its institutional bodies. The speaker expressed his concern that none of the outstanding issues were being resolved: the reintegration of union leaders dismissed for anti-union reasons or the slowness in obtaining legal rulings, among others. The report of the Committee of Experts was very complete and also included comments related to the non-application of Convention No. 87. In fact, if Convention No. 98 was not applied then Conventions Nos. 87 and 135 were also violated. This was noted by the mission which visited the country in 2001. The situation was even more serious today as apart from passing acts on which he had severe reservations, the Constitutional Chamber had declared unconstitutional clauses in collective agreements, which meant that the recommendations of the Committee of Experts were not taken into account. On the one hand, the Constitutional Chamber rejected recourse on violations of freedom of association and on the other declared unconstitutional clauses in collective agreements. In addition, it was unacceptable that recourse made by persons not directly related to the negotiations, such as representatives of a political party, was receivable. Many solutions had been proposed, as, for example, the proposal made two years ago to initiate a round table, social dialogue or to hold consultation between a member of the Committee of Experts and the legal authorities in the country. However, in practice there had been no concrete solutions.

The Employer member of Costa Rica noted that there were sufficient arguments of a legal nature to demonstrate that this was a problem that belonged to Costa Rican institutions where democracy required absolute respect for the division of power. Costa Rica should be considered as an exemplary democracy, with a long history of respect for human rights and social legislation. The 1943 Labour Code had been progressively modified to bring it up to date. There were many reforms that had been achieved through social dialogue. One of the most important issues in the discussion related to the Constitutional Chamber rulings resulting from recourse by the Ombudsman and by the General Attorney of the Republic. The Constitutional Chamber had the duty to interpret legislation and ensure its conformity with the national Constitution. The employers, the unions and the Government knew that they could not plead rights acquired that were against the national Constitution. In the case of collective agreements, the clauses considered as unconstitutional in respect to the rights of public servants were in question, rather than the instrument itself. The intent was to eliminate abuses that also affected the credibility of the social partners. He added that there was willingness to change. The Government was committed to decent work and fundamental rights, including the urgent need to make good the current shortcomings in collective bargaining in the public sector. The reforms required were mostly already before the Legislative Assembly. The negotiations were difficult but the problem actually lay in systemic difficulties. He concluded by noting that Costa Rica should not have been included in the cases discussed in the Conference Committee and believed that there were other countries for which ILO technical assistance was more urgent.

The Worker member of Nicaragua noted that the ruling of the Constitutional Chamber to declare unconstitutional clauses in collective agreements was a dangerous development which significantly affected the authority of both public and private enterprises and negatively impacted the rights of workers. When parties negotiated a list of demands, they did so in good faith as a principle of negotiation. For this reason, it was contradictory that the Constitutional Chamber declared unconstitutional clauses in collective agreements and, as a result, rights obtained through negotiations held in good faith. This decision to rule unconstitutional clauses of collective conventions violated Convention No. 98 and had a negative impact for Costa Rica and on the working conditions of 500,000 Nicaraguan workers in Costa Rica. For some months, the same Constitutional Chamber had forbidden non-Costa Rican workers to take up trade union leadership posts. At the same time, it had allowed some enterprises and institutions to limit the right to unionize Nicaraguan workers in Costa Rica. The Government needed to take measures to avoid collective agreements being blocked by legal rulings. The President of the Republic had declared to the plenary of the Conference that Costa Rican democracy was the oldest on the continent and that respect for workers' rights, including the right to negotiate collective agreements, was the basis of decent work and social stability. The speaker requested the ILO to ensure follow-up on the situation, including on the rights of Nicaraguan workers' working conditions and to provide technical assistance to ensure respect for freedom of association and collective bargaining. In conclusion, he rejected the presidential statement that the Government had a migration problem, as this was a denial of the fact that Nicaraguan workers were helping and supporting the Costa Rican economy.

The Government representative reiterated the Government's will to push forward reform that had already been presented to the Higher Council of Labour and the Legislative Assembly, and requested ILO technical assistance to achieve suitable solutions that would allow the situation to be moved forward in the framework of the national legal system.

The Worker members stated that this was a case of continued failure to apply the Convention and that questioning the credibility of the national trade unions did not help to improve the situation. Having noted the strong intentions announced by the Minister of Labour and the position expressed by the President of the Republic, the Worker members considered that a direct contacts mission, which would also meet with members of the Constitutional Chamber, would assist in achieving progress in the near future. Such a mission would also strengthen social dialogue in the country.

The Employer members stated that this was a case in which some progress had been made over the years, but some additional steps were necessary. The Committee should welcome the positive attitude of the Government and its request for technical assistance. The Committee should urge the Government to bring as soon as feasible its law and practice into conformity with the Convention.

The Committee noted the information provided by the Government representative and the debate that followed. The Committee observed with concern that the pending issues referred to: the slowness and inefficiency of recourse procedures in cases of anti-trade union discrimination; the restrictions to collective bargaining rights in the public sector due to several judgements of the Constitutional Chamber of the Supreme Court; the submission of public sector collective bargaining to criteria of proportionality and rationality, by reason of the case law of the Constitutional Chamber of the Supreme Court, which had ruled as unconstitutional some clauses of public sector collective agreements; and the enormous gap between the very low number of collective agreements signed with trade union organizations in the private sector, and the number of direct accords concluded by unorganized workers.

The Committee noted the information provided that an advisory mission had taken place in April 2005 and that, for several years, draft legislative or constitutional amendments had been submitted to the Legislative Assembly, with a view to remedying the delays in proceedings that applied in cases of anti-trade union acts and the restrictions in public sector collective bargaining. According to the Government, a draft bill to reform labour procedures so as to resolve the problems of judicial delays, which had already been attenuated by the introduction of the system of alternative means for the settlement of disputes, had recently been submitted to the legislative assembly.

The Committee noted the Government's statement that the first steps of the new Government had been to reactivate the Higher Labour Council, a tripartite dialogue body, and to give renewed impetus to the draft laws that had been submitted to the Legislative Assembly, including those relating to the ratification of Conventions Nos. 151 and 154. The Government was awaiting the full judgement of the Supreme Court relating to the annulment of certain clauses in some collective agreements. Collective agreements were recognized by the Constitution, which also obliged the labour inspection to reject a direct accord with non-unionized workers when a union already existed and was entitled to negotiate.

The Committee emphasized the significance of the problems raised by the Committee of Experts, and the importance of putting in place adequate and speedy measures of protection against anti-trade union acts, as well as full recognition in law and in practice of voluntary collective bargaining in the public and private sectors, in the terms set out in the Convention.

Taking into account that the issues mentioned above had been raised for several years, the Committee expressed the firm hope that the necessary measures would be taken in the very near future and that the draft laws currently being examined would be adopted so as to ensure the full application of the Convention in law and in practice. The Committee urged the Government to make all necessary efforts in this regard and requested it to provide the Committee of Experts with a detailed report in this respect. The Committee welcomed the Government's request for ILO technical assistance and therefore decided that a high-level mission from the Office should visit the country to facilitate the resolution of the pending difficulties in the application of the Convention.

Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

A Government representative (Minister of Labour and Social Security) expressed concern at the process that had been followed for the selection of the countries included in the list of individual cases to be examined by the Conference Committee. In his view, this process disregarded the efforts that had been made by his Government to resolve the situation that was currently under examination, as well as the work of the ILO's Subregional Office for Central America, which had provided technical and financial assistance, and the cooperation of the United States and Canada. He referred to an agreement concluded with Canada in 2002 which focused on compliance with and improvement of the ILO's fundamental principles and rights at work. Within this framework, programmes were being carried out to strengthen the labour administration and he said that efforts should be united to banish any trace of precariousness in labour relations. He expressed the entire disposition and willingness of the Government to resolve the problems raised by the Committee of Experts, which had noted the efforts made by the Government, many of them based on tripartite collaboration and the assistance of the ILO. He stated that all the specific situations referred to by the Committee of Experts relating to the slowness of recourse procedures, the judicial practices for the submission of collective bargaining in the public sector to criteria of proportionality and rationality, and also the collective bargaining in the private sector, had been carefully noted by the government authorities. With regard to the slowness of recourse procedures, he indicated that the executive authorities had submitted a series of legislative reform proposals to Parliament, which had been noted by the Committee of Experts, including in particular Bill No. 14676, which was intended to extend the legal protection of unionized workers and workers' representatives and to establish a procedure to be observed by all employers prior to justified dismissals, as well as a rapid judicial procedure to which trade union members and leaders could have recourse in the event of dismissal for trade union reasons. He added that the Ministry of Labour and Social Security had established alternative means of dispute resolution through an administrative procedure, in addition to the judicial procedures that already existed, through the incorporation into its structure of the Alternative Labour Dispute Settlement Centre (RAC). This form of dispute settlement constituted a regional model and in 2003 RELACENTRO had undertaken a campaign to disseminate the methodology used by the RAC. A significant group of the Centre's collaborators had been trained in conciliation methods and techniques, as had labour inspectors and officials responsible for administrative labour conciliation machinery. In this way, it had been possible to achieve a positive outcome in 79 per cent of the cases submitted to this procedure, which had relieved the judicial bodies of their workload.

The speaker further noted the draft reform of the Labour Code, the judicial policies for conciliation and the organization of a seminar for judges on international standards and their impact on national law, held in 2003 in collaboration with the ILO. Various circumstances, including the slowness in the approval of the draft legislation, which was of an innovative nature, had prevented more rapid progress than the Government had wished to achieve. With reference to the issue raised by the Committee of Experts concerning the restrictions on collective bargaining in the public sector as a result of various court rulings and the subjection of collective bargaining in the public sector to criteria of proportionality and rationality, he observed that it was necessary to bear in mind that his country was a democratic State with a division between the three branches. For example, the fact that the draft legislation had not been adopted was not indicative of a lack of willingness, but of the failure to achieve unanimity in the plenary Legislative Assembly, which was the competent authority for the adoption of legislation, and he emphasized that this formed part of democratic rules. The executive authorities had submitted various pieces of draft legislation to the Legislative Assembly which responded to the comments of the Committee of Experts, including those which related to the approval of Conventions Nos. 151 and 154, the amendment of article 192 of the Constitution, the legislation concerning collective bargaining in the public sector, and the amendment of section 112 of the General Public Administration Act. He indicated that awareness-raising efforts had been undertaken, directed among others at the legislative authorities, with the assistance in March 2003 of an ILO specialist, and that even the employers no longer raised objections to the ratification of Conventions Nos. 151 and 154. Awareness-raising efforts had also been undertaken in relation to the judicial authorities through the presentation of a study defending collective bargaining in the public sector, which had been prepared with the assistance of various workers' organizations, although the executive authorities had not been able to exert pressure on the legislative and judicial branches. He recalled that, under the protection afforded by Decree No. 29576-MTSS of 31 May 2000 on collective bargaining in the public sector, which had been revised by ILO specialists, collective bargaining was being undertaken throughout the public sector. He emphasized that there were no longer obstacles to collective bargaining in the public sector, as indicated by the Office of the Attorney-General of the Republic, and that the institution of collective agreements was not endangered in Costa Rica. At the present time, the topic of discussion in his country was whether a number of clauses should be declared void which the People's Ombudsman and an opposition political party considered to be abusive.

Turning to collective bargaining in the private sector, the speaker hoped that a response would be given to the request for technical assistance made to the ILO's Subregional Office for Central America. He indicated that direct negotiation and collective agreements could be freely chosen by the parties concerned, but that collective bargaining benefited from privileged protection. He referred in this respect to the Administrative Instruction of 4 May 1991 on the treatment to be reserved for direct accords submitted when collective bargaining had previously been requested, which had to be complied with by the National Inspectorate when accords were submitted to it for registration. He expressed the hope that the Conference Committee would appreciate the efforts made and said that his Government undertook to continue working along the same lines and to achieve the adoption of the draft legislation referred to above.

The Employer members referred, in the first place, to the slowness and ineffectiveness of the recourse procedures available for anti-union acts. They noted the most recent measures outlined by the Government representative and recalled the importance of such measures being adopted in agreement with the social partners. The Government representative had also provided detailed information concerning further measures relating to the settlement of disputes and cooperation with the ILO, which should be welcomed as a positive indication that the case was moving along the right lines. The second issue concerned the restriction of collective bargaining in the public sector. However, the comments of the Committee of Experts in this respect were very cautious, merely indicating that there was good reason to believe that workers in the public sector were excluded from collective bargaining. These comments indicated that the legal situation was not clear. The Employer members further noted the reference by the Committee of Experts to a recent decree which granted public servants the right to collective bargaining, and which appeared to constitute substantial progress, as well as the uncertainty regarding the legal situation of a large number of agreements in the public sector and their recognition under the terms of the Constitution. While it was difficult at the present time to take into consideration all of the additional information provided by the Government representative, greater clarity should be provided by legal rulings that were currently expected, including one that was before Parliament. The fact that there was broad support within Parliament for the rapid adoption of legislative measures showed that there was serious intention to introduce changes in the law.

Turning to the individual case referred to by the Committee of Experts in which the Constitutional Chamber had declared unconstitutional certain clauses of a collective agreement on grounds, in particular, of lack of proportionality and rationality, the Employer members expressed a certain surprise at the insistence by the Committee of Experts that clauses of agreements could only be struck down on grounds of procedural flaws or non-compliance with minimum legal standards. They pointed out that the views expressed by the Committee of Experts on this matter were based on the text of the Convention and it was therefore for the Government to decide the extent to which it would follow the advice of the Committee of Experts. Moreover, they indicated that principles of proportionality and equality, which were enshrined in the Constitution of Costa Rica as in many other countries, were binding upon the parties to collective agreements. On the issue raised by the Committee of Experts concerning the high number of direct accords concluded by non-unionized workers in the private sector, in comparison to the number of collective agreements concluded by trade union organizations, the Employer members could understand that the trade unions were not pleased with the situation. However, this did not mean that the situation was in violation of the Convention, which required the promotion of voluntary collective bargaining, and did not require the Government to either limit or prohibit direct negotiations in any way. The Convention did not limit the ability to contract freely. In this case, as in all other areas in democratic societies, competition was at work and there were undoubtedly good reasons for employers to wish to conclude accords with workers. The Employer members suggested that the trade unions could, following a suggestion made by the Committee of Experts, by examining the reasons for the rise in the number of direct accords, identify ways in which workers' organizations could become more attractive to employers. It was nevertheless to be hoped that the situation would change in Costa Rica and that tripartite collective bargaining would take on greater importance. In conclusion, in view of the readiness that had been shown for dialogue, and the positive measures noted by the Committee of Experts, the Employer members believed that the information supplied during the discussion provided sufficient material for further examination of the case by the Committee of Experts.

The Worker members thanked the Minister of Labour and Social Security for the information that he had provided. It was not the first time that the Conference Committee had examined this case of the violation of the Convention by Costa Rica. In fact, the Committee had examined this case in 1999, 2001 and 2002. Since 1999, the Committee of Experts had made four observations in which the main questions related to the following points: (1) the recourse procedures in the event of anti-union acts; (2) restrictions on the right to collective bargaining in the public sector; (3) subjecting collective bargaining in the public sector to criteria of proportionality and rationality, and (4) the difficulties relating to collective bargaining in the private sector. With regard to the recourse procedures for anti-union acts, the Committee of Experts had reiterated its question from 2002 and expressed the firm hope that the Bill in question would be adopted in the near future. Needless to say, promises were renewed each year but there was no action. As emphasized by the Committee of Experts, this case was therefore more serious bearing in mind the importance of the problem of the slowness of judicial procedures in cases of acts of anti-union discrimination. With regard to the restrictions on the right to collective bargaining in the public sector, the Government had indicated in 2002 that, following the technical assistance mission, a Bill would be introduced. Nevertheless, in its observation, the Committee of Experts recalled that the Convention only allowed for the exclusion from its scope of application of public servants engaged in the administration of the State (Article 6 of the Convention), expressed the firm hope that the draft texts referred to by the Government would be adopted in the very near future, and requested the Government to keep it informed in this respect. Yet, in 1999, the Committee of Experts had regretted that, despite being a fundamental right, there had been no significant developments for many years with regard to the right of public servants who were not engaged in the administration of the State to bargain collectively to determine their terms and conditions of work through collective contracts or agreements. Under these conditions, the Committee of Experts had expressed the firm hope that the legislation on this matter would be adopted in the near future. The Government was hiding behind the inertia of the Legislative Assembly. This manoeuvre could be justified for one year, perhaps two, but this situation had gone on for over five years.

With respect to subjecting collective bargaining in the public sector to criteria of proportionality and rationality, this constituted a serious violation of the Convention with regard to a principle that was easy to understand and even easier to implement, namely non-interference in collective bargaining. The Government should not interfere with the negotiations either directly or by a decision of the Constitutional Chamber, as was presently the case with the agreements concluded with the public oil refinery RECOPE. In 2002, the Worker members had shared the opinion of the Committee of Experts when it emphasized that the ruling in question could have had very prejudicial effects on the autonomy of the parties and could devalue collective bargaining itself. The Committee of Experts had reiterated its conclusions. Finally, with respect to the difficulties relating to collective bargaining in the private sector, the Committee of Experts had once again emphasized that the ILO's instruments envisaged direct negotiation between employers' and workers' representatives only in the absence of trade union organizations. The Committee of Experts had also pointed out that the Convention advocated encouraging and promoting negotiation with workers' organizations by means of collective agreements. How should the examination of the case of violations of the Convention by Costa Rica be summarized? On the four points raised, the Committee of Experts had reiterated questions to the Government. How were the Government's efforts to be judged? If it was not a case of political bad faith, it was an instance of institutional negligence, the consequences of which were extremely grave for workers and the general climate between the social partners in Costa Rica. It was a case of a flagrant violation of the Convention, which was as fundamental as Convention No. 87. In 2001, a technical assistance mission had visited the country, although without real success. Now a direct contacts mission would be necessary. The question was nevertheless whether the Minister of Labour and Social Security would accept such a mission.

The Worker member of Costa Rica stated that the Conference Committee had been examining this case for many years and that there were recurrent aspects, such as the confusion, uncertainty and legal insecurity existing in the country on this matter. The limitations in the private sector, and particularly the absence of the freedom to establish trade unions, had already been discussed. There was total confrontation in the public sector, where the Convention was violated. The numbers of those in the country benefiting from collective agreements amounted to a mere 3 per cent of the workforce. While recognizing the efforts made by the Ministry of Labour, he emphasized that they were insufficient because the problem was structural. He added that the right of organization and of collective bargaining were the subject of ferocious attacks by the authorities and other political and social actors. Both the legislative branch and the Office of the Attorney-General of the Republic, the executive and judicial authorities had developed their strategies to combat these rights. He noted, for example, that none of the undertakings made by the Government to the Conference Committee had been fulfilled. None of the draft legislation referred to by the Government had been adopted by the plenary Legislative Assembly despite the power of the executive authorities to include them on the legislative agenda. The Office of the Attorney-General refused to approve resources for institutions which enjoyed the benefits achieved through negotiation and the financial authorities had issued a Decree to prevent the payment of legal benefits in excess of those set forth in the Labour Code. All of the collective agreements in the public sector, which were few in number, had been found to be flawed by the Constitutional Court. There were enterprises, such as JAPDEVA, which denied leave for trade union purposes, even though the agreements in question had not been found to be unconstitutional. He said that the workers were very fearful because the Constitutional Chamber had not rejected any of these measures and the trend was to call into question anything which went beyond the statutory minimum and was the product of negotiation.

The Employer member of Costa Rica emphasized that many efforts had been made in relation to the Legislative Assembly and the judicial authorities to resolve the problems raised previously. He recalled that article 19(3) of the ILO Constitution provided for the need to take into account different or special circumstances of member States, which he considered to be fundamental for a representative and complex democracy, such as Costa Rica. He was of the view that trade unionists often complained that there was insufficient space for collective bargaining in both the public and private sectors, but were unable to recognize their own errors. He added that the country had abused collective bargaining in the public sector, which had sent negative signals to employers. He gave the example of a trade unionist in the public sector, who had written an article in the newspaper La Extra at the end of 2002 on collective agreements and who had noted that the collective agreements had a negative image among citizens. When abuses were made public, trade union leaders failed to address the situation and refused to give explanations. When such situations arose, the trade union movement as a whole was called into question. This issue had generated much debate in the various political streams that were represented in the Congress of the Republic.

He considered that the main point at issue was to develop better sectoral relations, and that the social partners should not distance themselves from each other. He was of the view that trade unionism, like democracy, achieved its value through action and should be subjected to a far-reaching revision of its principles so that it could be converted into an alliance of productive sectors which would also be concerned with poverty reduction and job creation. He added that many of the issues raised by the Committee of Experts were the subject of extensive debate, which was slowing down the legislative process in Costa Rica. He indicated that employers had sent a note to the Legislative Assembly calling upon it to approve the ratification of Conventions Nos. 151 and 154. Finally, he emphasized that it was fundamental to safeguard international institutions such as the ILO, which were so valuable to the international community. He expressed his concern at the number of times the word "transparency" had been used in the debate on the report of the Committee of Experts. He concluded by stating that it was necessary to seek firm criteria and achieve a good balance before adding a country to the list of individual cases so that the ILO could provide the necessary assistance to those countries which really needed it. He considered that the case of Costa Rica should not have been discussed in this context.

The Worker member of Norway recalled that violations of labour rights had been continuing in Costa Rica for a long time. The country was well known as the birth place of "solidarism", the system by which trade unions were replaced by associations of workers which did not have the right to collective bargaining. In the beginning, these associations were established by employers who provided their members with extra benefits, such as insurance, subsidized goods and, in some cases, higher wages than unionized workers. At the same time, union activists were harassed and, once the union had been destroyed, the employers were free to deal with the workers as they wished. She said that this was a very effective method of avoiding social dialogue. There were currently only 13 collective agreements in the private sector in Costa Rica and there was even a proposal before the Supreme Court to cancel all collective agreements. She explained that some business interests in Costa Rica viewed collective agreements as being preferential, as they accorded workers better benefits than those in enterprises which were not organized. The preferential clauses included wages and time off work to carry out union activities. In a flagrant violation of the Convention, the Office of the Attorney-General had even proposed that negotiated agreements in the petroleum sector be declared illegal. In conclusion, she said that the good intentions of the Government and the desire to retain a clear division between the judicial, legislative and executive branches could not be used as an excuse for accepting violations of fundamental labour rights. The judicial authorities needed to be made aware of the country's obligation to comply with the Convention.

The Worker member of the United States recalled that the Conference Committee had for many years been calling upon Costa Rica to bring its law and practice for both the public and private sectors into conformity with the Convention, but on each occasion the promises had not been fulfilled. While welcoming the legislative proposals and amendments pending before the Legislative Assembly and the petitions made by the Ministry of Labour to the Constitutional Chamber of the Supreme Court of Justice to resolve the country's failure to comply with the Convention, he recalled that the necessary action depended upon the cooperation and good faith of all three branches, which had been lacking for the past 15 years. The division of powers between the three branches was no excuse for failure to comply with the country's international obligations. Despite a decree adopted in 2001, which supposedly excluded only the highest ranking public servants from the scope of collective bargaining and, despite the claims by the Minister concerning the existence of de facto collective bargaining in the public service, the highest judicial authority had ruled that all public employees with statutory employment status were denied the guarantees of the Convention under the terms of article 192 of the Constitution. Although, as it had also promised to do in 1992, the Executive Branch had submitted proposals to the National Assembly for the ratification of Conventions Nos. 151 and 154, the Constitutional Chamber had declared it practically impossible to approve these Conventions in view of the restrictions imposed upon collective bargaining in the public sector under the terms of articles 191 and 192 of the Constitution. The Constitutional Chamber had also committed a flagrant violation of the Convention by invalidating various benefits agreed to through collective bargaining with public enterprises, while the appeals for reconsideration made by the Executive Branch had been found to be time barred.

With regard to the private sector, the delays and ineffectiveness of measures to remedy anti-union dismissals, combined with the legal recognition of direct accords between employers and groups of individual employees, had completely undermined the rights of workers in the country to organize and participate in collective bargaining. It was therefore no wonder that the organization rate in the private sector was extremely low. Although the Government was proposing yet another comprehensive Bill to remedy the crisis of anti-union reprisals, this was likely to be undermined by its failure to make a true concerted effort to press the matter in the Legislative Assembly. The continued and very serious failure to comply with the Convention was of grave concern to the trade unions of the countries covered by the proposed United States-Central American Free Trade Agreement, which did not call for compliance with ILO standards, but only with existing national labour legislation. In view of the failure to give effect to the good intentions that were signalled, the Committee should make a strong call for the most effective measures possible.

The Government member of the Dominican Republic was satisfied with the efforts made and by the progress achieved in application of the Convention. He stressed that the Government of Costa Rica maintained permanent dialogue through collective bargaining and had drafted laws to amend and improve trade union rights in the country and to strengthen the Labour Inspectorate. He emphasized the part played by Costa Rica in the implementation of the Social Dialogue Agenda for the subregion, held in the Dominican Republic. The speaker trusted that progress would be made regarding the judiciary and remained convinced of the Government's willingness to negotiate collective agreements within the legal framework.

The Government member of Nicaragua declared that the Government of Costa Rica had clearly indicated that many of the comments made by the Committee of Experts had been implemented, resulting in better protection and security for the exercise of the fundamental rights of association and collective bargaining. She added that there were sufficient precedents to demonstrate the Government's good will, as was noted by the Employer members, to respond to the requests from the ILO supervisory bodies. She stressed the Government's willingness to ensure full collective bargaining rights in accordance with the spirit of the Convention. The Committee of Experts had noted with interest on previous occasions progress as to the number of workers required to establish a trade union being reduced to 12. She recalled that between 1991 and 2001, there had also been progress made, not only with respect to this Convention, but also with respect to Conventions Nos. 87 and 135. The speaker expressed the hope that the progress made would be taken into account. The Government of Costa Rica was moving in the right direction and was making all possible efforts to find its place in a globalized world.

The Government member of Mexico was grateful for the statement made by the Minister of Labour of Costa Rica and praised the efforts made by the Government to comply with Conventions Nos. 151 and 154, as requested by the Committee of Experts. She expressed the hope that the conclusions would adequately reflect the political will of the Government of Costa Rica to adapt and improve workers' protection, to apply the laws that guaranteed full enjoyment of the right to collective bargaining and to address the issues arising from the slowness of judicial procedures.

The Government member of Honduras emphasized the progress made by the Government of Costa Rica as regards ensuring the application of rights at work and the core Conventions as well as respect for the promotion of good industrial relations having regard to the social situation of the country. She also recognized the information and awareness-raising activities carried out on collective bargaining and conflict resolution. In this respect, she commended the progress made by the labour administration thanks to the creation of the Labour Dispute Settlement Centre, which was a model for the region and which would reduce legal delays.

The Government member of El Salvador recognized the efforts made by the Government of Costa Rica at the legislative level with the aim of improving freedom of association and collective bargaining.

The Government representative noted that collective bargaining and the conclusion of collective agreements in the pubic sector were allowed by decree while the draft Bill had not yet been approved. The high ranking civil servants were the only ones excluded because their inclusion in the past had given rise to a vote in the Constitutional Chamber which had considered void certain clauses of a collective agreement for abuse of rights. The Constitutional Chamber had not cancelled agreements but only certain provisions which it had considered abusive. In these conditions, the Government indicated that it joined the trade unions in opposing this interference of the judicial power in trade union matters. The speaker added that the effective presentation of Conventions Nos. 151 and 154 to the Legislature for ratification had just taken place in 2002 since the presentation made by a Member of Parliament in 1983 had been considered void.

The speaker recognized the existing problems in his country and expressed the Government's will to solve them in agreement with the trade unions. To this end, the relevant legal initiatives had been brought before the Legislature in conformity with the ILO's recommendations. He also noted that many meetings were carried out with the judicial and legislative branch so that they abstained in the future from cancelling collective agreement clauses. He emphasized that the validity of freedom of association and collective bargaining was not questioned in Costa Rica and that the parliamentary procedures like those of all democratic systems were slow but functioned. Freedom of association and collective bargaining were fundamental rights, acquired and consolidated for all workers in Costa Rica. The speaker acknowledged the existence of two pending matters. First, the lack of willingness of a group of opposition members in Parliament to approve Conventions Nos. 151 and 154 as well as the draft bills which would allow a consolidation of workers' rights. Second, the need to avoid in the future that the Constitutional Chamber cancelled collective agreement clauses that it considered abusive. This required a wide and serious discussion and, to this end, he proposed that a dialogue process be initiated within the ILO with the participation of the legislative and judicial authorities as well as the Ombudsperson, with the objective of finding a solution to the problems raised in accordance with the Costa Rican realities and in conformity with the fundamental ILO principles.

The Employer members recalled that the issue of restrictions on the right to collective bargaining in the public sector was of particular importance. However, the Committee of Experts had noted substantial improvements through the adoption of a Government Decree on regulations for the negotiation of collective agreements in the public sector under which only public servants of the highest level were excluded from the right to collective bargaining. The Government should take measures in respect of those public servants, who were still excluded. With regard to the legal status of collective agreements, the Convention did not prohibit supremacy of the Constitution or legislation over such agreements. As far as the private sector was concerned, the Employer members recalled that the Convention did not prohibit direct accords concluded between employers and non-unionized workers. However, they recognized that the Convention promoted measures to encourage negotiations with workers' organizations, rather than direct negotiations between employers and workers. In conclusion, the Employer members noted from the statement of the Minister that the Government was prepared to continue the dialogue. However, this dialogue had to be held in the country and not in the Conference Committee. They expressed the hope that the Committee of Experts would soon be able to note progress in this matter.

The Worker members stated that, if the issues raised by the different speakers were really constitutional problems, the solution would not be found, as in 2001, in a technical mission, but rather in a direct contacts mission, as it was important to promote genuine dialogue in the country itself. Finally, they reiterated that, as far as they were concerned, the case still constituted a continued failure to apply the Convention.

The Worker members believed that the conclusions adopted were too weak, given the situation. During the discussion, promises had been made, while the facts - which were complex - had not been sufficiently clarified. The Worker members regretted that a direct contacts mission had not been accepted and remained sceptical about the idea of a dialogue process in Geneva to attempt to resolve the issues outlined.

The Committee took note of the oral information provided by the Minister of Labour and Social Security and the discussion that followed. The Committee noted with concern that the problems pending for many years related to the ineffectiveness of the protection against anti-union acts, restrictions on the right to collective bargaining in the public sector and questions relative to collec- tive bargaining in the private sector (the proportion between collective agreements and direct accords with the workers). The Committee noted that these questions had been submitted to the national tripartite commission and that the Government had requested technical assistance from the ILO Subregional Office for Central America. The Committee noted that the Government agreed on the changes requested by the Committee of Experts. The Committee noted the information provided by the Government in relation to various draft substantive and procedural laws and other measures and steps on all the pending problems, as well as the alternative system for the resolution of conflicts which had been recently implemented. The Committee requested the Government to take concrete measures urgently both in law and in practice to guarantee the full application of the Convention and firmly hoped that progress could be observed in the very near future with regard to all the important problems raised. The Committee noted that the Government representative had requested the establishment of a dialogue process at the ILO headquarters with the participation of the legislative and judicial authorities as well as the Ombudsman, in order to find a solution to the problems through dialogue with the ILO experts and civil servants. The Committee requested the Government to send a complete report to the Committee of Experts. The Committee expressed the hope that this process of social dialogue would facilitate the solution to the questions raised by the Committee of Experts.

The Worker members believed that the conclusions adopted were too weak, given the situation. During the discussion, promises had been made, while the facts - which were complex - had not been sufficiently clarified. The Worker members regretted that a direct contacts mission had not been accepted and remained sceptical about the idea of a dialogue process in Geneva to attempt to resolve the issues outlined.

Individual Case (CAS) - Discussion: 2002, Publication: 90th ILC session (2002)

The Government has communicated the following information.

At the 89th Session of the International Labour Conference in June 2001, the Committee on the Application of Standards formulated conclusions, after having examined the application by Costa Rica of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). In its conclusions, the Committee notes a divergency between the provisions of the Convention and national practice. Therefore, the Government of Costa Rica requested ILO technical assistance and, in agreement with the Minister of Labour, a technical assistance mission was sent from 3 to 7 September 2001.

The Government of Costa Rica, desirous of complying with the recommendations of the technical assistance mission and firmly convinced of the necessity to set up institutions permitting workers to work in the full exercise of their rights, has attempted to implement actions to modernize relations among the Government, the unions and the employers.

The efforts undertaken by Costa Rica to reach these goals can be summarized as follows:

1. Constitutional reform recognizing the right of collective bargaining in the public sector

The government party group in the Legislative Assembly has prepared a draft constitutional reform of article 192 of the Constitution through which the right of collective bargaining in the public sector will be recognized at the highest level.

The proposed reform expressly provides:

Article 192. With the exceptions that this Constitution and the civil service statute may determine, public employees shall be appointed on the basis of proven ability, and may be removed only on the grounds for justified termination as set forth in the labour legislation; or in case of a forced reduction in services, either because of lack of funds or in the pursuit of a better organization of such services. Except for high-level public servants of the public administration and those in charge of public administrative management, as designated by law, public sector employees have the right to negotiate collective agreements (the part in bold characters is the proposed amendment).

The purpose of this reform of the political Constitution is also to put an end to jurisprudential criteria which, according to the observation of the Committee of Experts, can create "confusion, uncertainty, even legal insecurity", the right of negotiation being henceforth clearly set forth in the Constitution.

It must be noted that the draft amendment is the result of dialogue between the principal trade union organizations and a committee appointed by the Government and later brought into the Legislative Assembly, for the purpose of constitutional reform. This was demonstrated by the announcement presenting this reform, made during a press conference by the leader of the Social Christian parliamentary group, Mario Rodondo, a representative of the "National Association of Public Sector Employees" and a representative of the "Federation of Public Service Employees", which considered these events as "an important sign of the support of the Government to strengthen trade unionism". (La Nación Sat., 11 May 2002 (p. 6A), a widely circulated national newspaper reporting this news, announced by two trade union representatives and the head of the government party in the Legislative Assembly.)

In addition, and as a necessary complement to facilitate the prompt and effective implementation of this important constitutional reform, the Executive proposed a legislative reform in order to introduce the right of collective bargaining in the General Law on Public Administration and to raise the provisions of Executive Decree No. 29576-MTSS of 31 May 2001 (on negotiating collective agreements in the public sector ) to legislative rank.

2. Legislative reform relating to collective bargaining

Under the title, "Legislative reform relating to collective bargaining" of 23 April 2002, the Executive presented the Legislative Assembly with a draft reform including adding a fifth paragraph to article 112 of the General Law on Public Administration (No. 6227 of 2 May 1978) which states:

5. All public sector employees who are not involved in public administration management as set forth in the special law promulgated to that effect, have the right to negotiate collective labour agreements, in conformity with article 62 of the Political Constitution, in both public enterprises and economic services of the State as well as in the rest of the public administration.

This general standard is complemented by the abovementioned draft "Law on the negotiation of collective agreements in the public sector" intended to regulate provisionally the dispute settlement regime and the collective bargaining of civil servants who do not exercise a public function in the administration.

The draft law provides that all employees of the State, of state enterprises as well as workers who do not exercise functions linked to administrative management can negotiate collective agreements. According to the draft, principally those who exercise administrative functions are not covered by this right: ministers, vice-ministers, senior public servants, the Attorney-General and Deputy Attorney-General, the Comptroller General and Deputy Comptroller General, Public Mediator and Deputy Public Mediator, the personnel of enterprises or institutions referred to in the preceding article when they are members of the Board of Directors, Executive-President, Executive Director, manager or deputy manager, auditor or deputy auditor or in charge of the management of public monies. It is the same for public servants exercising advisory functions in the fiscal services who are involved in collective bargaining. This exception for public servants in the State administration is set according to Article 6 of Convention No. 98 applicable to persons employed by the State and acting on behalf of the organs of public authority.

This draft also defines the subject matter of the negotiations (including trade union rights and guarantees, understood as being those in ILO Recommendation No. 143 concerning workers' representatives, as expressly defined by the text) as well as, inter alia, the application of disciplinary sanctions, the income tax regime, the preparation of job descriptions, procedures for awarding grants, and measures for occupational safety and health. On the other hand, the draft identifies the persons empowered to negotiate and resolve conflicts, as well as the procedure to follow for negotiation (including sessions, necessary conditions, acts).

As this concerns statutory relations, and budgetary relations in most cases, the pre-existing norms, directives and generally the legal regime, cannot be altered by negotiation. A high-level committee on negotiation policy has therefore been created in a collegial body on which different directors sit. The latter should set directions to be followed during negotiations. The purpose of creating this Committee is to fully implement negotiations by avoiding that the agreement between the parties cannot be executed due to legal or budgetary impossibility. The proposed text also sets the internal procedure of the Committee, its obligations and those of the interested parties, and the deadlines for its implementation. It is important to note that the text envisages sanctions for non-implementation, both on the part of management, as well as the Committee.

The draft Law in addition determines the validity of agreements and excludes the application of the Law to municipalities and State universities, given the full autonomy that the latter exercise, as provided in the political Constitution.

It is necessary to note that the text of this legislative reform has been elaborated by a bipartite committee - Government and trade union organizations - which implies acceptance of this process.

3. Reform of various articles of the Labour Code relating to freedom of association

Article 60 of the political Constitution provides for freedom of association both for employers and for workers. This fundamental right has influenced the entire legal system of Costa Rica with a view to genuine protection of freedom of association.

The year 1993 marks a special date for trade union rights with the incorporation of Law No. 7360 of 4 November in the Labour Code, creating Chapter 3, concerning trade union protection. The same year, the Constitutional Chamber of the Supreme Court of Costa Rica recognized a special right of protection for unionized workers generally and that trade union leaders were irrevocable, benefiting from full and complete stability, with the only exception being dismissal for justified reasons as provided for by law. Aware of the need to improve the regime of trade union protection, the Executive has, in addition, presented the Legislative Assembly with a draft reform of the chapter on freedom of association of the Labour Code, which is presently on the parliamentary agenda. This draft is intended to expand the legal protection of unionized workers and workers' representatives, in order to reinforce and guarantee the right of union affiliation for Costa Rican employees, as well as the free exercise by the leaders of representative functions. The possibility is thus given to unions to give their opinion concerning the formulation and application of government policies which could affect their interests, ensuring that they are given a major role during conciliation procedures in economic and social collective disputes. The framework for the action of unions and their representatives is thus enlarged.

On the other hand, the draft reform tends to establish a procedure at the management level which should be observed by every employer prior to a justified dismissal; the dismissal being null and void in the event that the aforementioned procedure has not been respected. In such a case, the worker would be able to request reinstatement with entitlement to unpaid wages. An accelerated judicial procedure is also being introduced which can be used by both union leaders and affiliated members in case of dismissal for reasons linked to their union activities, and which would reply to the comments of the Committee of Experts concerning the slowness of procedures in case of anti-union discrimination and the need to expand the legal protection of union representatives. The introduction of joint liability of unions, federations and confederations of workers or employers for damages and prejudice that they have caused constitutes another innovation which will be made by the reform.

The proposed reform thus tends to include all situations relating to freedom of association which occur in practice by establishing special protection and legal security for persons exercising the fundamental right of trade union membership.

4. Reforms to the chapter concerning hours of work in the Labour Code

Along with the draft relating to freedom of association the Executive has presented to the Congress of the Republic a proposal for reforming one of the institutions of labour law: the hours of work, with a view to introducing greater flexibility.

Article 58 of the Constitution sets the limit of the workday, while giving the legislator the possibility for exceptions to this limit in very specific cases. On the basis of this constitutional authorization, two new ways of organizing working time have been proposed: the workday of 12 hours and the workday annualized. The first can be used - by way of exception in order to respect the constitutional rule - in enterprises where there are market variations which affect their supply and their production, or also in enterprises which require continuous-flow process. Under these circumstances, overtime would be prohibited, and the constitutional limit of 48 hours per week would be respected. This means one or two extra days of rest for the worker, who would thus work four days and rest for three days. The second type of organization of working time is annualization - also provided for as an exception in cases authorized by law. The annualized accounting of working time must always respect the weekly limit of 48 hours. In this way, during peak periods of work the workday could extend to ten hours and during slack time it would not exceed six hours. In this way, a compensation schedule is set between hours worked during each of these periods. The principal guarantee of the annualized day is to give the worker stability: if an employer were to dismiss a worker before he/she had worked for one year, the employer would have to pay (as overtime) the hours worked beyond the ordinary workday.

The reform sets further guarantees in cases where the aforementioned modalities are used, such as: promotion of training; rest during the workday; supply of transportation by the employer where required; and special flexibility for pregnant women. The reform also governs the additional weekly day which existed in practice, but was not governed by legislative provisions and according to which when an employee works more than five days a week, the employer is required to remunerate at 150 per cent all work carried out beyond the fifth day. A generic exception is moreover included as regards the workday of adolescent minors, as set forth in the special provision of the Code of Childhood and Adolescence, Law No. 7739 of 6 February 1998.

In general, the proposed reform respects the general principles set forth in the Constitution and legislation, updating them so as to be compatible with current requirements.

5. Bipartite dialogue: Enterprises-unions

In 2001 organizations belonging to the Costa Rican Union of Chambers and Associations of Private Enterprises (UCCAEP) and the trade union movement, represented by the Trade Union Organization Movement of Costa Rican Workers (CMTC), the Rerum Novarum Confederation of Workers (CTRN), the Costa Rican Confederation of Democratic Workers (CCTD), the Unitary Confederation of Workers (CUT), the Confederation of Workers of Costa Rica (CTCR), the National Association of Teachers (ANDE), the Association of Secondary School Teachers (APSE) and the UNDECA joined forces to reactivate the process of social dialogue between the two partners drawing on an ILO project entitled: "Tripartism and social dialogue in Central America: Strengthening the process of consolidating democracy" prepared by the International Labour Organization. This process benefited from State technical support and aid.

The principal objective was to reach a series of concrete and concerted proposals, which should be favourable to productive investment and the creation of quality jobs. Three themes were retained, clearly distinct but having a close tie among them: economic policy, teaching policy and employment policy. The long-term strategy which must be defined for promoting investment and employment relies on the convergence of these three elements. Among the earliest results of this tripartite dialogue, it is appropriate to note, in particular, agreements in sight on the reform of instruction in Costa Rica, consultation for fiscal reform, the elaboration and implementation of a national employment policy and, finally, the promulgation of a Law creating an economic and social council, analogous to that which exists in Spain.

6. Tripartite dialogue: Government-trade unions-employers

With the help of the ILO and the enthusiastic support of the Government, Costa Rica has taken significant steps to strengthen social dialogue. Costa Rica has thus been able to set the basis of decisive agreements in the economic and social fields.

In the framework of the RELACENTRO project "Freedom of association, collective bargaining and labour relations in Central America and the Dominican Republic", a tripartite delegation from Costa Rica met in the Dominican Republic with other tripartite delegations from countries in the region. This conference took place from 22 - 24 May 2002. The Government delegation of Costa Rica was headed by the Minister of Labour and Social Security, Mr. Ovidio Pacheco Salazar. The importance of this meeting was that trade unions, organizations of workers, employers' associations and Ministers of Labour from countries in the region met for the first time to set a common work programme, taking into account the particularities of each country in social, political and economic terms.

In the context of each of these major themes, the questions of employment, of modernization of the labour administration and the promotion of social dialogue, were discussed with a view to consensual solutions. This tripartite regional meeting, held in Santa Domingo, had an important precedent at the national level with a meeting held in Costa Rica several months earlier which also had reached certain points of agreement.

The Government reaffirms its will, already demonstrated, to continue to make the Higher Council of Labour the tripartite body par excellence in which different proposals and other elements originating from the three partners are analysed.

7. Submission of Conventions Nos. 151 and 154

The Government announced the submission to the Legislative Assembly of draft laws ratifying the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

Recently the Minister of Labour and Social Security, Mr. Ovidio Pacheco Salazar, sent a letter to the President of the Congress, with copy to the heads of the political groups represented, drawing their attention to the high priority that this ratification represents in the national interest. This initiative of the Minister must be understood, naturally, as being in the spirit of the separation of powers set forth in the Constitution. Presently Congress is in a period of ordinary session until August and during that period, the initiative on the legislative level belongs exclusively to the deputies and not to the executive. This set of elements demonstrates, if it were necessary, the will of the Government to ensure the setting up of collective bargaining in the public sector, according to the principles of the ILO.

As the six points set forth above demonstrate, the Government of Costa Rica has deployed targeted and observable efforts to give effect to the recommendations made by the various ILO bodies, with the firm conviction of thus contributing to furthering social peace within its borders. It will pursue its efforts focusing on the protection of workers' rights. This commitment, along with ongoing efforts in favour of decent work and social well-being, is part of the desire for a competitive and dynamic economy which is the best guarantee of the pursuit of progress, already appearing from the transformations under way. Realizing the need to improve daily the mechanisms leading to the full exercise of the rights of workers, Costa Rica recognizes the full value of the advice and support that the different bodies of the ILO have given, always towards the same goal. In that spirit, Costa Rica desires a strengthening of the cooperation and the pursuit of an open dialogue on these questions about which it shares the same values and the same concerns.

In addition, before the Conference Committee, a Government representative (Minister of Labour and Social Security) expressed the firm desire of his Government to respect the fundamental and inalienable rights of workers, in the spirit of democracy and solidarity which characterized Costa Rica. The speaker recalled that his country had abolished its army more than 50 years ago in order to invest resources in education.

The speaker recalled that a situation of legal uncertainty had been created through the decisions of the Constitutional Chamber which resulted in an interpretation which hindered collective bargaining in the public sector. To overcome this situation, the Executive Authority had proposed to introduce the right to collective bargaining in the public sector through Executive Decree No. 29576-MTSS of 31 May 2001. Nonetheless, this Executive Decree was criticized for not having the status of law and of being subject to possible reforms through further Decrees by the Executive Authority. Consequently, a new legislative Bill - which was submitted before the Legislative Assembly in April 2002 as Bill No. 14675 - introduced a reform of collective bargaining.

In this context, the speaker recalled the technical assistance mission by the ILO which took place with the approval of the Government from 3 to 7 September 2001. The speaker noted with appreciation that the hard work and the quality of the report presented by the technical assistance mission had dealt with all pending questions. The conclusions of this mission pointed out that Executive Decree No. 29576-MTSS provided a wide scope for the right to collective bargaining which only excluded public servants at the highest level. The scope of the workers covered by this Executive Decree was in conformity with the requirements of Convention No. 98. Collective bargaining was allowed in public sector enterprises of the State. Moreover, the technical assistance mission had invited the Government to ratify the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

In relation to Conventions Nos. 151 and 154, the speaker recalled that for many years the parliamentary procedure for their ratification had been suspended. In his capacity as a parliamentarian and President of the Legislative Assembly, the speaker had had the opportunity to meet with the technical assistance mission and to be convinced of the importance for Costa Rica of ratifying these Conventions. The speaker thus noted with satisfaction that through Bills Nos. 14542 and 14543, Conventions Nos. 151 and 154 were before the Legislative Assembly, having received a favourable review regarding their ratification by the Committee on International Affairs. Nevertheless, the plenary session of the Legislative Assembly could still not approve them, in spite of the clear compromise between the majority and the opposition.

The speaker also recalled the recommendation of the technical assistance mission to establish a Permanent Roundtable for Dialogue and Coordination and a Permanent Training Forum on questions related to trade union freedoms, freedom of association and collective bargaining in order to promote, with the assistance of the ILO and in the framework of the Tripartism and Social Dialogue Project in Central America (PRODIAC), initiatives to strengthen the relations between the social partners. The speaker regretted the fact that this question could not be treated and resolved at the national level and that it had to be discussed in the Conference Committee. The speaker stressed that the government sector and the business sector had accepted the proposal of the technical assistance mission, and he urged the representatives of the workers' organizations also to join this initiative.

Concerning the legislative reform regarding collective bargaining, the speaker recalled that it was the intention of his Government to encourage the adoption by the Legislative Assembly of an amendment to article 112 of the General Law on Public Administration through which a subsection 5 would be introduced which would provide the right to negotiate collective agreements to all public employees who were not engaged in the administration of the State. A draft bill on the negotiation of collective agreements in the public sector was to establish machinery for conflict settlement and collective bargaining of employees who did not exercise public functions in the administration. Included in the definition of employees exercising public functions were public servants at the highest level, in conformity with the exceptions provided for in Article 6 of Convention No. 98. Furthermore, the amendment covered negotiation, the modalities of applying disciplinary sanctions, control of wage rates, the elaboration of job description manuals, procedures for awarding grants and occupational safety measures. The validity of collective agreements and certain exclusions were defined as well. The speaker also recalled that his Government planned a major reform of the Labour Code through Bill No. 14676, which extended many of the already established trade union rights.

Within the subregional framework, the speaker emphasized that in the last ministerial meeting, a tripartite subregional agenda was established which gave priority to solving all suspended questions related to collective bargaining and freedom of association. The speaker reiterated his desire to resolve any future problems through tripartite consultations.

In this context, the speaker recalled that the Political Constitution of Costa Rica already contained two provisions which referred to freedom of association: article 62 gave the force of law to collective agreements, and article 60 established the right to join a trade union. His Government also sought to promote a new constitutional amendment to incorporate in article 192 a phrase allowing all public employees, except public servants of the highest level in the public sector and public servants engaged in the administration of the State, to enjoy the right to negotiate collective agreements.

The speaker informed the Conference Committee that the Director-General of the ILO had transmitted to him a communication in which he offered the technical assistance of the ILO in order to address the pending questions. The speaker also wished to express to the Conference Committee the willingness of his Government to accept the technical assistance offered to overcome the current problems, to reinforce the legal clarity in the area of collective bargaining and to establish decent working conditions. His Government was willing to create all necessary means to promote social dialogue in an atmosphere of confidence and tripartite collaboration, and he hoped all interested sectors would fully participate in this dialogue.

The Worker members stated that they had taken note of the oral explanations presented by the Government representative and the written information provided. The information given by the Government representative did not contribute much new, only an enumeration of a simple set of draft reforms. The observation of the Committee of Experts raised ambivalent feelings because it showed that measures had been taken but that, at the same time, fundamental problems persisted and what was even worse, that new problems of application were arising. In effect, new aspects had been added to those already evoked in 1999 and 2000, which, as Case No. 2104 of the Committee on Freedom of Association demonstrated, concern the freedom to bargain collectively in the public services. The observation of the Committee of Experts, which was based on the Government's report, the conclusions of the Conference Committee, the report of the technical assistance mission of September 2001 and the communications made by the trade unions of Costa Rica, articulated four specific components.

With regard to recourse procedures in the event of anti trade union acts, the Worker members emphasized the point that the Government should be requested to keep the Committee informed, on the one hand, of the exact terms of the Act which needed to be adopted, and on the other, of its application in practice. Their cautiousness seemed to be justified by the fact that a Bill improving freedom of association, which had been negotiated satisfactorily by all parties, had eventually been amended without consultation and had established henceforth the legal responsibility of trade unions in the case of a strike, a stipulation which was all the more serious because in Costa Rica strikes were very often declared illegal.

Concerning the right to collective bargaining in the public sector, the Worker members shared the concerns expressed by the Committee of Experts with regard to a situation that constituted a serious violation of Convention No. 98. Moreover, from their point of view, the adoption in the future of a Bill approving the ratification of Conventions Nos. 151 and 154 would contribute to resolving the difficulties. They, therefore, asked that the Government be requested to furnish information in this respect.

Concerning the criteria of proportionality and rationality in collective bargaining in the public sector, the Worker members, recalling the interference demonstrated by the Constitutional Chamber with respect to the content of collective agreements, considered that such practices, as noted by the Committee of Experts, could "give rise to a loss of autonomy of the parties and the devaluation of collective bargaining itself". They asked that the Government be requested to refrain from such practices.

As regards the difficulties touching upon collective bargaining in the private sector, the Worker members regretted, like the Committee of Experts, the enormous imbalance in the private sector between collective agreements concluded by trade union organizations and the direct contracts concluded by non-unionized workers. They were keen to underline that Convention No. 98 advocated that the State should promote collective bargaining. They called upon the Government of Costa Rica to follow this direction rather than devoting itself to practices that render the principles of freedom of association devoid of meaning proclaimed by the fundamental instruments. They asked that the Government be requested to furnish concrete information on the measures taken in this regard. However, since tripartite consultations only made sense if freedom of association truly existed, no lasting solution could be envisaged in this area as long as there was no legal obligation to reinstate the workers who had been dismissed for reason of their engagement in trade union activities. The Worker members emphasized that the Government should supply tangible proof of the goodwill it claimed to have had for several years. From this viewpoint, they would be in favour of mentioning this case in a special paragraph.

The Employer members organized their comments in reference to four points raised in the Committee of Experts' report. Regarding the report's first point, which concerned the inadequacy of government measures dealing with anti trade union acts, they stated that the Committee of Experts had noted with interest several positive developments in this area and expressed support for these developments. They observed that judicial slowness had also been cited as one aspect of the Government's shortcomings with respect to this issue, and welcomed the fact that the judicial workload had been greatly reduced. Nevertheless, they emphasized the importance of continuing to bring about judicial reform, specifically with regard to the acceleration of judicial procedure and the clarification of legal principles.

With respect to the report's second point, which concerned the right to collective bargaining in the public sector, they noted several positive developments in this area - including the Government's acceptance of an ILO technical assistance mission and the drafting of a Bill supported by the parliamentary opposition and the social partners. They cited the Committee of Experts' report, which had noted actions taken by the Government respecting this issue, and expressed support for these developments.

Turning to the report's third point, which involved an individual case regarding the extent to which the government may interfere in collective bargaining, they observed that Convention No. 98 offered little guidance on this issue. Although noting that a minimum of judicial procedure must be adhered to, they felt that it was difficult to state to what extent Government interference would be deemed permissible, based on this individual case.

On the report's fourth point, concerning collective bargaining in the private sector, they stressed that, although the trade unions considered direct pacts between individual enterprises and individual, non-unionized workers unacceptable, these sorts of agreements were wholly appropriate in light of the fundamental, inalienable right to freedom of contract. Although the use of direct pacts to prevent collective bargaining would be problematic, they stated that this did not appear to be the case and also underscored the fact that Convention No. 98 did not prohibit direct pacts. Furthermore, they expressed their belief that Costa Rican workers possessed a certain preference for direct pacts, which was possibly due to the fact that in the past trade unions had refused to participate in tripartite collaborations.

In conclusion, they reaffirmed their support for the positive steps taken by the Government and requested that acknowledgement of this progress be reflected in the Committee's conclusions.

The Worker member of Costa Rica recognized that the present Government's administration had taken up its functions from 8 May 2002. Nonetheless, he recalled that the questions discussed had been pending for many years. Hence, it should be considered a problem of the State and the current administration should make a great effort to obtain a concrete solution.

Referring to the observation of the Committee of Experts on the application of Convention No. 98, the speaker shared its views concerning the slowness and inefficiency of the procedures for recourse against anti-union acts and took the opportunity to note the report of the technical assistance mission.

In the speaker's opinion, Bill No. 14676, which was brought before the Legislative Assembly, was introduced by the previous administration, contained provisions which affected the freedom of association enshrined in Conventions Nos. 87 and 98 and included provisions in contradiction with the Hours of Work (Industry) Convention, 1919 (No. 1). The legislative reforms sought to penalize the actions of workers' organizations by making them responsible for harm done to an employer who claimed to be affected by the actions of a union, federation or confederation. In cases of strike, a workers' organization could run the risk of bankruptcy in the face of a claim by an employer. Working hours have also been made more flexible and 12-hour days have been introduced with cumulative weeks and years, which involved the loss of the rights of workers enshrined in Convention No. 1. In this sense, the speaker recalled that the observations of the Confederation of Workers Rerum Novarum (CTRN) were communicated to the Committee of Experts which had observed the non-compliance of Convention No. 1.

The speaker also mentioned the recommendations of the Committee on Freedom of Association concerning Cases Nos. 1483, 1780, 1678-1695-1781, 1868, 1875, 1879, 1984, and 2024, which had been reproduced in the corresponding reports. Most of these called for the reinstatement of workers, and nonetheless none of them had been reinstated. The speaker also referred to the failure to reinstate the Secretary-General of the Union of Tropical Fruit Workers (SITRAFRUT) and workers in an automobile manufacturer. The Union of Banana and Plantation Workers witnessed acts of anti-union persecution and the blacklisting of workers, resulting in the loss of work for affiliates and other workers.

The speaker shared the considerations contained in the observation of the Committee of Experts in relation to the restrictions on the right to bargain collectively in the public sector. In his opinion, difficulties still existed in the Legislative Assembly for ratification of Conventions Nos. 151 and 154. The ratification of the said Conventions had been promised since 1993. The authorities persisted in undermining collective bargaining, as was the case in the Banco Crédito Agrícola and in the civil aviation sector. The Deputy Ombudsperson would bring charges again before the Constitutional Chamber to have declared unconstitutional certain clauses of the few collective agreements in force.

The speaker recalled that the Superior Labour Council was not operational. Its existence was sporadic, and hardly appeared to justify itself in the application of the Tripartite Consultation Convention, 1976 (No. 144). The speaker mentioned the activities of the project PRODIAC which also had demonstrated tripartism in Costa Rica. The ILO Office in San José had played an important role in facilitating social dialogue, both at the subregional level and in each country. The speaker welcomed the proposal made by the Government representative to search for solutions within Costa Rica.

In conclusion, the speaker observed that the draft constitutional amendment to grant the right to foreign workers to form part of the council of unions was not going anywhere, to the detriment of an important segment of the working population of Costa Rica.

The Worker member of Guatemala reiterated in his own words, the arguments and the position of the Worker Member of Costa Rica. He stated that the democratic system was in bad shape in countries in which the freedom of association and the right to strike were restricted. The comments of the Committee of Experts and the information supplied by the Costa Rican trade union movement regarding the violation of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), demonstrated that this was a case of serious violations of freedom of association. Even though the practice of substituting collective bargaining with direct agreements concluded with non-unionized workers, which was conducted by the permanent workers committees, was in conformity with the Labour Code, it was nonetheless in contravention to Convention No. 98. The speaker mentioned the concern expressed by the direct contacts mission which had noted the disproportion between the number of collective agreements registered with trade union organizations (12) and the direct agreements concluded with non-unionized workers (130). He deplored that this disproportion was aggravated by the interference of solidarity associations which were a kind of fifth column in the world of work, not only in Costa Rica, but also in all of Central America, thus creating confrontations by substituting trade unions. The speaker requested the Government to take into consideration observations made by the direct contacts mission concerning the prejudice caused by direct agreements in violation of Convention No. 98. He called upon the political will of the Government to take into account the systematic denunciations of freedom of association violations and the requests for the reinstatement of laidoff workers. If the labour legislation was put into conformity with ILO standards, Costa Rica could have the democratic system of which it already boasted.

The Government representative clarified that the mission which took place had been a technical one, not a direct contacts mission.

The Employer member of Costa Rica expressed his surprise regarding the statement made by the Worker member of Costa Rica and stated that the Government was ready to ameliorate the national policy on collective bargaining. He indicated that this operation would be difficult, given the structure of social cohesion which characterized his country. As Winston Churchill aptly put it, democracy was the worst system but nothing better existed. As a result, the Congress accorded numerous legal protections to benefit employment, where a voice was given to all social partners. He considered, however, that the principle of section 19.3 of the ILO Constitution had to be recalled, under which "In framing any Convention or Recommendation of general application the Conference shall have due regard to those countries in which climatic conditions, the imperfect development of industrial organization, or other special circumstances make the industrial conditions substantially different and shall suggest the modifications, if any, which it considers may be required to meet the case of such countries."

Regarding solidarity organizations, the speaker stated that the views expressed consisted of unfounded accusations, since cooperative organizations and trade unions counted on their intervention.

On the other hand, the speaker expressed concern at the slowness of collective bargaining in the private sector and at the judicial system which did not favour progress. In fact, there were several decisions that hindered productivity and foreign enterprises in the country. International organizations had indicated that the proliferation of litigation cases by mistreated workers, many of which were unfounded, hindered production. Currently, the State worked to overcome the situation with the assistance of the International Bank for Reconstruction and Development (IBRD).

In respect of direct agreements, the speaker pointed out that they were not an invention of the employers, since theye were provided for in the Labour Code due to a decision by the workers, desirous to resolve disputes through this process of conciliation. He pointed out that in this respect, workers even called a general assembly to nominate the Committee that would represent them during this conciliation process.

Some might even resort to this machinery not out of fear, but because of past unreasonable acts of trade union leaders in bargaining with private enterprises in the Southern Zone of his country where their excessive demands made those companies withdraw, leaving behind the population in unemployment and, of course, poverty.

In addition, the speaker referred to the statements of a well known trade union leader in the country, that three factors currently explained the limited scope of trade unionism, especially in the private sector. The first was the negative view that enterprises had of trade unions. The second was the bad image recognized by the leader himself, which was projected by trade unionists and which was partly their fault because of opportunism, and lack of vision, and also because of cases of corruption. The third aspect was the need to introduce judicial and procedural reforms to facilitate and render effective the supervision of rights and the resolution of conflicts between employers and workers.

Finally, the speaker stated that globalization was a unique opportunity for Cost Rica which could benefit all its citizens, strengthen competitiveness of the national production apparatus. He underlined that it was indispensable to render more flexible the standards related to hours of work, to layoffs and to employment with the objective of combating unemployment as many industrialized countries had done with success, with the support of the majority of workers.

The Worker member of Colombia stated that it appeared from the Committee of Experts' report and the discussions which took place in this Committee that, the right to bargain collectively was hampered by all kinds of obstacles. The workers could not content themselves with the legislative provisions on freedom of association and collective bargaining. They also needed the effective application of the relevant Conventions. Costa Rica was the focus of much criticism for the anti-trade union behaviour of authorities, of several employers, as well as for the sympathy shown by certain employers' circles for the "solidarism". The right to collective bargaining in the public sector could not remain the object of distortions and evasions. According to the information contained in the Committee of Experts' report, a draft law was under examination by the National Assembly providing for the ratification of the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154), which could become, in principle, a guarantee for workers.

On the other hand, the speaker expressed serious concern about the fact that numerous historical achievements of the labour movement, obtained through collective bargaining, were now subject of revision by the Constitutional Tribunal. This could only privilege an enriched minority as opposed to a great majority of the poor and socially excluded, thus negating all principles of justice and possibly entailing unpredictable consequences.

The Worker member of the United States noted that for more than a decade Costa Rica had been asked by the Experts and by this Committee to bring its legislation and practice into conformity with Convention No. 98. Every time, the Government of Costa Rica had said that it would do so and each time it went unfulfilled. Regarding the delay and ineffectiveness of available recourse for anti-union reprisals mentioned in the Report of the Committee of Experts, it was important to mention that the ILO technical assistance mission of September 2001 had found that the available procedures involving the labour inspectorate and the judiciary, generally totalled three years on average, a delay absolutely fatal to the success of any union organized campaign or other collective action. The Experts' reference to a decrease in acts of anti-union discrimination between 1996 and 1999 needed to be qualified in light of the findings of the technical assistance mission which had concluded that there had been a verifiable increase in acts of anti-union reprisals against Costa Rican workers over the last decade.

The Experts' reference to the bill pending in the Costa Rican Parliament intended to eliminate defects in available remedies for anti-union discrimination in conformity with Convention No. 98, also needed to be put in perspective. In addition to observing that the reform bill had not yet been passed, the technical assistance mission had mentioned in its report that the Minister of Labour had stated that the negotiation and processing of these issues in the Legislative Assembly could prove to be difficult and that an additional part, which had not been communicated to the mission, would be incorporated in the project. The pending additional part of the project, authored by the former administration, altered the eight-hour working day and imposed liability on both unions and individual union members for strikes and other collective action which allegedly harmed employers. This was a Trojan horse which effectively undermined and derailed a consensus to truly protect and make whole the victims of anti-union discrimination.

Regarding collective bargaining in the public sector, the Government of Costa Rica had promised to enact a new public employment law in 1992 but had failed to do so. Despite the May 2001 decrees, both the Experts and the technical assistance mission reminded this Committee that the Constitutional Chamber had ruled that all public employees with statutory employment status should be denied their guarantees under Convention No. 98. In the private sector, the Government of Costa Rica continued to accept the formation of Solidarista associations under the 1984 Solidarista Associations Act. Although explicitly banned from collective bargaining under Act No. 7360, Solidarista associations had taken over the functions properly belonging to trade unions thus leading to an enormous imbalance between collective agreements and employer-brokered arrangements. He joined the other members in calling for a special paragraph in this case.

The Government member of the Dominican Republic indicated that during the period from 22 to 24 May of this year a tripartite meeting on freedom of association, collective bargaining and labour relations in Central America and the Dominican Republic took place in his country. A subregional programme on labour matters, which took into account social, economic and political features of each country of the region, was elaborated at this meeting. The speaker who chaired that meeting supported the Santo Domingo declarations and praised the willingness and the positive action of the Government of Costa Rica in favour of social dialogue, freedom of association and collective bargaining. He had no doubt that the Minister of Labour of Costa Rica would contribute notably to this process.

The Government member of Panama, after reading the report of the technical assistance mission requested by Costa Rica which had visited the country from 3 to 7 September of last year considered that the mere fact that this country had requested assistance in order to adjust to ILO standards demonstrated its political good will. Moreover, since 1991 considerable progress had been made. Concerning the two bills mentioned in the report of the mission, the first, which aimed at identifying acts which constituted anti-trade union discrimination and interference, enjoyed the support of trade unions and the principal parties represented in the national Parliament. The second, aimed at the ratification of Conventions Nos. 151 and 154, had the support of the social partners, the Government, the President of the Parliamentary Assembly and the main opposition party, which was an encouraging sign. Finally, the speaker considered to be reasonable the mission's proposal to examine the various problems pending in Costa Rica in a tripartite body that the Government had accepted to create as a permanent one. This would promote social dialogue and the adoption of agreed solutions.

The Government representative stated that the inclusion of his country in a special paragraph would be unacceptable in the light of the information obtained during the technical assistance mission and the progress noted by the Committee of Experts in the area of collective bargaining and freedom of association. In fact, on this day the Constitutional Chamber of his country had proposed the amendment of the relevant legislation through a reform of article 192 of the Supreme Law that would allow the constitutional recognition of collective bargaining in the public sector. It was therefore obvious that this task would take time as it represented a democratic process in which all the social partners would participate.

The speaker noted that after the mission of 20 November 2001, a change in government had taken place in his country which had resulted in changes and improvements in the relevant legislation, with the help of the ILO, and in particular with a view to the ratification of Conventions Nos. 151 and 154.

The Employer members said that the report of the Committee of Experts constituted the basis for the discussion of the case in the Conference Committee as this Committee drew its conclusions from the points made by the Committee of Experts in its report. The Committee of Experts had raised four issues in its report, and had noted progress on two points. As far as the issue under point 3 of the report was concerned, the Employer members thought that it referred to an isolated case. The questions examined under point 4 still needed to be resolved. The Government had already adopted legislative measures and had moreover requested technical assistance from the ILO in order to overcome the remaining problems. However, the discussions had demonstrated that the prevailing climate among the social partners in Costa Rica was not characterized by social harmony. The trade unions had refused to participate in consultations on several occasions in the past. Therefore, this Committee should call for a strengthening of cooperation in this field between the social partners and the Government. The requested technical assistance was a valuable tool to this end.

The Worker members stated that a show of good will on behalf of the Government did not suffice, and neither did the improvisation of measures outside the obligations undertaken. What counted was the application of standards. In this instance, the observations made by the Committee of Experts, as well as those of the technical assistance mission, revealed serious disfunctionings that undermined the principles of collective bargaining set by the Convention and distorted the conditions in which it took place.

The Worker members hoped that the tripartite dialogue suggested by the mission and supported by the Committee of Experts would help find a solution to these disfunctions. Naturally, such a dialogue could only take place under conditions that guaranteed freedom of association. The fact was, that if until now certain organizations appeared hesitant and industrial relations were tense, it was precisely due to the consequences that such participation could have for trade unionists regarding their employment in a country where freedom of association as provided for by the standards, remained a dead letter.

Considering the seriousness of the situation and the persistence of the Government to limit itself to promises without any follow-up, the Worker members would have wished this case to be included in a special paragraph of the report of the Committee. This being impossible, they hoped nonetheless, that the examination of this question would continue.

The Committee took note of the written information submitted by the Government, of the statement made by the Government representative, and of the discussion which ensued. The Committee noted with interest the technical assistance mission which went to Costa Rica to examine the issues raised by the Committee of Experts in respect of the application of the Convention. The Committee observed that the Committee of Experts has commented on the application of Article 1 of the Convention concerning protection against acts of anti-union discrimination and of Article 4 concerning the promotion of collective bargaining, which have posed problems both in the public and the private sector. The Committee noted with interest that a draft law aimed at strengthening protection against acts of anti-union discrimination has been submitted to the National Assembly. It expressed the hope that this draft would be rapidly adopted. As concerns the promotion of collective bargaining, the Committee noted that serious problems remained in the way of the effective recognition and implementation of the rights of workers to bargain collectively their terms and conditions of employment. It noted the Government statement that draft amendments to the Constitution and to the legislation concerning the public sector have been presented to the National Assembly. The Committee recalled in this respect that the Convention applies to public servants who are not engaged in the administration of the State. It also underlined that Article 4 of the Convention is aimed at encouraging and promoting collective bargaining between workers' organizations, on the one hand, and employers or employers' organizations, on the other. Taking note of the Government's desire to cooperate with the International Labour Office, the Committee requested the Government to take the necessary measures, in full consultation with the social partners and with ILO assistance, to ensure that the right to collective bargaining is fully recognized not only in law, but also in practice, for all workers covered by the Convention. The Committee requested the Government to provide detailed information in its next report for examination by the Committee of Experts.

Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

The Government has supplied the following information:

The President of the Republic and Minister of Labour signed an Executive Order on 30 May 2001 concerning regulations for the negotiation of collective agreements in the public sector (copy received by the Office).

The Office has prepared the following summary of the Executive Order:

The regulations apply to public companies, State institutions of an industrial or commercial character and, with a few exceptions, to employees in the rest of the civil service. These regulations set the subject-matter for negotiation, including productivity wage incentives, within the limits set for government expenditure, and all bonuses, benefits or incentives within the scope of the administrative body. Trade unions negotiate the compulsory agreements with a commission which represents the employers. The draft of this collective agreement is submitted to a policy commission for negotiation. The members of this commission include the Minister of Labour and the Minister of Finance. This commission will issue instructions to the negotiators appointed by the relevant body. In order for any question which has financial implications to be valid, this must respect the legal requirements relating to the state budget.

In addition, before the Conference Committee, a Government representative, the Minister of Labour, referred to the written information communicated by the Government. He stated that the judgements to which the Workers Confederation Rerum Novarum referred to in the statements made to the Committee of Experts had not been correctly interpreted by this trade union since they had denied the right to collective bargaining of the workers in the public sector. Actually, in February 2001, the Constitutional Chamber of the Supreme Court of Justice had pronounced a judgement additional to previous judgements in which it left open the negotiation and signature of collective conventions in the public administration. Following, on 31 May 2001, the President and the Minister of Labour had signed a decree that made guidelines of the judicial authority more systematic by affirming the right to collective bargaining in the public sector. After having listed several provisions of the abovementioned decree, the Government representative indicated that the government committee responsible for drafting the decree had continued its work and would consider a bill on this issue, and to be applicable to a certain public, with the object of strengthening the hierarchy of the new standards pertaining to the rights of the workers of the country. The abovementioned Committee had called on several trade union organizations and had submitted the draft of the decree to be reviewed by the most representative trade union organizations giving them ten days in which to make their observations, already having taken into account several of these. The text had also taken into account the observations made by the ILO. He emphasized that the decree included legal provisions with immediate effect and that they were in conformity with Convention No. 98. On the other hand, he informed that in September, a technical assistance mission, requested by the Government, would visit Costa Rica in order to provide suggestions and observations regarding the collective right to bargaining in Costa Rica. The labour legislation in the public sector and in the private sector was satisfactory, but the country was open to suggestions. Costa Rica fully respected the rights of freedom of association and collective bargaining, and the Government maintained a permanent dialogue with the representative worker and employer organizations. He added that there existed a national tripartite body namely, the High Labour Council, where a variety of labour issues were discussed.

The Worker members thanked the Government representative for the information which he had just submitted to the Committee and for the written information which he provided to the ILO. They noted that the Worker members had already wished to discuss this case at the previous session of the Conference but this had not been possible because of the various limitations faced by the Committee when the list of individual cases was established. The reason for which the Worker members had wished to discuss this case last year was that serious violations of the right to collective bargaining had been noted by the Committee of Experts. These related in particular to the difficulties that workers had to confront in order to create or join a union; this problem appeared in particular in banana plantations and export processing zones.

They noted that the problem tackled by the Committee of Experts in this year's report concerned essentially the right to organize and bargain collectively in public services. This was an important problem which affected a large number of workers who found themselves in a situation where they did not have the possibility to be informed of or negotiate any changes to their laws and conditions of work. This was a violation of Convention No. 98 since collective bargaining was prohibited in the public sector. The Government promised for years to the Committee on the Application of Standards that a draft bill would be examined in Parliament in order to modify the situation. However, a judgement rendered in September last year by the Supreme Court concerning the rights of workers in the public sector and public institutions to negotiate collective agreements specified that neither national legislation nor the Constitution recognized the principle of collective bargaining in the civil service.

The Worker members wished to point out that the executive decree relative to the regulation of negotiation for the conclusion of collective agreements in the public sector, communicated at the present session by the Government representative, did not satisfy at all the demands of the unions of this country. The main reason for which the workers' organizations of Costa Rica could not confine themselves to this decree was that it did not offer any guarantee at the legal level. It was an executive decree which could be modified by the Government at any moment, that is to say, if the Government changed, this decree could simply be withdrawn - this could happen for instance in May 2002. Moreover, this decree did not bring about any genuine improvement to the situation to the extent that it was a return to the previous situation, established by the regulation of 1992, for which the Committee of Experts had already ruled in the past that it did not comply with Article 4 of Convention No. 98. In addition, it seemed that many other provisions of this regulation, which unfortunately was not available to the Committee (since the latter was able to acquaint itself only with the summary prepared by the ILO in document D.10), took up provisions of the actual legislation which had already been criticized by the supervisory organs of the ILO.

The Worker members considered that in fact the problem of the right to collective bargaining in Costa Rica was much more complex than one would think. It should be kept in mind that even if the case considered by the Committee today concerned the public sector, violations of Convention No. 98 took place in other sectors as well. The last regulatory initiative of the Government did not settle the question of collective bargaining in the public services. They thought that in order for this situation to change, the law and practice should be made to comply with the provisions of Convention No. 98 either through legislative means or through one more modification of the Constitution of this country.

This was why the Worker members wondered whether a direct contacts mission would be appropriate, or as an alternative, invited the Government to request technical assistance from the ILO in order to receive help in adopting the necessary provisions to bring national law and practice into conformity with the Convention. They requested that the mandate of this technical assistance mission be sufficiently large in order to allow it to examine additional contentious points regarding the implementation of Convention No. 98 in the other sectors.

The Employer members recalled that at earlier sessions the Committee had already dealt with issues concerning freedom of association and the right to organize and collective bargaining in Costa Rica. As in 1999, the Committee of Experts had reached the conclusion that in part a preliminary examination had been possible only. Today the core issue was collective bargaining in the public sector and the question how far it was permitted or prohibited. There had been several court decisions demonstrating that the position in law was still unclear and unstable. Then the Government had adopted a decree under which, in the Government's view, collective bargaining was again possible in the public sector. The Government was also prepared to take further steps, as had been confirmed today by the Minister. The Employer members, however, also understood from the Committee of Experts' report that the trade unions had been invited to bipartite negotiations but had refused to participate unless the Government was prepared to accept the ratification of further ILO Conventions. If that was correct, the unions had resorted to a kind of blackmail; there was no legal obligation to the ratification of Conventions and a decision on this belonged to Parliament as the representation of the whole nation. It was also unwise not to show up at talks; this was against Convention No. 144 which had been ratified by Costa Rica. Dialogue had collapsed for lack of reciprocity. As to the substantive problem, collective bargaining in the public sector needed to be dealt with further. The Government was prepared to receive technical assistance and advice and the Committee should join the Committee of Experts in encouraging this. At the appropriate time, the issue should again be raised and discussed, if necessary.

The Worker member of Costa Rica stated that the limits to exercising the right to collective bargaining was an issue that the different supervisory bodies had frequently encountered. Several reports regarding the violation of Convention No. 98 on the two aspects of protection included in this Convention, and which were not fulfilled in Costa Rica, had been sent to the ILO. On the one hand, freedom of association had not been properly guaranteed and the proceedings to resolve these violations had been slow and inefficient, and, on the other, collective bargaining had been in a state of deterioration. In the private sector there were only 12 collective conventions signed in comparison to the 207 conventions that had been concluded during the period 1977-81. The restrictions on the right to collective bargaining had considerably increased.

Despite the fact that in 1999 the ILO offered the Government an assistance mission, Costa Rica had accepted technical assistance from the Office two years later. In the meantime, the Constitutional Chamber of the Supreme Court of Justice further restricted the right to collective bargaining by means of a decision that established as unconstitutional the collective conventions of civil servants whose services were of a statutory nature. Additionally, by means of this judgement, each public administration could determine in which cases they were before public employees with the right to conclude collective conventions and in which cases they were before civil servants who are prohibited from concluding collective labour conventions. Moreover, the abovementioned judgement established that only employees working in state-run enterprises and who are involved in activities under ordinary law could negotiate collective conventions in conformity with the Labour Code. In this way, all personnel belonging to public entities or institutions whose activity was not regulated under ordinary law followed a regime of a statutory nature and therefore did not benefit from what was contained in the aforementioned judgements regarding the right to negotiate collective conventions.

He stated that by means of an additional judgement the abovementioned Constitutional Chamber had declared unconstitutional several articles of the collective convention concluded between the Trade Union of Workers in the Petroleum and Chemical Industry and the state-run enterprise Recope, thus eliminating the rights required by the workers. This new decision by the Constitutional Chamber had dangerously left room for unconstitutional activities to eliminate workers' rights included in the few collective conventions existing in the country. The supervisory bodies of the ILO had referred to the rule on collective bargaining in the public sector, No. 162 of 1992, regarding the incompatibility of the Committee on Official Approval with the principles of collective bargaining. However, the said Committee provided the trade union Sitrarena and the National Registry with a collective convention that had previously been negotiated by the parties. He emphasized that the trade union movement in Costa Rica had refused to participate in the elaboration of a new rule or decree on collective bargaining since, in actuality, an executive decree is an instrument inferior to a law and could easily be declared unconstitutional, and could also be modified at any moment by the executive and thus did not constitute an effective guarantee. The trade union organizations of Costa Rica had not participated in the elaboration on the bill for the new rule that had been delivered to the secretariat of the Conference, which was also critical of several Articles such as Article 3, paragraphs (d), (h) and (i), and Article 4 regarding the interference and intervention of budgetary authority in collective agreements. He also made reference to the failure to comply on behalf of the Government with the obligation required resulting from the negotiation that took place during 1993 to ratify the Labour Relations (Public Service) Convention, 1978 (No. 151) and the Collective Bargaining Convention, 1981 (No. 154). Finally, he asked the Committee to approve a direct contacts mission to verify the matters presented by the trade union organizations of Costa Rica, and to recommend the adoption of measures guaranteeing freedom of association and the right to collective bargaining as described in Convention No. 98.

The Worker member of the United States recalled that the Committee had reviewed the matter of Costa Rica's non-compliance with Conventions Nos. 87 and 98 over the past several years, noting that this review had led to a technical mission, which would presumably be received in Costa Rica later this year. He laid the responsibility for the continuing nature of the problem with all executive, judicial and legislative branches of the Costa Rican Government. He recalled that, when Dr. Miguel Rodriguez was elected as President of Costa Rica in 1998, he had requested that both the ILO and the AFL-CIO, the speaker's national trade union, give him time to improve the labour rights situation in the country. Accordingly, the Rerum Novarum Workers' Confederation of Costa Rica suspended the petitions it had brought before the United States Trade Representative pursuant to the United States General System of Trade Preferences. However, after more than three years of the Rodriguez administration, Costa Rica remained in fundamental non-compliance with Convention No. 98.

He noted that the report of the Committee of Experts focused on the issue of non-compliance in relation to public sector workers, a point which had been dealt with by the Worker member of Costa Rica. He added that collective bargaining rights for most Costa Rican public employees did not exist due to the Government's consistent interpretation of the 1979 General Law on Public Administration, with limited exceptions for local governments and universities and those collective bargaining agreements which had existed prior to 26 April 1979, and provided that the activities of the eligible public entities were governed by ordinary law.

In 1992, the Government had promised that it would remedy this violation of collective bargaining rights by enacting a new public employment law. This promise remained unfulfilled, notwithstanding the Costa Rican President's latest proposal and the executive decree whose announcement coincided with the Conference Committee's deliberations. He characterized the decree as a last-minute gesture which failed to resolve the problem of Costa Rica's non-compliance with Convention No. 98. He pointed out that, having failed to enact a law guaranteeing public sector bargaining rights in 1992, the Government had issued a provisional Regulation on Collective Bargaining for Public Servants, known as Directive 162. The ILO's Committee on Freedom of Association had examined this Directive and found it to be in violation of Convention No. 98, as all collective agreements were reviewed by a Certification Commission (Comisión de Homologación), which included government ministers, and which had full authority to reject any negotiated agreement. Moreover, Directive 162 excluded any negotiation of salaries or other issues which might conflict with the government budget. It was clear that the latest executive decree issued by the Government was similar to Directive 162 and suffered from similar defects. While there was no Certification Commission as such, there was a Policy Commission (Comisión de Políticas), which included the same government ministers, who could give government negotiators instructions to reject any proposed agreements which allegedly conflicted with the requirements of the Government's budget and its economic policy. Moreover, the public employment law had still not been adopted.

He considered that Convention No. 98 had been undermined in the Costa Rican private sector, as in his view the Government had permitted a climate of impunity to flourish by tolerating the growth of "solidarista" associations and by failing to prevent and detour anti-union firings, resulting in an alarming decline of trade union density and collective agreements. He pointed out that only 5.24 per cent of Costa Rican private sector workers had managed to maintain union representation and protection. That figure fell to 2.29 per cent if one excluded small agricultural producers. While the 1984 Ley de Asociaciones Solidaristas (Law on Solidarista Associations) formally prohibited such associations from negotiating collective agreements, "solidarismo" had taken advantage of a loophole based on the legal recognition of direct arrangements (arreglos directos) which could be made between employers and groups of workers. Consequently, 479 direct arrangements had been registered in the private sector between 1994 and 1999, while only 31 collective bargaining agreements between unions and employers had been registered during the same period. Moreover, the "fuero sindical", the Costa Rican legal doctrine which was supposed to protect union activists from retaliatory dismissal, applied only to a small number of union leaders and only for a limited period of time. He pointed out that this doctrine had not been recognized as a constitutional cause of action. This contributed to often fatal delays and did not require the employer to establish a case of just cause before carrying out the dismissal. He also noted that the Costa Rican judicial system had no effective mechanism for compelling employers to reinstate workers.

For all the reasons mentioned, he joined the Worker members in recommending that the technical assistance mission to Costa Rica be given a broad mandate. Moreover, in solidarity and in consultation with members of the Costa Rican labour movement, he cautioned that the AFL-CIO was prepared to lodge a petition for a labour rights review for Costa Rica pursuant to the United States General System of Preferences and the Caribbean Basin Economic Recovery Act. He nevertheless expressed the sincere hope that the case of Costa Rica would not need to come before the Committee in future ILO conferences.

The Worker member of Brazil expressed concern with regard to certain aspects of the application of Convention No. 98 in Costa Rica, including its observance by the Government as well as by the constitutional court. Prior to presenting his comments on the Convention's application in Costa Rica, however, he made a brief critical comment regarding the report of the Committee of Experts, stating that, in the face of the technical complexity of the situation, he found the report of the Committee of Experts this year to be lacking in detail. The Committee was aware of the difficulties faced by those who attempted to form free trade unions in Costa Rica and who attempted to evade the anti-union logic of solidarismo. Therefore, he requested that the Committee of Experts provide the Committee in its next report with more specific details regarding the legal discussions taking place in Costa Rica regarding the methods of application of the Convention at issue. As the Committee of Experts had repeatedly observed, once a country ratified Convention No. 98, even if it had not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151), which specifically addressed the public administration, it was obligated to adopt mechanisms guaranteeing collective bargaining and collective agreements. The only exemptions permitted were for designated state functions. Although a ratifying State might face legal and constitutional difficulties in achieving this aspect of implementation of the Convention, nevertheless, the position of the Conference Committee, the Committee of Experts and the Governing Body was clear. The ratifying State was required to make the modifications necessary to permit the full application of the Convention so that the mechanisms for collective bargaining and collective agreement could operate.

A number of the problems addressed by the Costa Rican Supreme Court in this area stemmed from Costa Rica's administrative law system, a system which was typical of countries that had adopted the civil law legal model. In those countries, the public administration sometimes classified its employees under the administrative law system. This system, if it did not prevent, certainly hindered the adoption mechanisms for collective bargaining and collective agreement in the public service. Nevertheless he considered that it was possible to overcome these difficulties which currently compromised the full application of Convention No. 98 in Costa Rica. For this reason, he recommended that the Office provide technical assistance to help the Government find the best means to fully implement the Convention. On the other hand, he expressed concern that the Constitutional Chamber of the Supreme Court had held that collective bargaining and collective agreements were constitutional for those employees that were not governed by the statutory regime. This decision in itself already represented a limitation on the full application of the Convention if it included workers that did not exercise state functions. Another worrisome aspect of the court's decision lay in the fact that it delegated to the different levels of the public administration the power to decide when employees would or would not be protected by collective agreements. He considered that this decision gave great discretionary power to the public administration. Being familiar with the tradition of solidarismo and its harmful effects on free trade unions, he feared that the different levels of the public administration in Costa Rica were not completely committed to constructing an atmosphere of full trade union and collective bargaining freedom. This was demonstrated by the dramatic reduction in the number of collective bargaining agreements in Costa Rica.

In conclusion, he noted that the Government representative's statement had not clarified the situation. If a constitutional decision had in fact interpreted the Costa Rican Constitution in the manner described, namely, restricting the application of Convention No. 98, which Costa Rica undertook to observe, the Committee would have no alternative but to recommend that the Government submit a constitutional amendment to Parliament which would guarantee the full application of the Convention.

The Worker member of Argentina pointed out that collective bargaining, and the exercise of freedom of association for state employees was a fundamental right that was historically hampered by governments which happened to be their employers as well. In the fight for the recognition of such rights, the regulatory activity of the ILO proved essential, especially the adoption of Conventions Nos. 98, 151 and 154. She indicated that, for that purpose, it was a matter of concern that a government in the American continent had violated Article 4 of Convention No. 98 by denying the right of public sector employees to collective bargaining. She pointed out that even if the government had informed the ILO Office of the decree which authorized public sector employees to negotiate collective labour agreements, it was important to highlight that, in the manner it was regulated, collective bargaining as specified in the decree, besides being unconstitutional, was limited. The reason was that the full application of the collective convention depended on a legislative approval subject to a budgetary provision. She indicated that, in view of the current situation in a number of countries where budgetary adjustments had hindered an effective collective bargaining for state employees, she was afraid that obstacles imposed on collective bargaining would render it out of reach. She called for the formulation of legislation in line with the provisions of Convention No. 98 in which the principle of good faith within the framework of social dialogue, and with the active participation of trade union organizations, would be highlighted. Otherwise, Costa Rica would continue to violate the provisions of Convention No. 98. She concluded by endorsing the statement of the spokesperson of the Worker members.

The Government member of Trinidad and Tobago noted with interest the initiatives undertaken to date by the Costa Rican Government in order to give tangible effect to the provisions of Convention No. 98, with specific reference to the right of public employees to bargain collectively. He expressed the hope that, with the continued assistance of the ILO's multidisciplinary advisory team, requested by the Government, Costa Rica would finally be able to bring its legislation and practice into line with the requirements of the Convention in the shortest possible time.

The Government representative indicated that several members of the Committee had not adequately understood the information provided in his initial statement. He firmly denied the fact that there were no guarantees at the judicial level to conclude collective conventions in the public sector. He indicated that last February, the Constitutional Chamber of the Supreme Court of Justice had amended a previous restrictive interpretation regarding the General Law of Public Administration of 1979, with the result that, presently, the collective conventions and the collective bargaining conventions in general were constitutional in any of the country's institutions. However, there were limits when considering certain higher positions but this was not a problem with regard to Convention No. 98. The recent rule on collective bargaining was not in any way a copy of the 1992 directive. In effect, the decree abrogates this directive which included a bargaining procedure at lower levels (there had not been any signatures to collective labour conventions, it had only taken into account a very limited number of issues and the result of the bargaining had depended on the official approval of a committee). That directive had been abrogated and no longer existed. What did exist, was an additional judgement made by the abovementioned Constitutional Chamber in the speaker's previous statement. Due to this judgement, there existed a decree with extensive guarantees for collective bargaining in the public sector. This negotiation had included certain characteristics since what had been negotiated needed to be in conformity with the principle of legal budgeting which is a frequent principle in several countries and which the ILO bodies had interpreted in this manner. He reiterated that the decree had been submitted to the ILO and to the representative organizations. He categorically denied that the decree had been quickly drafted prior to the Conference of the ILO. The process that had culminated in this decree had begun in February 2001 when the Constitutional Court had given its judgement on the matter of collective bargaining in the public sector. Afterwards, a committee of legal experts of the highest level had developed a draft which they submitted to the worker and employer organizations and to the ILO. The State had needed to act expediently when dealing with important labour matters and in this case it had found, by means of the decree in question, an immediate solution in conformity with the national law and the ILO standards. He reiterated that the decree on collective bargaining in the public sector needed to be strengthened by a bill and that presently collective conventions could be signed. Regarding the doubts expressed by several Members whether the legislation included sufficient guarantees, it was for the Committee of Experts to provide an answer to this question. With regard to other issues that had been stated by several members of the Committee, he indicated that he had available abundant documentation to provide an adequate response but that since these issues dealt with matters not pertaining to the discussion and were unrelated to the observations made by the Committee of Experts, he had chosen to limit himself to the specific issues of the discussion.

The Worker members stated that they could only reiterate their conviction that the application of the right to collective bargaining in Costa Rica posed serious problems in several sectors. In relation to the public sector, they once again emphasized that the executive decree mentioned by the Government member and communicated to the ILO in the present Committee session did not respond to the claims made by the Costa Rican workers. Consequently, they demanded that a direct contacts mission or a technical assistance mission travel there to review all the difficulties in the application of Convention No. 98. They also invited the governments to submit information to the Committee of Experts on the legal and practical measures taken in order to conform with Convention No. 98. Finally, they informed the Committee that the Worker members would review the case again if the Committee of Experts had found that real progress had not been made in the following reports.

The Employer members noted that the discussion had shown the need for further clarification; this was also true for the concluding remarks of the Minister representing the Government; otherwise, it would not have been logical to accept the offer of technical assistance. The Minister was prepared to reinforce the position in law and that should indeed be done. They advised all sides to heed in future Convention No. 144 which was the basis for dialogue and progress. They asked the Government to act accordingly and would see in future what changes had occurred.

The Committee noted the verbal and written information communicated by the Government, and the discussions that ensued. The Committee stressed that the Committee of Experts and the Committee on Freedom of Association had noted for a number of years the discrepancies that existed between national legislation and practice on the one hand, and the Convention on the other hand, in respect of the right to collective bargaining of public servants who do not work in the state administration. The Committee noted the declarations made by the Government relating to a recent executive decree by the President of the Republic. The decree regulated the right to collective bargaining in the public sector including state institutions. Likewise, the Committee observed that the Government had solicited the technical assistance of the ILO, to be held in September 2001. The Committee requested that the technical assistance mission examine, in a comprehensive and exhaustive manner, the situation relating to the various aspects of collective bargaining. The Committee expressed its firm hope that, in the near future, it would be able to record some progress made in legislation, and in practice, with respect to the application of the Convention. The Committee requested the Government to forward thereto a detailed report which could be examined at the forthcoming session of the Committee of Experts in such a way as to carry out an evaluation of the situation, if deemed necessary.

Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

A Government representative stated that protection of the right to organize was accorded great importance by the Government and was a key objective of the National Plan for Concertation, put forward by the President of the Republic. Thus, in accordance with national tradition, the Government had given genuine substance to social dialogue, and had effectively re-established the Higher Council for Labour, a tripartite body, with a mandate to promote dialogue on employment and social matters. Among the results generated by the Council, mention should be made of the agreements regarding salary policy, compensation funds for dismissed workers and freedom of association. In this connection, the Executive had submitted a draft Act to the Legislative Assembly, which reformed various articles of the Labour Code, which included the agreement on freedom of association, adopted by the Higher Council for Labour. The Permanent Committee for Legal Affairs of the Legislative Plenary approved this draft, and the Government hoped soon to be able to report its adoption and incorporation into national legislation. The draft effectively provided for the rapid expedition of proceedings, including the imposition of legal penalties, in cases of anti-union discrimination.

In respect of the delay in processing cases of anti-union discrimination, and the failure to carry out the courts' rulings to enforce reinstatement of trade union leaders, the Government representative reiterated all his observations contained in the reply to the documentation submitted by the Inter-Confederal Committee of Costa Rica (CICC); he recalled that the Committee on Freedom of Association, in its report No. 311, referring to the case of FERTICA S.A., No. 1966, had expressed concern in this connection. The Government, in agreement with the Committee, informed the ILO that the Minister for Labour and Social Security had submitted a copy of the Committee's report to the Supreme Court of Justice, thus recalling to the higher judicial authorities the principle of full and speedy justice upheld by the ILO in matters relating to freedom of association. These principles would now be included in national legislation.

With the same concern, the Ministry for Labour and Social Security had, on 15 May 1998, issued Directive DNT-063-98, of which a copy was submitted to the ILO. This Directive reiterated the obligation of the competent ministerial authorities to expedite, within a period of two months without prejudice to due process and legitimate defence, proceedings in cases of alleged anti-union discrimination.

In more concrete terms, and as an indication of the resolution of the government authorities to answer to the concerns of the supervisory bodies of the ILO regarding alleged delay in administrative procedures in respect of unfair employment practices, the Government representative was pleased to provide information on the legislative progress to which the draft reform of various articles of the Labour Code bore witness. This draft had been submitted by the Executive to the Legislature on 13 November 1998, and had been unanimously approved on 16 March 1999 by the Standing Committee on Legal Matters of the Legislative Plenary. The draft, besides aiming to expedite administrative procedures and formalities in respect of the Labour Code, took account of the observations of the Committee in previous years and dealt, inter alia, with delays in investigative procedures in cases of anti-union discrimination and failure to respect judgements regarding the reinstatement of unfairly dismissed workers' representatives. The draft provides for: (1) the establishment of rapid administrative and judicial procedures with a view to ruling on the legality of disputed dismissals; brief proceedings, to ensure due process and legitimate defence; and (2) the assurance that the legislation would promote and develop the harmony and order of the labour sector and its representatives. The Government hoped in the near future to be able to report on the adoption of the draft in question and thus provide for speedy procedures in cases of anti-union discrimination, thereby ensuring enforcement of judgements, without prejudice to due process and legitimate defence.

Regarding alleged acts of interference of the employer in the establishment of workers' organizations, the Government representative stated with regard to the alleged acts of interference in the case of FERTICA S.A., it should be noted that he had been in full agreement with the ILO in strongly regretting all anti-union practices detrimental to the rights of the workers at FERTICA S.A. Furthermore, the Ministry of Labour and Social Security had confirmed the validity of the collective agreement concluded on 15 September 1994 between FERTICA S.A. and ATFe, and had extended the duration of the agreement until 15 September 2000. This constituted clear recognition by the board of managers of the organization, and was recorded as such in the Registry of the Companies Department of the Ministry of Labour and Social Security. As a further measure, the Ministry of Labour and Social Security had issued an administrative directive to instruct administrative authorities always to "take full care to ensure the protection of freedom of association of workers".

With regard to the Committee's comments on the possible inequality of treatment between trade union and solidarist associations regarding the management of compensation funds for dismissed workers, the Government representative was pleased to state that this situation had today been remedied by virtue of an agreed draft Bill concerning the transformation of compensation of dismissed workers. Representatives of employers, solidarists, cooperatives, trade unions and the Government were currently working on the last details of a draft Bill, a copy of which had been submitted to the Committee; this Bill altered the regime governing compensation for dismissed workers, and would soon be submitted to the Legislature. It provided for workers' freedom to choose the financial organization to administer compensation funds. Under its terms trade unions and solidarist associations were on an equal footing.

With respect to the non-recognition of the right to collective bargaining of public servants, the Constitutional Chamber of the Supreme Court of Justice had declared various provisions concerning the solving of socio-economic conflicts to be unconstitutional. These provisions were contained in the Labour Code for administrations governed by public employment law: the law had now rectified this situation. However, as an indication that collective bargaining in the public sector had recently undergone significant development, the Government had produced the draft Public Employment Act, published in the Official Gazette of 29 October 1998. This draft was presently coming before the Committee on Economic Affairs of the Legislative Assembly. It reaffirmed the right to collective bargaining and the right to strike in the public sector, in the terms set out in the ILO Conventions, as in the Political Constitution and the Labour Code. This draft Bill was the result of awareness-increasing action by the public administration on the need for a new regime of labour relations between the State and public employees. The original text, referred to by the Committee of Experts, was being revised to ensure that the public sector operated first and foremost in the public interest and that, in turn, public servants' employment conditions should be such as to enable them to carry out their duties successfully, yielding greater employment flexibility and improving possibilities for employees' negotiation.

In respect of the alleged lack of adequate bodies to ensure the respect of the right to freedom of association, Costa Rica possessed wide legal protection regarding trade unions, set forth in the Political Constitution, international Conventions, the Labour Code, and more recently in the Case Law of the Constitutional Chamber. Costa Rica had a very high level of unionization. For example, in the agricultural sector there were more unions than in such countries as France, Spain and the United States. In some cases unions were duplicated. Freedom of association was a reality in Costa Rica. Finally, the Committee of Experts, in its report, had recognized the efforts made by Costa Rica and expressed its satisfaction at the measures adopted by the Government to introduce change into national practice and legislation, thus complying with the instruments adopted.

It was clear, therefore, that the Government was steadily advancing on the basis of social law and in compliance with the ILO Conventions which it had adopted.

The Employer members thanked the Government for the information provided. However, they noted that it would have been preferable if the information had been supplied in a timely manner to the Committee of Experts so that it could have been evaluated and reflected in their report. They recalled that Costa Rica had been discussed in 1993 and 1997 in the context of Convention No. 87. Now the Committee was looking at related issues from a different angle in the context of Convention No. 98. The Conference Cosmmittee's discussion was limited to the information provided in the Committee of Experts' report and, consequently, the facts before this Committee were limited. Regarding the case mentioned in the report on FERTICA S.A., they noted the Government representative's statements deploring the acts of interference by the enterprise and indicating that the matter had been referred to the judicial authorities. They were not sure of the full implications of this statement, since the Committee of Experts' report reflected only that the Labour Inspectorate had concluded that FERTICA S.A. had engaged in unfair practices. The action was now before the courts, but it was not clear when it had come before the courts or how the matter was being handled. Nevertheless, they expressed the hope that the matter was being handled expeditiously by the judiciary. They pointed out that the Government representative had noted the important issue of delays in processing cases of anti-union discrimination and admitted problems at the administrative and judicial level with respect to the handling of cases. They noted that the Committee of Experts recognized that plaintiffs are responsible for some of the delays. Nonetheless, they noted that the Government had acknowledged the need to expedite both administrative and judicial proceedings.

With respect to the non-recognition of the right to collective bargaining of public servants not engaged in the administration of the State, they stated that it was evident that no action had been taken over a number of years. They noted the Government representative's reference to a draft Bill which would provide a prompt resolution of this issue. However, given the lack of information, there was no way to assess the situation. They expressed the hope that there might be a way to speed adoption of this Bill. The Committee of Experts had also looked at the question of the non-application of collective bargaining agreements concluded by the parties. They noted that the Government had not provided information on this matter and referred to the decision of the Committee on Freedom of Association in this regard. Additionally, the Committee of Experts had noted communications from the CICC indicating that collective bargaining in the private sector was non-existent as a result of widespread trade union persecution. Again, they noted that there was no concrete information permitting any conclusions on this point. Finally, they urged the Government to provide concrete information to the Committee of Experts in a timely manner so that the situation in Costa Rica could be evaluated. They expressed the firm hope that the Government would enact the necessary legislation to bring it into full conformity with the Convention.

The Worker members thanked the Government representative for the information provided and stated that they shared the views expressed by the Employer members. They recalled that in 1993 and in 1997 this Committee had examined in detail the situation concerning collective bargaining in Costa Rica on the occasion of the examination of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In 1997 this Committee had concluded that, in spite of the direct contacts missions which were carried out in 1991 and in 1993, serious discrepancies remained between, on the one hand, the law and national practice and, on the other hand, international standards regarding collective bargaining. A structural problem existed regarding collective bargaining in Costa Rica largely due to a lack of efficiency of the law and the procedures aiming at trade union protection. However, since 1997 the Committee of Experts had received observations from the Inter-Confederal Committee of Costa Rica (CICC) on the application of the Convention. The Committee of Experts had to conclude that the Government had not replied to a large part of the observations by the CICC, in particular as regards the considerable number of denunciations of acts of anti-union discrimination and the non-application of collective agreements entered into between enterprises and trade unions. During this same period, the Committee on Freedom of Association had formulated conclusions concerning the enterprise FERTICA S.A. in Cases Nos. 1879 and 1966. In the latter case the Committee on Freedom of Association had concluded that, in practice, its recommendations requiring reinstatement of trade union leaders at FERTICA S.A. as well as reinstatement of the 265 trade union members had not yet been implemented. The directors of this enterprise had instead favoured the creation of a trade union committee parallel to the existing trade union and it had dismissed 265 workers, who were all trade union leaders. The Committee on Freedom of Association had further noted the inefficiency of the administrative system and the judiciary which existed in the past. The case of FERTICA S.A. represented, however, an illustration of this structural problem.

The Worker members indicated that the trade union maintained that in spite of the new legislation of 1993 solidarist organizations still existed. The risk for dismissals remained very significant for trade unionists, in particular in the banana plantations and in the nine export processing zones. Cases where trade union leaders and their families were subjected to death threats were even more serious.

The Worker members noted, moreover, the persisting problems relating to collective bargaining for public servants which had already been discussed by this Committee in 1993 and 1997. With reference to the recognition by the Government that there were problems in this area, the Worker members noted that the Government had also made a reference to a draft law on public service which would provide for the right to collective bargaining and the right to strike. In this respect the speaker noted that public servants who were not governmental employees did not have the right to collective bargaining, contrary to Article 4 of the Convention.

As regards the private sector, the report by the Committee of Experts seemed to indicate that the Government recognized the inefficiency of the laws regulating the procedure for the settlement of labour disputes, that no significant measures had been taken as regards trade union discrimination and that, at the national level, a considerable number of complaints about such discriminatory acts had been submitted. The Worker members, therefore, insisted that the Government significantly and without delay amend its legislation and practice with recourse, if necessary, to technical assistance from the ILO. The administrative and legal procedures should be examined promptly and the judgements should be implemented also in the export processing zones and in the banana plantations. Furthermore, the authorities should set up an effective system for collective bargaining governed by principles based on good faith negotiations, effective recognition of autonomous trade unions and respect for agreements entered into. In this respect the Government could also, if necessary, have recourse to technical assistance by the ILO. However, in view of the importance and the complexity of the questions raised and of the time elapsed, the Worker members queried whether a direct contacts mission would not be more appropriate. The Government should inform the Committee of Experts of the follow-up on the complaints against anti-union discrimination and the non-respect for collective agreements and should ensure that the recommendations by the Committee on Freedom of Association in the case of FERTICA S.A. be implemented. Finally, as regards the public sector, the Worker members requested the Government, without delay, to amend its legislation on this matter.

The Worker member of Costa Rica expressed surprise at the oral information supplied by the Government. The speaker criticized the delays in procedures in cases of anti-union discrimination where rulings had been made to reinstate union leaders. In this connection he referred to the dismissed workers from FERTICA S.A., none of whom had been reinstated, thus ignoring the recommendations of the Committee on Freedom of Association, approved by the Governing Body. He added that the enterprise refused to respect the recommendations or to come before the Ministry of Labour. The speaker affirmed that it was not certain, as the Government had maintained, that the General Labour Inspectorate had intervened in this affair, although the constitutional law governing the Ministry of Labour and the Labour Code empowered it to do so. The speaker requested the Government representative to indicate what progress had been made in the FERTICA S.A. case. He stressed that several workers from the enterprise remained dismissed, were on blacklists and consequently could obtain no work in other enterprises. The speaker referred to the resolution of the Constitutional Chamber whereby the Government had fixed a two-month time limit on the Labour Inspectorate to give judgement. He criticized the Government's affirmation and stated that the administrative procedure for the denunciation submitted by the RERUM NOVARUM Confederation and the Union of the Township of Aguirre regarding the anti-union persecution to which the Secretary-General of the organization and two members of its executive committee had been subjected, had taken more than four months. He also pointed out that the complaint submitted to the Labour Inspectorate over six months ago regarding the dismissed Secretary-General of the Bananero del Sur Union was still pending. He stated that the labour law judges were unfamiliar with ILO Conventions, although the ILO had organized an information campaign in Costa Rica to increase the judges' awareness of the standard-setting activity of the Office and the application of the Conventions. With respect to interference in the constitution of trade union organizations, it was clear that some employers repeatedly behaved in this way. The creation of a "ghost" union in FERTICA S.A. was simply one of the clearest examples. The enterprise had dismissed the executive committee of the ATFe Union, had constituted a parallel committee, and to date had retained union dues. This fact was denied by the Labour Inspectorate, however, contrary to the Committee of Experts' requests, the administrative authorities did not pursue the complaint on the grounds that there was insufficient proof. With respect to the inequality of treatment between trade unions and solidarist associations regarding the management of compensation funds for dismissed workers, the promised legislation had not been enacted, allowing the solidarist associations management of the millionaire funds of the workers and obstructing collective bargaining. With regard to the lack of bodies able to guarantee the enforcement of the right to organize, he indicated that this task was the responsibility of the Labour Inspectorate. However, this organizational body was completely neglected by the Ministry of Labour in that it lacked the number of inspectors required by the ILO Convention on this subject. Moreover, the Inspectorate has no vehicles for the transportation of inspectors, who also complain of the lack of funds allocated for their travel expenses by the budget. He indicated that the right to collectively bargain was severely restricted in Costa Rica. The anti-union position taken by some employers in refusing to allow the formation of trade unions in its enterprises seriously affected this right. Moreover, the Government had refused to recognize the public sector workers' right to collective bargaining. For example, it had instructed municipalities having negotiated collective agreements on the mechanisms used to eliminate them. Contrary to promises reiterated over the past 15 years, while the Government had sent draft laws to the Legislative Assembly regarding the right to collective negotiation and the right to strike in the public sector, these draft laws had been withdrawn in recent days. He indicated that the Government had committed itself before the Committee of Experts to resolve the issue of the right to collective negotiation by means of the draft law on public sector employment. Lastly, he noted that new complaints alleging the violation of Conventions Nos. 87 and 98 had been presented to the Committee on Freedom of Association, complaints which were now added to the more than 45 complaints examined by this Committee to date. In respect of the complaints recently presented, he referred to the case of the General Secretary of the Union of Southern Workers, Mr. Adrián Herrera, who was fired from the COBASUR company following his presentation of a list of petitions. Subsequently, he was attacked by a group of masked men who beat him brutally. Firing at him at close range, they threatened to kill him if he did not leave the union. He pointed out that, of the 712 collective agreements that existed in the country in the different areas of production and services, only 76 remained in force and that, in contrast, the direct agreements favoured by solidarist associations had grown to a total of 330. Finally, he affirmed the need for the Committee to approve a direct contacts mission to verify the events described on location and to provide the corresponding technical assistance.

The Worker member of the United States noted that Costa Rica was no stranger to the Conference Committee. Recalling that the case of Costa Rica had come before this Committee two years ago, he noted that the last two years appeared to confirm that little had changed. He indicated that the Costa Rican Government had been in contact with the international labour movement over the last two years and had made assurances that the fundamental problems concerning core labour rights in Costa Rica would be corrected. The Government had advised the AFL-CIO that it would be harmful and counter-productive for Costa Rica to be subjected to the labour rights complaint and review process of the General System of Preference in United States trade law. The cautionary statements of the Government had been respected in good faith, pending what was expected to be the positive outcome of the process of labour law and enforcement reform in Costa Rica. He regretted that today it had become evident that, two years later, the fundamental flaws in Costa Rican law and practice had not been corrected. He raised three points regarding Costa Rica's application of the Convention. First, he noted the problem of employer acts of anti-union discrimination, pointing out the apparent inability of the Government to prevent and remedy these acts. He reminded the Employer member of the United States that the statement he made regarding plaintiffs contributing to delays in proceedings involving acts of anti-union discrimination was in fact taken from the Government's report, not from that of the Committee of Experts. The Committee of Experts' report reflected the Government's statements that the responsibility for delays in processing cases involving workers victimized by employer anti-union discrimination did not necessarily lie with the administrative authorities, but might have more to do with the lack of rapid implementation and enforcement in the judicial system. Nevertheless, he recalled the Worker member of Costa Rica's statements that it often took at least two to three years for the authorities to process cases of anti-union discrimination, including anti-union discharges, during which time pro-union employees were left jobless and the union organization movement was completely destroyed. Regarding Costa Rica's administrative capacity to investigate acts of anti-union discrimination, he cited an ICFTU report indicating that in 1996 the Costa Rican Labour Ministry had only one labour inspector for every 30,000 workers in the export processing zones, which employ a total of approximately 90,000 workers. Even assuming, for the sake of argument, that the Government's administrative record on labour rights were perfect, there was still the problem of the lack of labour justice at the judicial level. While the judiciary was and should be the most independent and impartial branch of a government, he noted that it was still an integral part of that government. Therefore, the Costa Rican authorities had to assume responsibility for their courts' actions in impeding compliance with the Convention. With regard to the continued lack of collective bargaining and strike guarantees for public sector workers not engaged in the administration of the State, he recalled that the Government had been telling the ILO for the last four years that there were various legislative proposals pending which would correct the fundamental violations that existed. He noted that unenacted legislation did not suffice, nor de facto practices amounting to virtual rather than authentic collective bargaining. Finally, he referred to the comments of the Committee of Experts in regard to the Convention, stating that it strained credulity that there was not enough information to permit the Committee of Experts to make the link between trade union persecution and lack of effective collective bargaining in the private sector. As an example of this persecution, he noted information in the ICFTU report that workers in Costa Rica's banana sector were being fired and blacklisted for attempting to form unions, thereby negating their collective bargaining rights. Another method of anti-union persecution which precluded authentic collective bargaining in Costa Rica's private sector was the tolerance and recognition of the employer-dominated and manipulated Solidarista sham organization, also specifically mentioned in the Committee of Experts' report. He cited the FERTICA S.A. case as a blatant example of an employer engaging in anti-union persecution by means of unremedied anti-union firings, coupled with Solidarista favouritism, thereby preventing authentic collective bargaining. In conclusion, he concurred with the Worker members and the Worker member of Costa Rica that an ILO direct contacts mission should be sent to Costa Rica to bring about effective compliance with the Convention.

The Worker member of Brazil stated that Articles 1, 2 and 6 of the Convention were not being respected, as indicated in the report of the Committee of Experts and the statement made by the Worker member of Costa Rica. The establishment of a parallel executive committee, the slow proceedings, their ineffectiveness and non-implementation had been mentioned in relation to acts which violated the Convention. Moreover, public servants in the administrative sector had been denied the right to collective bargaining. The Government should ensure that administrative and judicial mechanisms to protect trade union rights were speedy and effective. Finally, he agreed that the Committee of Experts should request a direct contacts mission.

The Worker member of Colombia noted that the Committee was confronted with a classic case of violation of the ILO Conventions. The speaker expressed his concern with regard to the existence of the solidarist movement in Costa Rica, which he categorized as one of the worst enemies of the trade union movement. Moreover, he criticized a judgement issued with regard to a collective dispute in the fertilizer industry in Central America, in which the constitutionality of protecting the workers was challenged, following the termination of more than 300 workers. He noted that, while a regulatory decree established the necessary protection of the right of public servants to collectively bargain, in practice, this right could not be exercised in the education sector. Further, union registration was denied and the exercise of union activity was hindered. Lastly, he emphasized that the Government should undertake to observe the Convention and to combat all those instruments that endangered the right to work and to collective bargaining, such as solidarism.

The Government representative of Costa Rica indicated that the documents and draft Bills to which he had referred were in the possession of the Committee of Experts, with the exception of those that were in the process of being finalized, such as the draft law relating to severance pay. Certain issues being addressed today were old matters that the Government was willing to resolve and it had made great efforts to do so in an expedited manner. He indicated that the Worker member of Costa Rica had been less than truthful in denying the will of the Government to resolve these issues in a cooperative manner, recalling that his trade union organization had taken part in this participatory process. He noted that the draft law on public sector employment had been published in the Official Gazette on 29 October 1998. Additionally, he recalled that the process of reorganization and restructuring of the Labour Inspectorate which began in July of 1998 was the fruit of an accord reached through the participatory process and that a regulation was ready to be implemented in a matter of days. Efforts had been made to allocate monies in the 1999 budget to cover travel costs and purchase vehicles for the Labour Inspectorate. He pointed out to the Worker member of the United States that there was separation of powers in Costa Rica, that these powers were independent, and that the delays in the judicial system were not the responsibility of the Government. With regard to the issue of collective negotiation in the public sector, he noted that the Constitutional Court had ruled that such negotiations could only take place if there were a law permitting it. In this respect, the Government had drafted a law that had of course been removed from the coordination process so that it could be subject to tripartite consultation. Responding to the Worker member of Colombia, he indicated that the conflict with the teachers was due to the Government's compliance with an international standard that required a minimum period for the academic year (200 days), resulting in the need to take certain measures affecting teachers. Nonetheless, the authorities were committed to finding a solution with the utmost willingness. This was a conflict in an embryonic state that had not yet given rise to a complaint. With regard to the problem of the trade unionist employed in the Banco Agricola, the matter was in the process of being resolved. Lastly, he reaffirmed the Government's will to resolve the problems referred to by the Committee of Experts.

The Committee took note of the statement made by the Government representative and of the discussion that took place thereafter. The Committee recalled that for a number of years, the Committee of Experts had drawn the Government's attention to the need to remove discrepancies between national legislation and the requirements of the Convention. In particular, the Committee of Experts had requested the Government to take measures to ensure the rapid expedition of proceedings in cases of anti-union discrimination and to encourage and promote free collective bargaining between the State and organizations of public servants who are not engaged in the administration of the State with a view to the regulation of the terms and conditions of employment of these public employees. The Committee reminded the Government that technical assistance or a direct contacts mission were at its disposal to help in solving the longstanding problems of the application of the Convention, in law and practice. The Committee urged the Government to supply a detailed report to the Committee of Experts at its next session on the measures actually taken to ensure full compliance in the very near future, with the requirements of the Convention both in law and in practice.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee notes the Government’s reply to the observations of the Workers’ Union of Banco Popular (SIBANPO), the Confederation of Workers Rerum Novarum (CTRN), as well as the joint observations of the Juanito Mora Porras Trade Union Federation (CSJMP) and the National Association of Nursing Professionals (ANEP), sent in 2020. The Committee notes the joint observations of the CTRN and the Trade Union of JAPDEVA and related port workers (SINTRAJAP) received on 1 December 2022. The Committee also notes the joint and detailed observations of the CTRN, the Costa Rican Confederation of Democratic Workers (CCTD), the Costa Rican Workers’ Movement Central (CMTC), the General Confederation of Workers (CGT), and the Workers’ Unitary Confederation (CUT) received on 1 September 2023, concerning issues examined by the Committee in this comment. The Committee also notes the observations of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) sent by the Government together with its report, as well as the detailed observations of the Unity in Trade Union Action (UAS) received on 31 October 2023, which address issues examined below.

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and interference. The 2017 Act on reforming labour procedures introduced amendments with the objective of making judicial procedures relating to acts of anti-union discrimination more expeditious and effective, and the Committee noted that between 2017 and 2019, the procedures for these cases were before the administrative authorities for four months. The Committee requested the Government to continue sending statistics. The Committee notes the Government’s indication that, between 2019 and 2022, the inspection directorate examined a total of 14 cases of anti-union harassment or unfair labour practices. The Government further highlights that recently, with the support of the ILO, inspection guides were developed for dealing with complaints of unfair labour practices of an anti-union nature. With regard to legal proceedings, the Government indicates that in 2021, one case of appeal for dismissal of a trade union leader was examined and that in that same year the labour courts ruled on three cases of dismissal of trade union leaders in the private sector, procedures which lasted approximately 65 months, and two cases of trade union dismissal in the public sector, procedures which lasted approximately 77 months. While noting this information, the Committee observes that: (i) the Government has not provided any legal data on proceedings for 2022 and 2023, or on the content of the decisions adopted by the various competent authorities; and (ii) the average period before the rulings in the above-mentioned legal cases is especially long. The Committee further notes that the trade union confederations allege that anti-union acts in the pineapple and banana plantation sectors, domestic work and paid transportation of passengers are recurrent. Recalling the fundamental importance of ensuring flexible and effective protection against anti-union discrimination, the Committee requests the Government to: (i) provide full information on the decisions adopted by the inspection directorate and the courts with regard to anti-union discrimination; (ii) indicate, in the context of the application of theAct on reforming labour procedures, the reasons why the legal proceedings are still so slow; and (iii) include detailed information on the sectors mentioned by the trade union confederations.

Article 4. Collective bargaining in the public sector. Public servants not engaged in the administration of the State. For several years, the Committee has been requesting the Government to take the measures at its disposal to strengthen the right to collective bargaining of public servants not engaged in the administration of the State. The Committee notes the Government’s indication that, in addition to the collective agreements currently being negotiated: (i) 18 collective agreements are in force in the municipal sector and 15 are in the process of being approved; (ii) in the education sector, the collective agreement of the Ministry of Public Education is in force until 2024, and collective agreements of two universities are being approved; and (iii) four state enterprise collective agreements are in force in the banking, postal, electricity and fuel sectors, and another three are being approved in the banking, insurance and electricity sectors. The Government also indicates that, following a broad consultation process, which began in 2019, Framework Act No. 10159 on public employment was adopted and has been in force since 9 March 2023. The Government indicates that that Act seeks to regulate the statutory public employment and mixed employment relations between the Public Administration and public servants, in order of ensure efficiency and effectiveness in the provision of public goods and services, by establishing identical conditions of efficiency, position, working hours, conditions, and equal pay for equal work for public servants. The Government also indicates that even though, after two constitutionality consultations regarding the dossier based on which the Framework Act on public employment was enacted, the Constitutional Chamber ruled that there were no unconstitutional irregularities in the Bill, once the Act entered into force, several trade unions brought various claims of unconstitutionality which are pending resolution.

The Committee notes that the trade union confederations indicate that section 49 of Act No. 10159 sets forth that in the public sector collective bargaining may not be engaged in to make amendments or changes to the general wage scale, or to create new incentives, benefits or further expenditure. The confederations express their concern in this regard and underscore that this empties collective bargaining of its content. They also indicate that, as a corollary of this Act and the freezing of wage increases under Act No. 9635 on strengthening public finances of 2019, the Committee on Public Sector Wages, the only forum for collective wage bargaining, was disbanded. The confederations highlight that, when it examined the application of the Employment Policy Convention, 1964 (No. 122), in June 2023, the Conference Committee on the Application of Standards urged the Government to take measures to ensure that Act No. 9635 is fully aligned with the Convention and does not violate fundamental labour rights and principles.

The Committee notes that Framework Act No. 10159 on public employment only excludes from its scope of application non-state public bodies. The Committee expresses its concern at the impact of Act No. 9635 on strengthening public finances and Framework Act No. 10159 on public employment on collective bargaining of an economic nature in the public sector. The Committee notes that, while the Government indicates that Act No. 10159 reiterates the role that the right to freedom of association and collective bargaining play in the national legal system and that collective bargaining is not at risk in the country, the Act prohibits collective bargaining of an economic nature in the branches of the Republic (Executive, Legislative and Judicial), their offices and attached bodies and the Supreme Electoral Court; the decentralized institutional public sector comprising autonomous institutions and their attached bodies, including state universities, and the Costa Rican Social Security Fund; semi-autonomous institutions and their attached bodies and state public enterprises; the decentralized territorial public sector comprising municipalities, municipal district councils and their enterprises; as well as the competent public enterprises and institutions. The Committee once again recalls that all workers in the public sector who are not engaged in the administration of the State shall enjoy the right to collective bargaining, including with respect to wages, and that while the special characteristics of the public service require some flexibility, there are mechanisms through which compliance with budgetary limitations and the principle of equality in public employment can be reconciled with the recognition of the right to collective bargaining. Based on the foregoing, the Committee requests the Government to, in consultation with the social partners, take the necessary measures to revise Act No. 9635 on strengthening public finances and Framework Act No. 10159 on public employment to ensure that public servants not engaged in the administration of the State can exercise their right to collective bargaining on economic and wage matters in accordance with the Convention. While requesting the Government to report on the outcome of the above-mentioned claims of unconstitutionality, the Committee once again recalls the importance of taking measures to strengthen the right to collective bargaining in the public sector, such as those provided for in the Labour Relations (Public Service) Convention, 1978 (No. 151) and the Collective Bargaining Convention, 1981 (No. 154), whose ratification the Committee has encouraged on previous occasions.

Direct agreements with non-unionized workers. Having noted that up to 2019 the number of direct agreements increased considerably in comparison to the number of collective agreements in the private sector, the Committee requested the Government to take all necessary measures, including of a legislative nature, to step up the promotion of collective bargaining with trade union organizations within the meaning of the Convention. The Committee notes the Government’s indication that the inspection directorate issued circular No. 01304-20 which states that: (i) in cases where the Department of Trade Union Organizations establishes that a trade union or union section is registered in the enterprise, the signatories to the agreement and the representative of the union or union section must report, within five days, the total number of workers providing their services in the enterprise and the number of affiliated workers; and (ii) if the affiliation of workers to the trade union or union section is at least half plus one of the workers in the enterprise, the General Labour Inspectorate, through a reasoned decision, shall return the direct agreement to the signatories without approving it, otherwise it shall proceed with the examination of the direct agreement. The Government also indicates that the inspection directorate is clear that direct agreements and collective agreements are legal instruments of collective labour law, which fall under the general concept of collective bargaining and are regulated by the Labour Code. The Committee notes the statistical data provided by the Government and observes that from 2019 to 2022, a total of 131 collective agreements were concluded in the private sector (approximately 30 per year) which covered a total of 52,015 workers and 333 collective agreements in the public sector (approximately 80 per year) which covered 603,161 workers. The Committee regrets to note that the Government has not provided statistical information on the number of direct agreements concluded with non-unionized workers. The Committee notes the trade union confederations’ indication that the trend and increases in direct agreements, and the decrease in collective agreements, continue. Regarding circular No. 01304-20 which provides that the labour administration will not process direct agreements where there is only one trade union that affiliates more than half of the enterprise’s workers, the Committee reiterates 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 therefore requests the Government to: (i) in consultation with the social partners, take all the necessary measures, including of a legislative nature, to ensure that the conclusion of direct agreements with non-unionized workers is only possible in the absence of trade union organizations and to provide information in this respect; and (ii) provide detailed statistical information on the number of collective agreements signed in the public and private sectors, and the number of direct agreements with non-unionized workers.

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

The Committee notes the observations of the Workers' Union of Banco Popular (SIBANPO), the Confederation of Workers Rerum Novarum (CTRN), as well as the joint observations of Juanito Mora Porras Trade Union Federation (CSJMP) and the National Association of Nursing Professionals (ANPE) received on 29 and 30 September, and 1 October 2020 respectively. The Committee notes that, in addition to addressing the matters examined in this comment, the observations refer to the impact that Act No. 9635 on strengthening public finances, in force since July 2019, and Bill No. 21336 on public employment would have on the exercise of the rights guaranteed by the Convention. Noting the repeated observations of trade union organizations denouncing the restrictions that run counter to the Convention to the right to collective bargaining of public servants not engaged in the administration of the State, the Committee requests the Government to provide its comments in this respect. It also requests it to provide information on the development of the aforementioned Bill on public employment and trusts that within its framework the guarantees of the Convention will be taken fully into account.

As it has not received supplementary information from the Government, the Committee reiterates the content of its comment adopted in 2019 and repeated as follows:

The Committee notes the Government’s replies to the 2014 observations of the International Trade Union Confederation (ITUC) and the 2016 observations of the CTRN. The Committee also notes the detailed observations of the CTRN, received on 31 August 2019, related to matters addressed by the Committee in the present comment. The Committee further notes the joint observations of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) and the International Organisation of Employers (IOE), received on 2 September 2019, and notes the Government’s reply to those observations.

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and interference. In its most recent comment, the Committee noted with satisfaction that Act No. 9343 on reforming labour procedures, which entered into force in July 2017, introduced amendments with the objective of making judicial procedures relating to acts of anti union discrimination more expeditious and effective. The Committee notes the Government’s indication that this Act introduced a special, expedited and preventive procedure for cases of anti-union discrimination, which are dealt with as a matter of priority and following a specific procedure, both by the administrative and judicial authorities. The Committee notes the statistical data provided by the Government and notes that: (i) between 2016 and 2019, the labour inspectorate processed a total of 67 cases of anti-union harassment or unfair labour practices; (ii) the procedures for these cases were before the administrative authorities for 104 days on average; (iii) between July 2017 and May 2019, a total of 207 files related to special protection cases were submitted to the judicial authorities, 59 of which were for anti-union discrimination; and (iv) on average, procedures for anti-union discrimination cases were before the judicial authorities for 128 days, from the submission of the file until the ruling of the Second Chamber of the Supreme Court of Justice. Recalling that, in previous years, 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 Committee notes with satisfaction the statistical information provided by the Government, which bears witness to the practical impact of the procedural reform. The Committee also notes that the Government hopes to be able to provide information on the nature of the penalties and compensation at a later date. The Committee, encouraged by the developments regarding the length of procedures, requests the Government to continue providing statistics on the number of cases of discrimination examined and the length of the procedures, and also to provide information on the nature of the penalties and compensation imposed.

Article 4. Collective bargaining in the public sector. Public servants not engaged in the administration of the State. The Committee recalls that, for many years, it has been expressing concern with regard to the frequent use of legal actions for unconstitutionality to challenge the validity of collective agreements concluded in the public sector. In its last comment, the Committee had taken note that the Office of the Comptroller General of the Republic had lodged a legal action for unconstitutionality against a collective agreement of a public sector bank and that the legal action was still pending. The Committee notes that this issue was examined recently by the Committee on Freedom of Association in Case No. 3243 and refers to the recommendations made by that Committee in its 391st report of October 2019. The Committee also notes the Government’s indication that it is continuing to implement the policy for the revision of collective agreements in the public sector, initiated in 2014, with the objective of avoiding recourse to legal procedures and seeking, through social dialogue, to streamline and adapt them to the country’s fiscal reality and austerity policy. The Government further indicates that the parties, after denouncing their collective agreements, renegotiate a new agreement, in line with the parameters of reasonableness and proportionality established by the Constitutional Chamber, which diminishes the possibility of the collective agreements being challenged later through constitutional action. In this regard, the Government reports that, during 2018 and until May 2019, the Department of Labour Relations of the Directorate of Labour Affairs approved 19 collective agreements in the public sector. The Committee also notes that, in its observations, the CTRN denounces a series of violations to the right of public servants to negotiate collectively their terms and conditions of employment. The Committee notes that the issues to which the CTRN refers to in its observations, coincide with the issues that are the subject of a representation made under article 24 of the ILO Constitution, which is pending.

The Committee emphasizes that, for many years it has been examining a number of obstacles to the full implementation of Article 4 of the Convention in the country’s public sector. The Committee recalls, in this regard, that all workers in the public sector who are not engaged in the administration of the State (for example, employees in public enterprises, municipal employees and those in decentralized entities, public sector teachers and transport sector personnel) shall enjoy the right to collective bargaining, including with respect to wages, and that while the special characteristics of the public service require some flexibility, there are mechanisms through which compliance with budgetary limitations can be reconciled with the recognition of the right to collective bargaining.

Recalling its previous observations, the Committee trusts that the Government, in consultation with the representative trade unions in the sector, will take the measures at its disposal to strengthen the right to collective bargaining of public servants not engaged in the administration of the State. The Committee requests the Government to report on any action taken in this regard.

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 remained very low, the number of direct agreements with non-unionized workers was very high. The Committee also noted Ruling No. 12457-2011, which confirmed that direct agreements could not prejudice the negotiation of collective agreements and, consequently, the exercise of freedom of association. In this respect, the Committee notes the Government’s indication that compliance with this ruling is mandatory, for both the administrative and judicial authorities and that, accordingly, on 2 May 2012, the labour inspectorate issued Circular No. 018-12, addressed to all the officials of the labour inspectorate, indicating that, in the event that there is a trade union organization and a permanent workers’ committee, the inspector shall ensure that there is no violation of freedom of association, and in the event of any conflict or discord that warrants any type of negotiation or conciliation, the inspector shall inform the Directorate of Labour Affairs so that it may follow the applicable procedure under the terms of Ruling No. 12457-2011. The Committee takes note of the statistical data provided by the Government and notes that: (i) between 2014 and April 2019, an average of 30 collective agreements per year were concluded in the private sector and 80 collective agreements per year in the public sector; and (ii) in the period from 2014 to August 2018, an average of 160 direct agreements per year were concluded. The Committee also notes that, while in 2018 some 83 collective agreements were concluded in the public sector and 33 collective agreements in the private sector, covering 153,037 and 14,346 workers respectively, in the same year, 180 direct agreements were concluded, covering 48,239 workers. The Commission further notes that the number of direct agreements has increased over the years: from 118 direct agreements in 2014, to 180 direct agreements in 2018. 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. Noting that the number of direct agreements has increased considerably in comparison to the number of collective agreements in the private sector, the Committee requests the Government to take all necessary measures, including of a legislative nature, to step up the promotion of collective bargaining with trade union organizations within the meaning of the Convention. The Committee also requests the Government to provide information on the impact of Circular No. 018-12 of the Labour Inspectorate, as well as any other measures adopted in light of Ruling No. 12457-2011.

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

The Committee notes the Government’s replies to the 2014 observations of the International Trade Union Confederation (ITUC) and the 2016 observations of the Confederation of Workers Rerum Novarum (CTRN). The Committee also notes the detailed observations of the CTRN, received on 31 August 2019, related to matters addressed by the Committee in the present comment. The Committee further notes the joint observations of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) and the International Organisation of Employers (IOE), received on 2 September 2019, and notes the Government’s reply to those observations.

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and interference. In its most recent comment, the Committee noted with satisfaction that Act No. 9343 on reforming labour procedures, which entered into force in July 2017, introduced amendments with the objective of making judicial procedures relating to acts of anti union discrimination more expeditious and effective. The Committee notes the Government’s indication that this Act introduced a special, expedited and preventive procedure for cases of anti-union discrimination, which are dealt with as a matter of priority and following a specific procedure, both by the administrative and judicial authorities. The Committee notes the statistical data provided by the Government and notes that: (i) between 2016 and 2019, the labour inspectorate processed a total of 67 cases of anti-union harassment or unfair labour practices; (ii) the procedures for these cases were before the administrative authorities for 104 days on average; (iii) between July 2017 and May 2019, a total of 207 files related to special protection cases were submitted to the judicial authorities, 59 of which were for anti-union discrimination; and (iv) on average, procedures for anti-union discrimination cases were before the judicial authorities for 128 days, from the submission of the file until the ruling of the Second Chamber of the Supreme Court of Justice. Recalling that, in previous years, 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 Committee notes with satisfaction the statistical information provided by the Government, which bears witness to the practical impact of the procedural reform. The Committee also notes that the Government hopes to be able to provide information on the nature of the penalties and compensation at a later date. The Committee, encouraged by the developments regarding the length of procedures, requests the Government to continue providing statistics on the number of cases of discrimination examined and the length of the procedures, and also to provide information on the nature of the penalties and compensation imposed.

Article 4. Collective bargaining in the public sector. Public servants not engaged in the administration of the State. The Committee recalls that, for many years, it has been expressing concern with regard to the frequent use of legal actions for unconstitutionality to challenge the validity of collective agreements concluded in the public sector. In its last comment, the Committee had taken note that the Office of the Comptroller General of the Republic had lodged a legal action for unconstitutionality against a collective agreement of a public sector bank and that the legal action was still pending. The Committee notes that this issue was examined recently by the Committee on Freedom of Association in Case No. 3243 and refers to the recommendations made by that Committee in its 391st report of October–November 2019. The Committee also notes the Government’s indication that is continuing to implement the policy for the revision of collective agreements in the public sector, initiated in 2014, with the objective of avoiding recourse to legal procedures and seeking, through social dialogue, to streamline and adapt them to the country’s fiscal reality and austerity policy. The Government further indicates that the parties, after denouncing their collective agreements, renegotiate a new agreement, in line with the parameters of reasonableness and proportionality established by the Constitutional Chamber, which diminishes the possibility of the collective agreements being challenged later through constitutional action. In this regard, the Government reports that, during 2018 and until May 2019, the Department of Labour Relations of the Directorate of Labour Affairs approved 19 collective agreements in the public sector. The Committee also notes that, in its observations, the CTRN denounces a series of violations to the right of public servants to negotiate collectively their terms and conditions of employment. The Committee notes that the issues to which the CTRN refers to in its observations, coincide with the issues that are the subject of a representation made under article 24 of the ILO Constitution, which is pending.

The Committee emphasizes that, for many years it has been examining a number of obstacles to the full implementation of Article 4 of the Convention in the country’s public sector. The Committee recalls, in this regard, that all workers in the public sector who are not engaged in the administration of the State (for example, employees in public enterprises, municipal employees and those in decentralized entities, public sector teachers and transport sector personnel) shall enjoy the right to collective bargaining, including with respect to wages, and that while the special characteristics of the public service require some flexibility, there are mechanisms through which compliance with budgetary limitations can be reconciled with the recognition of the right to collective bargaining.

Recalling its previous observations, the Committee trusts that the Government, in consultation with the representative trade unions in the sector, will take the measures at its disposal to strengthen the right to collective bargaining of public servants not engaged in the administration of the State. The Committee requests the Government to report on any action taken in this regard.

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 remained very low, the number of direct agreements with non-unionized workers was very high. The Committee also noted Ruling No. 12457-2011, which confirmed that direct agreements could not prejudice the negotiation of collective agreements and, consequently, the exercise of freedom of association. In this respect, the Committee notes the Government’s indication that compliance with this ruling is mandatory, for both the administrative and judicial authorities and that, accordingly, on 2 May 2012, the labour inspectorate issued Circular No. 018-12, addressed to all the officials of the labour inspectorate, indicating that, in the event that there is a trade union organization and a permanent workers’ committee, the inspector shall ensure that there is no violation of freedom of association, and in the event of any conflict or discord that warrants any type of negotiation or conciliation, the inspector shall inform the Directorate of Labour Affairs so that it may follow the applicable procedure under the terms of Ruling No. 12457-2011. The Committee takes note of the statistical data provided by the Government and notes that: (i) between 2014 and April 2019, an average of 30 collective agreements per year were concluded in the private sector and 80 collective agreements per year in the public sector; and (ii) in the period from 2014 to August 2018, an average of 160 direct agreements per year were concluded. The Committee also notes that, while in 2018 some 83 collective agreements were concluded in the public sector and 33 collective agreements in the private sector, covering 153,037 and 14,346 workers respectively, in the same year, 180 direct agreements were concluded, covering 48,239 workers. The Commission further notes that the number of direct agreements has increased over the years: from 118 direct agreements in 2014, to 180 direct agreements in 2018. 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. Noting that the number of direct agreements has increased considerably in comparison to the number of collective agreements in the private sector, the Committee requests the Government to take all necessary measures, including of a legislative nature, to step up the promotion of collective bargaining with trade union organizations within the meaning of the Convention. The Committee also requests the Government to provide information on the impact of Circular No. 018-12 of the Labour Inspectorate, as well as any other measures adopted in light of Ruling No. 12457-2011.

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

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.

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

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.

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

Comments from employers’ and workers’ organizations. The Committee notes the comments on the application of the Convention made by the World Federation of Trade Unions (WFTU), the National Federation of Employees of the Social Security System and Fund (UNDECA) (23 July 2012), the International Trade Union Confederation (ITUC) (31 July 2012), according to which it is almost impossible to establish and operate a trade union in the private sector, and the Confederation of Workers Rerum Novarum (CTRN) (30 August 2012), underlining the relevance of the Committee’s comments. The Committee also notes the comments of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) (12 April 2012), referring to matters already under examination by the Committee. The Committee notes that the information provided by the Government in its report covers a large part of the problems raised in the above comments. Finally, the Committee notes the Government’s reply to the comments of the CTRN, dated 31 August 2011.

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 emphasized 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. The Committee notes that, according to the ITUC and the CTRN, delays in judicial proceedings 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 previously 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 also noted the conclusions of the ILO technical assistance mission in 2011 on this issue:

With regard to the issue of the slowness and ineffectiveness of proceedings relating to anti-union discrimination and interference, the mission draws the attention of the Committee of Experts to the significant Bill to reform labour procedures (which is intended to speed up labour procedures, including those relating to acts of anti-union discrimination or interference, and in practice establishes a special expeditious procedure for matters relating to trade union rights). The Bill is being promoted by the Government, trade union confederations and the UCCAEP, and is under examination in the Legislative Assembly, where it is favoured by the majority of the groups, according to the understanding gained by the mission from its meetings with the heads of groups and the Legal Affairs Commission of the Legislative Assembly. If the Bill is finally adopted, it could give effect to the comments of the Committee of Experts on the need for expeditious and efficient justice and effective procedures to punish acts of anti-union discrimination or interference. Certain authorities and trade union confederations agree that there was a fear of dismissal when wishing to establish or join a union, for which reason the Bill is of the greatest importance. The Bill also deals with other matters relating to the application of Convention No. 87. The mission draws the attention of the Committee of Experts to other measures referred to by the Government and the judicial authorities to combat delays in judicial proceedings.

The Committee notes the Government’s indications as follows: (1) the legislative process concerning the bill to reform labour procedures (legislative file No. 15990), and the agreements reached up to now have not been easy; (2) the bill is being given priority with a view to defending workers’ rights; (3) it was difficult to adapt the bill during the extraordinary sessions (December 2010 to April 2011), as the four sessions were devoted to hearing comments and the divergences between various streams of political thought and the different visions held in the plenary of the Assembly; (4) the judicial authorities made significant efforts during the period 2009–10 with a view to complying with the constitutional principle of prompt and full justice, thereby guaranteeing an efficient service for users; the Government refers to the creation of a new court, measures for the computerization of files, the restructuring of judicial offices and of the distribution of the workload, and measures to give effect to the principle of oral hearings; (5) the strengthening of labour institutions, both in the judicial system and in the Ministry of Labour and Social Security, have been priority areas that go beyond the current legislative framework, through which it is planned to reduce the duration of procedures to punish cases of anti-union acts, in accordance with the national tradition of democracy and safeguards in relation to the protection of labour rights; and (6) Directive No. 08, of 9 May 2011, includes a procedure for “cases for the re-establishment of protection” intended for unfair practices that remove freedom of association.

The Committee notes the Government’s additional indications that: (1) in May 2012, in the context of a special session of the Higher Labour Council, a tripartite dialogue and consultation body, a bipartite agreement was reached between employers and workers who called on the deputies to approve the text of Bill No. 15990, except in relation to the matters on which agreement has not been reached; (2) a passive approach is currently being adopted to the other bills relating to the matters under the Convention to which the ILO supervisory bodies refer (including Bill No. 13475), as Bill No. 15990 is broad and inclusive and takes their content into account; (3) it is clear that Bill No. 15990 is a vital tool for dealing with labour disputes effectively; (4) recently, as part of the efforts that have been made to reduce delays in judicial proceedings, the court in plenary issued the protocol on oral hearings in labour proceedings, the principal objective of which is to guarantee a just, expeditious and economic outcome to any cases heard through oral proceedings; (5) experience shows that in judicial offices in which oral hearings have been used, the period between the lodging of the complaint and the decision was reduced from 300 to 190 days, and sentencing, which previously occurred 45 days after the presentation of the evidence, is now done immediately; and (6) significant progress has also been made in terms of the inefficiency of labour and conciliation procedures which have contributed to improving the efficiency of complaint procedures lodged with the administration.

The Committee notes the confirmation by the UCCAEP of this tendency and its indication that it is continuing to promote the Bill to reform labour procedures, and hopes that it will be adopted in the near future. According to the UCCAEP: (1) the judicial authorities have been working to improve judicial procedures with a view to reducing delays, for example through the implementation of computerized proceedings in labour jurisdictions which facilitate the processing of files and the certification of the quality of proceedings in labour jurisdictions; and (2) the efforts made by courts of law to deal with these matters have resulted in cases of this type being decided in less than two years after passing through all the judicial procedures, which is an achievement in this respect.

The Committee however notes that Bill No. 15590 to reform labour procedures was approved by the Legislative Assembly in September 2012, but vetoed by the executive authorities in October 2012 on the grounds that two of the matters covered were unconstitutional (the regulation of strikes in essential services and the prohibition upon recruiting temporary staff to replace striking workers).

The Committee emphasizes the contradiction between the information provided by the Government and the indications of the trade union organizations on the duration of labour proceedings in cases of the violation of trade union rights. In any event, the Committee notes the information provided by the ILO mission that judicial proceedings last for four years. The Committee also notes the Government’s indication that in practice the number of complaints relating to anti-union practices is low (11 cases) and that the unionization rate is 9.6 per cent.

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 were preventing the Government from approving Bill No. 15990 to reform labour procedures will be resolved in the near future. The Committee expresses the firm hope that the parties in the Legislative Assembly will reach an agreement on the divergences and it requests the Government to provide information on any developments in this respect. The Committee also requests the Government to provide information on developments in the legislative procedure concerning Bill No. 13475 whose consideration, according to the Government, remains passive at the moment.

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 found unconstitutional a significant 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 noted previously the emphasis placed by the trade union organizations on the gravity of the problem of collective bargaining in the public sector and the requirements imposed by the Negotiating Policies Commission on public employees, and 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 for the ratification of the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154) (which resulted from a tripartite agreement), show the lack of interest in moving forward.

The Committee also referred to the report of the 2011 ILO mission, which in its conclusions indicated as follows:

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 mission wishes to indicate that the new Attorney-General and the new Citizens’ Ombudsperson have a good understanding of ILO principles and that legal actions for unconstitutionality have not been initiated, which is very positive. The statistics provided by the Government appear to indicate that the scope of the problem has diminished in recent years. More specifically, 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. According to the Government, the number of legal challenges currently before the courts is five.

The mission adds that in the Constitutional Chamber of the Supreme Court three of the seven magistrates align themselves with the ILO principles indicated by the Committee of Experts, and it is believed that the other magistrates have a better understanding of the meaning of the comments of the Committee of Experts. It is therefore necessary for the Committee of Experts to continue following developments on this matter, particularly taking into account the fact that in the past one political party filed certain of these legal actions for unconstitutionality.

The mission also welcomes the training provided for members of the three State authorities and the social partners, to which the Government refers, and in particular appreciates the forthcoming workshop on collective bargaining.

The mission recalls that, although there may be cases of serious breaches of constitutional rights in certain clauses of agreements, it is normal and customary for collective agreements to contain provisions that favour trade union members, particularly because many of these agreements are concluded in the framework of a collective dispute in which both parties frequently make concessions, and nothing prevents non-members from becoming members of one or other trade union if they wish to obtain more favourable treatment. In any case, collective bargaining as an instrument of social peace cannot be submitted to recurrent scrutiny of its constitutionality without losing its prestige and enormous value. In other words, it is necessary to endeavour to prevent the abuse of legal actions for unconstitutionality.

The Committee notes the Government’s indications that: (1) the scope of the problem has tended to diminish in recent years; (2) of the five pending challenges to find clauses unconstitutional that are before the Constitutional Chamber, which were noted by mission, two have been decided through rulings Nos 2012-01279 and 04942-2012; (3) one of the rulings found the challenge to be without merit as the Constitutional Chamber cannot review or evaluate the content of collective agreements, which govern labour relations in accordance with the fundamental rights of organization and bargaining, and in view of the legal force with which they are endowed by the Constitution in section 62; in addition, it found that such agreements are valid for a certain period and can be revised, although through the due legally established procedures.

The Committee hopes that the three challenges to find clauses unconstitutional that are awaiting decision by the Constitutional Chamber will be finalized in the near future in accordance with the principles of Convention No. 98 and requests the Government to provide information on any developments in the situation, including any further challenges lodged against clauses of collective agreements. The Committee requests the Government to use all the means at its disposal to make progress with the draft legislation, with tripartite support, with a view to reinforcing the right to collective bargaining in the public sector, including the draft texts for the ratification of Conventions Nos 151 and 154.

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 they are around 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 in April 2012 a report was submitted to the President of the Commission on Collective Bargaining Policies in the Public Sector with a view to notifying the members of the Commission of the report prepared by the ILO technical assistance mission which took place in 2011, so that its report could be examined. The Government adds that the criticisms of the trade unions noted by the Committee of Experts concern matters which arose years ago, and that nevertheless in recent years the Commission on Collective Bargaining Policies has endeavoured to discharge the functions set out in Decree No. 29576-MTSS, for which reason these situations have now been superseded and there are no challenges pending currently. During the course of 2011, the Commission on Collective Bargaining Policies in the Public Sector had before it various submissions concerning draft texts, complaints and additions to collective agreements.

The Committee recalls that, with reference to the complaints made by trade union confederations concerning the unsatisfactory operation of the Commission on Collective Bargaining Policies (its 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 with a view to evaluating the system and adopting reforms. The Committee requests the Government to provide information on this subject and trusts that evaluation meetings will be held and will address the problems relating to the operation in practice of the Commission on Collective Bargaining Policies.

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 to discuss 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 Convention No. 98 establishes the principle of the promotion of collective agreements with trade union organizations and that such collective agreements have constitutional rank in Costa Rica.

The mission wishes to note that, at the end of its session, there were before the Legislative Assembly draft amendments of differing content during the examination of the Bill to reform labour procedures: some sought to abolish direct agreements, and others to promote them, others to make them possible in the public sector and others to leave the regulations as they are at present. The mission wishes to point out that the problems raised by the Committee of Experts may be either aggravated or overcome depending on the final decision taken by the Legislative Assembly.

According to the data provided by the Government, there are 298 active unions (with 195,950 members and 1,195 trade union leaders) and six confederations. The unionization rate is 10.3 per cent (8.3 per cent in 2007). The number of members in the public sector is 123,568 and in the private sector 72,382. Seven cases of anti-union persecution were reported in 2010.

With regard to collective agreements, according to the Government, in May 2011 there were 70 collective agreements covering 50,600 workers in the public sector. In the private sector, there are 15 collective agreements in force concluded by trade union organizations and 159 direct agreements concluded by standing committees of (non-unionized) workers. The mission emphasizes that the Government has not yet provided data on the coverage (number of workers covered) of collective agreements and direct agreements in the private sector. The trade union confederations allege that the Government is pursuing in practice a policy of promoting direct agreements with non-unionized workers. The Government asserts that it is the workers who choose between the forms of association that exist in the country, although in the view of the mission the situation is not so clear. Based on all of its meetings, and particularly those with various authorities and certain magistrates of the Supreme Court, it is clear that the expansion of direct agreements is being promoted in the country.

The Committee notes the UCCAEP’s indication that direct agreements had their origins as a form of dialogue and in the need for workers to organize, in accordance with the protection afforded by the Workers’ Representatives Convention, 1971 (No. 135). This does not prevent those workers who so wish from organizing themselves in unions with the protection of the Constitution and international Conventions. Both legal formulae, which have their basis in both international and national law, can coexist with validity as they both allow dialogue between the parties. Nor should it be forgotten that, where unions exist, they prevail over standing workers’ committees. 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 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, which is even endorsed by the ILO. The UCCAEP indicates that the high-level mission was able to note the existence of such workers’ representatives, as an independent organization, seeking dialogue and the improvement of the conditions of workers, and that they cannot be disregarded as a reality recognized by the law, and that the members of the mission called for them to be better regulated based on objective criteria. This recommendation is also contained in the draft Code of Labour Procedure, which was ultimately opposed by trade union representatives.

The Committee notes the Government’s indications that: (1) the three authorities of the Republic share a focus on action to consolidate social dialogue between the social partners concerned and the promotion of the right to collective bargaining in the private sector; (2) activities are being undertaken to promote the right to collective bargaining (four new training workshops were held in June and July 2012); (3) in September 2011, in the case of the enterprise ANFO and the trade union SITRAPECORI, based on an appeal for the protection of constitutional rights (amparo) by the union, the Constitutional Chamber found that in a situation of the coexistence of a standing committee of workers and a trade union in the same enterprise, the right to collective bargaining lies essentially with the unions, which prevail over any other type of labour organization in collective bargaining; this ruling by the Constitutional Chamber safeguards the rights of unions and offers the clarification that standing workers’ committees are specific bodies for the resolution of economic and social collective disputes, in the following terms: “... they are not envisaged by the ordinary law as permanent bodies to represent the economic and social interests of workers, but merely as a means of resolving specific or circumstantial economic and social disputes (ruling No. 12457-2011); (4) in light of the legal concepts referred to above, the coexistence in the enterprise of a standing workers’ committee and a trade union does not give rise to exclusivity in their representative roles and they are complementary within a democratic system of labour relations; (5) the legal purpose of standing workers’ committees is to represent workers solely under the circumstances indicated above, on the understanding that their functions do not include activities that are recognized as the exclusive prerogatives of trade unions; (6) it may be considered that direct agreements are another alternative for promoting collective bargaining as a means of achieving peaceful and agreed solutions to disputes between employers and workers; (7) the fact that those who negotiate these agreements are not members of unions is a direct consequence of one of the two possible dimensions of the right to organize, which also implies that membership is not compulsory; and (8) with regard to the disproportionate numbers of collective agreements and direct agreements, the Ministry of Labour and Social Security continues to focus on direct agreements not being used as an alternative to replace the conclusion of collective agreements, based on an understanding of the legal nature and scope of each of these labour instruments.

The Committee notes the Government’s further indication that the Constitutional Chamber does not deny the possibility of the existence in the industrial relations system of a dual model of representation, consisting of trade union organizations active at the enterprise level and freely elected workers’ representatives. As a consequence, it is clear that the questions raised by the ILO supervisory bodies concerning direct agreements are not addressed directly at these agreements, but rather at the establishment by workers of standing committees to resolve disputes with employers through direct agreements. For this reason, and irrespective of the final text which emerges from the agreements between the social partners concerning the Bill to reform labour procedure, the Ministry of Labour and Social Security has opted to undertake an examination and to hold consultations with a view to issuing regulations respecting the process of the election of workers’ representatives as members of standing committees when they lead to a direct agreement, thereby preventing such agreements from being used for anti-union purposes. Furthermore, 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, it is to be referred to the Directorate of Labour Affairs for confirmation of the applicable procedure.

The Government adds that the Institutional Commission for External Training (CICE) is now in operation within the Ministry of Labour and Social Security. The CICE is composed of various directorates and its principal function is the planning and implementation of training activities. This training is intended to promote workers’ rights in accordance with the terms indicated by the mission which visited the country in 2011. The project to promote the fundamental rights of workers (PRODEF), executed by the REAL CARD Foundation, is providing support to develop the structure of the plan of action of the CICE.

The Committee notes 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 93 collective agreements in the public sector (covering 57,877 workers), 16 in the private sector (covering 6,934 workers) and 125 direct agreements in the private sector (covering 29,761 workers). The Committee observes that, according to these statistics, the number of collective agreements in the private sector continues to be very low (13 in 2007, 15 in 2011 and 16 in 2012) and there is a very high number of direct agreements with non-unionized workers. The Committee points out 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 within the meaning of Convention No. 98. The Committee hopes to be able to note tangible progress in its next report.

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

In its previous observation, the Committee had noted the report of the high-level mission which visited the country in October 2006, as well as Cases Nos 2490 and 2518, examined by the Committee on Freedom of Association, which confirmed that a large number of trade unionists had been dismissed. The Committee notes the comments on the application of the Convention made by the Union of Medical Science Professionals of the Costa Rican Social Security Fund and Related Institutions (SIPROMECA) (April 2010), the International Trade Union Confederation (ITUC) (4 August 2011) and the Confederation of Workers Rerum Novarum (CTRN) (31 August 2011). The Committee notes the Government’s indications in its reports, which cover part of the problems raised in those comments, as well as the discussion on the application of the Convention in the June 2010 session by the Committee on the Application of Standards of the International Labour Conference. The Committee notes the report of the ILO technical assistance mission which visited the country from 16 to 20 May 2011, which was conducted in a climate of full cooperation. The Committee welcomes the fact that the new Minister of Labour has reactivated tripartite dialogue in the country, as indicated in the mission report.

Slowness and ineffectiveness of proceedings regarding complaints and compensation in the event of anti-union acts. The Committee noted previously that, according to the high-level mission that 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 that, in its comments, the ITUC indicated that the problem still exists. The employers’ organization UCCAEP indicated that legislative and judicial treatment of anti-union discrimination is satisfactory and pointed out that the criticism of Costa Rican law has mostly been levelled at the slow proceedings to overturn the dismissal of trade union leaders, and that action has been taken to improve matters in this respect, particularly through a Bill to reform labour procedures that is currently on the agenda of the Legislative Assembly.

The Committee notes the Government’s indications that: (1) a Bill to reform labour procedures was being discussed in the Legislative Assembly, of which the Legal Affairs Commission benefited from the participation of three deputies, the President of Chamber II of the Supreme Court of Justice, a representative of the Ministry of Labour and representatives of employers’ and workers’ organizations; (2) the Bill, the promotion of which was also decided upon by the Higher Labour Council (a national tripartite body), introduces oral hearings and strengthens protection against anti-union acts, is the outcome of ILO technical assistance and is an absolute priority for the Government, even though 234 amendments were submitted to it in 2011 due to divergences of views and lack of consensus among the deputies; (3) however, Bill No. 13475 to reform various sections of the Labour Code, Act No. 2 of 27 August 1943 and sections 10, 15, 16, 17 and 18 of Decree No. 832 of 4 November 1949, as amended, which is on the agenda of the Legislative Plenary, is intended to strengthen trade union activity in the country through reforms to the Labour Code intended to contribute to the establishment of unions in private enterprises and compliance with ILO standards; and (4) the executive authorities have given priority in the agenda of the Plenary to the Bill to reform labour procedures, as it is broader and more inclusive than the provisions of Bill No. 13475. The Government adds, with a view to quantifying appropriately the problem of the slowness of judicial procedures, that cases of the violation of trade union rights numbered 23 in 2007 and seven in 2010.

The Committee notes the efforts and improvements referred to by the Government at the institutional level to strengthen administrative procedures to penalize anti-union acts, and specifically: (1) a legislative initiative so that the labour inspectorate can impose administrative fines and does not have to refer cases to the judicial authorities to do so; (2) the Protocol of Good Inspection Practices for the Labour Inspectorate in Costa Rica, which includes a procedure for “cases of the reestablishment of rights”, especially for victims of unfair labour practices, which therefore prejudice the exercise of freedom of association, which was issued by Administrative Directive No. 15 (May 2011) and included in the Manual of Procedures for the Labour Inspectorate; the Protocol includes a section on freedom of association and collective bargaining, encompassing interviews with and the protection of unions during inspections; (3) the establishment of an electronic network in 28 of the 31 regional, provincial and cantonal offices; and (4) the implementation in 2008, 2009 and 2010 of the programme of joint inter institutional action in the construction and agricultural sectors, involving the National Insurance Institute, the Costa Rican Social Security Fund and the Ministry of Labour and Social Security, through the National Directorate of the General Labour Inspectorate, etc.

The Committee notes a series of initiatives to make judicial labour procedures more rapid and effective, which are detailed by the Government and were explained precisely by the Supreme Court to the 2011 ILO mission. The Committee nevertheless emphasizes that an essential aspect of the problem of the slowness of judicial procedures in cases of anti-union acts is related to the successive judicial appeals that are possible and the lodging of claims for amparo (the protection of constitutional rights).

The Committee however emphasizes that the Government has not conducted an evaluation of the impact of the general improvements in the administration of justice on proceedings relating to anti-union acts, where the principal problem lies in the appeals and claims for amparo which may delay sentencing for years. Nor has it provided information on the number of cases in which sanctions have been applied for breaches of the labour legislation in relation to trade union rights and on the sentences handed down in this respect which have become final, with an indication of the duration of the proceedings.

The Committee notes the conclusions of the ILO mission in 2011 concerning the issue of the slowness of proceedings in cases of anti-union acts:

With regard to the issue of the slowness and ineffectiveness of proceedings relating to anti-union discrimination and interference, the mission draws the attention of the Committee of Experts to the significant Bill to reform labour procedures (which is intended to speed up labour procedures, including those relating to acts of anti-union discrimination or interference, and in practice establishes a special expeditious procedure for matters relating to trade union rights). The Bill is being promoted by the Government, trade union confederations and the UCCAEP, and is under examination in the Legislative Assembly, where it is favoured by the majority of the groups, according to the understanding gained by the mission from its meetings with the heads of groups and the Legal Affairs Commission of the Legislative Assembly. If the Bill is finally adopted, it could give effect to the comments of the Committee of Experts on the need for expeditious and efficient justice and effective procedures to punish cases of acts of anti-union discrimination or interference. Certain authorities and trade union confederations agree that there was a fear of dismissal when wishing to establish or join a union, for which reason the Bill is of the greatest importance. The Bill also deals with other matters relating to the application of Convention No. 87. The mission draws the attention of the Committee of Experts to other measures referred to by the Government and the judicial authorities to combat delays in judicial proceedings.

The Committee regrets that, despite the visit by the ILO mission in May 2011, the Bill to reform labour procedures has still not been adopted, and firmly hopes that it will be adopted in the near future, and it requests the Government to provide the text of the future Act as soon as it is adopted. The Committee also regrets to note that Bill No. 13475 to amend various sections of the Labour Code and other legislative texts has been postponed in the Legislative Assembly and requests the Government to take measures to promote the examination of the Bill, and to provide information on that subject. The Committee expresses the firm hope that in the very near future the Government will be able to provide information on legislative progress relating to proceedings in cases of anti-union acts.

Submission of collective bargaining to criteria of proportionality and rationality (in its case law, the Constitutional Chamber of the Supreme Court of Justice had ruled unconstitutional a significant number of clauses in collective agreements in the public sector, at the instigation of the public authorities (the Citizens’ Ombudsperson, the General Prosecutor of the Republic) or one or other political party).

The Committee notes that the trade union organizations emphasized the gravity of the problem of collective bargaining in the public sector and the requirements imposed by the Negotiating Policies Commission on public employers, and 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 the ratification of the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154) (which resulted from a tripartite agreement), demonstrate the lack of interest in moving forward.

The Committee observes that the Government indicated in previous reports that: (1) the Government possesses the full will and commitment to resolve the problems raised by the Committee of Experts; (2) it has requested the ILO’s technical assistance and trusts that this will enable it to overcome the problems raised; (3) the Government’s efforts (many of them supported by tripartite agreement) to resolve these problems have included the submission of legislative proposals to the Legislative Assembly and their reactivation: a draft Constitutional amendment to Article 192, a Bill on collective bargaining in the public sector and the addition of subsection 5 to section 112 of the General Act on Public Administration (the three initiatives are intended to strengthen collective bargaining in the public sector); a draft amendment to the chapter of the Labour Code on freedom of association; approval of ILO Conventions Nos 151 and 154; (4) the Government’s efforts have also included other types of initiatives, such as intervention as an interested party (to defend collective agreements) in legal actions for unconstitutionality brought in order to annul specific clauses in collective agreements; (5) the present Government has the will to reactivate the respective draft legislation and has maintained contact with the executive authorities, including the Ministry of the Presidency, the legislative authorities, deputies from the various groups, including the leaders of the main opposition party, which also supports the reforms requested by the ILO. The Government indicates that it has sent reports to the judicial authorities forwarding the observations and positions of the Committee of Experts. The Government lays emphasis on the follow-up meetings held by the Minister of Labour and Social Security, on occasion with the technical assistance of the ILO Subregional Office, with this assistance including the gathering of information on matters relating to Conventions Nos 151 and 154 on collective bargaining. The Government adds that meetings have been held and activities undertaken to promote the Bills referred to above and that contacts have been established for that purpose with the Subregional Office in San José.

The Minister of Labour summarized the situation to the ILO mission in the following terms: with regard to the legal actions of unconstitutionality against clauses of collective agreements in the public sector, these are not now promoted by the public authorities; over the past four years, there have only been three legal actions for unconstitutionality; in practice, very few clauses have been struck down; and there are now changes in the position of the Constitutional Chamber along the lines called for by the ILO.

The Committee wishes to refer to the report of the ILO mission of 2011, which in its conclusions indicates as follows:

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 mission wishes to indicate that the new Attorney-General and the new Citizens’ Ombudsperson have a good understanding of ILO principles and that legal actions for unconstitutionality have not been initiated, which is very positive. The statistics provided by the Government appear to indicate that the scope of the problem has diminished in recent years. More specifically, 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. According to the Government, the number of legal challenges currently before the courts is five.

The mission adds that in the Constitutional Chamber of the Supreme Court three of the seven magistrates align themselves with the ILO principles indicated by the Committee of Experts, and it is believed that the other magistrates have a better understanding of the meaning of the comments by the Committee of Experts. It is therefore necessary for the Committee of Experts to continue following developments on this matter, particularly taking into account the fact that in the past one political party filed certain of these legal actions for unconstitutionality.

The mission also welcomes the training provided for members of the three State authorities and the social partners, to which the Government refers, and in particular appreciates the forthcoming workshop on collective bargaining.

The mission recalls that, although there may be cases of serious breaches of constitutional rights in certain clauses of agreements, it is normal and customary for collective agreements to contain provisions that favour trade union members, particularly because many of these agreements are concluded in the framework of a collective dispute in which both parties frequently make concessions, and nothing prevents non-members from becoming members of one or other trade union if they wish to obtain more favourable treatment. In any case, collective bargaining as an instrument of social peace cannot be submitted to recurrent scrutiny of its constitutionality without losing its prestige and enormous value. In other words, it is necessary to endeavour to prevent the abuse of legal actions for unconstitutionality.

The Committee expresses the firm hope that the Constitutional Chamber of the Supreme Court will take into account the principles of the Convention in its rulings on the five pending legal actions and once again requests the Government to do everything in its power to ensure that the Bills to strengthen the right to collective bargaining in the public sector, including those relating to the ratification of Conventions Nos 151 and 154, are examined and, it is to be hoped, adopted by the Legislative Assembly.

Operation of the Commission on Collective Bargaining Policies in the Public Sector. The Committee notes that the national trade union confederations allege that the Commission on Collective Bargaining Policies has a very negative effect on collective bargaining in the public sector. In its report, the ILO mission of 2011 indicates 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 they are around 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 projection of the level of future budgets of the State or of the decentralized institution concerned.

The Committee welcomes that the Minister of Labour, taking up a suggestion by the 2011 mission, indicated that with a view to examining improvements in the operation of the Commission on Collective Bargaining Policies in the Public Sector, the Commission would be invited to meet with the Higher Labour Council (a tripartite body). She was also in agreement to undertake workshops and activities to promote and develop collective bargaining with trade union organizations, including training activities to improve knowledge of comparative law, and to strengthen the content of collective agreements. The question of the ratification of Conventions Nos 151 and 154 concerning participation and negotiation machinery for public employees, which at one time had tripartite consensus, would be re-examined.

The Committee requests the Government to provide information on the meetings held between the Higher Labour Council (a tripartite body) and the Commission for Collective Bargaining Policies in the Public Sector and expresses the firm hope that in its next report the Government will be in a position to report significant progress in relation to the matters raised above.

Direct agreements with non-unionized workers. With regard to the tripartite evaluation requested by the Committee of Experts concerning the large number of direct agreements with non-unionized workers in comparison with collective agreements (the Committee had requested that the evaluation should be undertaken in light of the report of an independent technical expert on that subject), the ITUC had emphasized that the majority of direct agreements are promoted by employers and that this has resulted in the number of collective agreements in the private sector being reduced to a minimum. The employers’ organization UCCAEP had previously indicated that all parties had drawn attention to the importance of standing workers’ committees and the protection afforded them pursuant to the Workers’ Representatives Convention, 1971 (No. 135), ratified by Costa Rica. The UCCAEP added that it was clear that this is a reality in Costa Rica which has acted as a means of guaranteeing freedom, democracy and social peace and that to eliminate standing workers’ committees or direct agreements is to overlook and prejudice the right of workers to associate freely and settle their disputes peacefully and through dialogue. The Government recalled that only collective bargaining has constitutional rank and that an administrative directive of 4 May 1991 prohibits the labour inspectorate from looking into the content of a direct agreement when there is an established union, so that when there is such a union the direct agreement must be rejected outright.

The Committee recalls that an independent expert appointed by the ILO pointed out in 2007 that there were 74 direct agreements in force, whereas only 13 collective agreements remained.

The Committee notes that, according to the Government, although it may be deduced that there are very different reasons which promote the existence of more direct agreements than collective agreements in the private sector, as noted by the ILO supervisory bodies, it is certain that both have their origin in the Labour Code and can be freely chosen by the labour market parties. The right to collective bargaining in positive law in Costa Rica and in national practice, in addition to being an outstanding collective instrument, benefits from a higher level of protection due to its constitutional rank.

The Government adds that in 2010 the ILO selected the national territory as the location for a seminar on “Good practices in collective bargaining in Costa Rica”, in the context of the social dialogue project. The seminar benefited from the participation of representatives of the Ministry of Labour and Social Security, employers and workers and offered a good opportunity to promote social dialogue on the subject. Three enterprises and their respective trade union representatives participated to puncture myths relating to the results of collective bargaining in the private sector. It is a means of resolving collective disputes, with the sole intervention of the parties, or of some other agreeable party. For that purpose, workers can establish standing workers’ committees, which are responsible for raising their complaints and claims with employers or their representatives, orally or in writing. It is clear that the legal purpose of such standing committees is to represent workers, only under the circumstances indicated above, and on the understanding that their functions do not extend to activities which are recognized in the country as being the exclusive prerogative of the unions. In this respect, the Government adds, it may be considered that direct agreements are another alternative, through which collective bargaining is promoted as a means of achieving a peaceful and agreed solution to disputes between employers and workers. The fact that these agreements are not negotiated by members of trade unions is a direct consequence of one of the two possible dimensions of the right to freedom of association, which also implies that there is no requirement of membership. For this reason, the Government notes with prudence the terms in which the study on direct agreements was drawn up, as prepared by the independent specialist appointed by the ILO in 2007, as the analyses focus principally on the agricultural sector, which is then used as a basis for general conclusions covering the whole of the productive economy of the country in both the public and private sectors.

The Committee wishes to refer to the conclusions of the ILO mission of May 2011 on this subject, which are 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 members 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 to discuss 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 Convention No. 98 establishes the principle of the promotion of collective agreements with trade union organizations and that such collective agreements have constitutional rank in Costa Rica.

The mission wishes to note that, at the end of its session, there were before the Legislative Assembly draft amendments of differing content during the examination of the Bill to reform labour procedures: some sought to abolish direct agreements, and others to promote them, others to make them possible in the public sector and others to leave the regulations as they are at present. The mission wishes to point out that the problems raised by the Committee of Experts may be either aggravated or overcome depending on the final decision taken by the Legislative Assembly.

According to the data provided by the Government, there are 298 active unions (with 195,950 members and 1,195 trade union leaders) and six confederations. The unionization rate is 10.3 per cent (8.3 per cent in 2007). The number of members in the public sector is 123,568 and in the private sector 72,382. Seven cases of anti union persecution were reported in 2010.

With regard to collective agreements, according to the Government, in May 2011 there were 70 collective agreements covering 50,600 workers in the public sector. In the private sector, there are 15 collective agreements in force concluded by trade union organizations and 159 direct agreements concluded by standing committees of (non-unionized) workers. The mission emphasizes that the Government has not yet provided data on the coverage (number of workers covered) of collective agreements and direct agreements in the private sector. The trade union confederations allege that the Government is pursuing in practice a policy of promoting direct agreements with non-unionized workers. The Government asserts that it is the workers who choose between the forms of association that exist in the country, although in the view of the mission the situation is not so clear. Based on all of its meetings, and particularly those with various authorities and certain magistrates in the Supreme Court, it is clear that the expansion of direct agreements is being promoted in the country.

The Committee concludes that the imbalance between the number of collective agreements and that of direct agreements with non-unionized workers has worsened since 2007 to a worrying extent, and the current figures (a total of 15 collective agreements in the private sector concluded by trade unions and 159 direct agreements concluded by standing committees of non-unionized workers) show that effect is not being given to the requirement to promote collective bargaining in the private sector (Article 4 of the Convention), particularly when it is considered that the 15 collective agreements are not sectoral and that the Government has not provided information on the number of workers covered. The Committee notes with concern the conclusion of the mission report that the expansion of direct agreements is being promoted in the country.

The Committee welcomes the decision of the UCCAEP and the Minister of Labour to discuss this matter with trade unions in the context of the Higher Labour Council, including discussion of the report prepared by the ILO expert in 2007. The Committee welcomes the decision by the Minister of Labour to carry out activities in collaboration with the ILO Subregional Office to promote collective bargaining, including training activities.

The Committee awaits tripartite developments concerning the problem of direct agreements with non-unionized workers in light of the report prepared by the expert on this subject, as well as any satisfactory solution that is proposed, including programmes in all sectors and effective measures to promote collective bargaining with existing trade unions, to prevent the promotion of direct agreements and their use for anti-union purposes. The Committee expresses the firm hope that the Government will be in a position to provide information in its next report on a significant increase in the number of collective agreements.

In general terms, the Committee notes the Government’s indication in its report of its full disposal and will to resolve the problems raised. The Committee notes the initiatives of the high-level mission to promote the Bills submitted to the Legislative Assembly on the various matters raised by the Committee of Experts. The Committee once again deeply regrets that these Bills still have not been adopted even though they have been under examination and have had tripartite consensus for years. The Committee requests the Government to provide information on any development in this respect.

The Committee emphasizes once again that the pending issues raise important problems relating to the application of the Convention. Taking into account the various ILO missions which have visited the country over the years and the gravity of the problems, it hopes to be in a position to note substantial progress in the near future in both law and practice. The Committee requests the Government to provide information on any developments in this respect.

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

In its previous comments, the Committee noted the report of the High-level Mission that visited Costa Rica in October 2006, and Cases Nos 2490 and 2518, examined by the Committee on Freedom of Association, which confirmed that a large number of trade unionists had been dismissed. The Committee took note of the comments on the application of the Convention made by the International Trade Union Confederation (ITUC), the Confederation of Workers Rerum Novarum (CTRN), the Petroleum, Chemical and Allied Workers’ Union (SITRAPEQUIA) and the Costa Rican Federation of Chambers and Associations of Private Enterprises (UCCAEP). The Committee notes the Government’s reply to the comments in the CTRN’s communication of 12 September 2008. Lastly, it notes the discussion on the application of the Convention that took place in June 2009 in the Conference Committee on the Application of Standards.

Slowness and ineffectiveness of procedures regarding complaints and compensation in the event of anti-union acts. The Committee noted that, according to the High-level Mission that 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 notes that in its comments the ITUC states that the problem still exists. The employers’ organization UCCAEP states that legislative and judicial treatment of anti-union discrimination is satisfactory, and points out that the criticism of Costa Rican law has mostly been levelled at the slow proceedings for complaints claiming cancellation of dismissals of trade union leaders, and that work has been done to improve matters, particularly through a Bill to reform labour procedures currently on the agenda of the Legislative Assembly.

The Committee notes the Government’s statements to the effect that: (1) discussion of the legislation being developed under the Free Trade Agreement, signed by Central America, the Dominican Republic and the United States, has delayed discussion of the Bill to reform labour procedures in the Legislative Assembly but, because the Executive called for discussion of the Bill at the first meeting of the Assembly’s extraordinary plenary session (August 2009), at which the Executive determines the order of agenda items, the Bill to reform labour procedures (which addresses the problem of slow proceedings in cases of anti-union acts and strengthens the right to collective bargaining in the public sector) is the second item on the agenda of the Legislative Assembly’s Legal Affairs Committee (whose subcommittee was attended by three deputies, the President of the Second Chamber, a representative of the Ministry of Labour and representatives of employers’ and workers’ organizations); (2) the Bill, which also had the backing of the Higher Labour Council (a national tripartite body), introduces oral proceedings, strengthens protection against anti-union acts and is the outcome of ILO technical assistance; (3) furthermore, Bill No. 13475 to reform various provisions of the Labour Code, Act No. 2 of 27 August 1943, and sections 10, 15, 16, 17 and 18 of Decree No. 832 of 4 November 1949, and the amendments thereto is high on the agenda of the Assembly’s plenary session; the aim of this initiative is to strengthen trade union activity in the country through amendments to the Labour Code that contribute to the establishment of unions in private enterprises and to compliance with ILO international standards; the deputies are aware that this proposal forms part of the Government’s commitments still outstanding in the ILO, yet the Executive has placed adoption of the Bill to reform labour procedures higher on the plenary agenda, because it is broader and more inclusive than the provisions of Bill No. 13475.

The Committee further notes the information from the Government to the effect that various training activities have been conducted in connection with the problems pointed out by the Committee of Experts and have included judges, deputies and employers’ and workers’ organizations.

The Government adds that in 2008 the Judiciary had some 22,563 new labour-related cases before it, but completed 27,936 out of a total case load of 30,029. It can be inferred from this that the Judiciary has significantly shortened the average length of the proceedings in labour cases, and has reduced the case load. It is also pursuing a programme to deal with the backlog of cases, the aim being to develop a new system to improve the response and running of the administration of justice. To this end, a process has begun to reorganize the supernumerary judges’ programme by switching from an office-based scheme for the distribution of judges to a centralized scheme consisting of groups, each with a maximum of 20 judges and a work programme geared to providing assistance to offices with workloads that exceed their normal capacity; between the start-up of this programme in 2001, and 2008, 46,398 cases were received, in 38,209 of which there have been judgements, and in 8,189 of which files have been returned and matters have been settled from which it can be inferred that 82.3 per cent of the cases submitted were resolved by judges belonging to the abovementioned programme. Specifically, in 2008 the annual average of cases received was 5,799, with an annual average of 4,776 cases judged. In order to strengthen the justice administration system even further, the Supreme Court of Justice, at a plenary sitting held on Monday, 12 March 2007, approved the establishment of the Conciliation Centre of the Judiciary, which promotes flexible, informal and effective judicial mechanisms; in the course of 2008, in the various chambers of the abovementioned Conciliation Centre, 3,505 conciliation hearings were held and 2,606 agreements were reached, in other words conciliation agreements were reached in 74.35 per cent of the cases heard. The Government further indicates that the Ministry of Labour and Social Security is also engaged in strengthening alternative methods of administrative dispute settlement, and that through the Alternative Dispute Settlement Centre (RAC) of the Ministry’s Labour Relations Department, in 2008 and the first quarter of 2009 the number of persons heard rose to 8,738, with an average of 2,815 applications for conciliation hearings.

The Committee welcomes the actions and initiatives referred to by the Government that are described in the above paragraphs, particularly in the light of the Government’s previous report stating that in 2005 there were 38 cases of complaints of anti-union discrimination. There is no doubt that the general improvement in the administration of justice and the efficiency of proceedings will likewise have a positive effect on cases of anti-union practices. The Committee nonetheless notes that the Government has not assessed the impact of the general improvements in the administration of justice on proceedings relating to trade union actions, where the main problem is that owing to appeals and constitutional complaints (recursos de amparo), it can take years for a decision to be handed down. Nor has the Government provided information on the number of instances where penalties were imposed for breach of the labour legislation on trade union rights, and the number of decisions in such cases that have become final, as well as the length of the proceedings.

The Committee hopes that the Bill to reform labour procedures will be adopted in the near future and asks the Government to provide the text of the future Act as soon as it is adopted.

The Committee notes with regret, however, that Bill No. 13475 to reform various provisions of the Labour Code and other legal texts has not as yet been discussed although it is high on the agenda of the Legislative Assembly’s plenary session, and requests the Government to take steps to move the processing of the Bill forward, and to provide information in this regard. The Committee recalls that, at its session of June 2009, the Conference Committee on the Application of Standards asked the Government to submit, this year, a detailed time schedule of steps taken and future steps so that the legislative reforms were made a reality, and expressed the hope that the bills upon which tripartite consensus has been reached would be adopted without delay.

Submission of collective bargaining to criteria of proportionality and rationality. In its case law, the Constitutional Chamber of the Supreme Court of Justice had ruled unconstitutional a significant number of clauses in collective agreements in the public sector, at the instigation of public authorities (Citizens’ Ombudsman, General Prosecutor of the Republic) or one or another political party.

In its previous observation, the Committee noted that SITRAPEQUIA and the CTRN emphasized the seriousness of the problem of collective bargaining in the public sector and the constraints placed on public employers by the Committee on Negotiation Policy. It further noted that the CTRN and the country’s other confederations held the view that the long delay in the adoption of the bills to amend the legislation and ratify the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154) (which resulted from a tripartite agreement), demonstrates a lack of interest in moving forward.

The Committee observes that the Government referred to statements it had made in previous reports to the effect that: (1) the Government possesses the will and commitment to resolve the problems raised by the Committee of Experts; (2) it has requested the ILO’s technical assistance and trusts that this will enable it to overcome the problems raised; (3) the Government’s efforts (many of them supported by tripartite agreement) to solve these problems have included the submission of several legislative proposals to the Legislative Assembly and their reconsideration: a draft constitutional amendment (of article 192), a Bill on collective bargaining in the public sector and the addition of a subsection (5) to section 112 of the General Act on Public Administration (the three initiatives are intended to strengthen collective bargaining in the public sector); a draft amendment to the chapter of the Labour Code on freedom of association; approval of ILO Conventions Nos 151 and 154; (4) the Government’s efforts have also included other types of initiatives in legal actions of unconstitutionality brought in order to annul specific clauses in the agreements; (5) the present Government has the will to push forward draft legislation to resolve pending problems and has maintained contact with the Executive – including the Ministry of the Presidency – and parliament (deputies from various parties as well as the leaders of the principal opposition party which also supports the reforms sought by the ILO) for the re-examination of the draft texts in question. The Government states that it has sent reports to the judiciary forwarding the observations and position of the Committee of Experts. The Government lays emphasis on the follow-up meetings held by the Minister of Labour and Social Security, on occasion with the technical assistance of the ILO Subregional Office, with this assistance including the gathering of information on matters relating to Conventions Nos 151 and 154 on collective bargaining. The Government adds that a meeting was held with various representatives of all the sectors involved (the authorities, civil society, etc.) to analyse and seek consensus for the bill to reform labour procedures which is on the agenda of the Legislative Assembly.

The Committee requests the Government to provide information on developments regarding the draft legislation that has been under examination by the Legislative Assembly for years and which is intended to achieve greater efficiency and speed in the procedures for collective bargaining in the public sector, and on any developments regarding the Supreme Court of Justice’s case law on this matter.

The Committee notes that, at it session of June 2009, the Conference Committee on the Application of Standards took note of the Government’s commitment to create a bipartisan congressional committee with participation of all the State Powers and the social partners to promote the adoption of the bills that had tripartite support, with ILO technical assistance. The Committee recalls in this connection that the Conference Committee on the Application of Standards expressed the firm hope that in the very near future it would be able to note considerable progress in the application of the Convention, and trusted that the bills upon which tripartite consensus had been reached would be adopted without delay. It likewise trusted that the report due this year for examination by the Committee of Experts would include a copy of the bills so that the Committee of Experts could verify their conformity with the Convention. It asked the Government to submit, this year, a detailed time schedule of steps taken and future steps so that the legislative reforms were made a reality.

The Committee notes that in its latest report the Government reiterates many of its earlier statements, and indicates that the Higher Labour Council (a tripartite advisory body) agreed to analyse the bills relating to collective bargaining issues to determine which of them can be promoted on a tripartite basis, and that they include the bills relating to ILO Conventions Nos 151 and 154. The Committee notes that, according to the Government, the bill to reform labour procedure – which has tripartite support – is the second item on the agenda of the Legal Affairs Committee of the Legislative Assembly and that it aims, among other things, to strengthen the right to collective bargaining in the public sector. According to the Government, the Bill on the collective negotiation of collective agreements in the public sector, and the addition of a subsection (5) to section 112 of the General Act of Public Administration, is currently under examination. It was referred by the Legal Affairs Committee for consideration by the Special Commission on Human Rights. It is currently item No. 14 on the latter’s agenda. A legal report on the bill has been submitted by the Technical Services Department of the Legislative Assembly and it is expected that the deputies will move to have it discussed in ordinary sittings. As to the other bills and the ILO Conventions relating to freedom of association and collective bargaining, the Government indicates that, as soon as circumstances allow, they will be submitted to the Legislative Assembly, bearing in mind that these are matters pending for the Government which are of vital importance to strengthening the trade union rights of men and women workers in Costa Rica. The Committee notes with regret that discussion of the bills has again delayed.

According to the UCCAEP, the bill in question deals satisfactorily with collective bargaining in the public sector. The Government states that it is attaching copies of the bills as requested by the Committee on the Application of Standards at the 98th Session of the International Labour Conference. However, these texts have not been received and it is therefore not possible to verify their consistency with the Convention, as the Conference Committee asked.

It is with regret that the Committee must take note of this statement, in view of the fact that in previous years it was informed that these bills, which aimed to strengthen collective bargaining in the public sector, and most particularly those relating to ratification of Conventions Nos 151 and 154, had tripartite support and had already been submitted several times to the Legislative Assembly. The Committee asks the Government to do everything in its power to ensure that the bills to strengthen the right to collective bargaining in the public sector, including those relating to the ratification of Conventions Nos 151 and 154 are examined and, it is to be hoped, adopted by the Legislative Assembly.

The Committee also takes note of the information sent by the Government concerning developments in the case law since it last examined the application of the Convention, regarding relevant judicial decisions cancelling collective agreements on the basis of “criteria of proportionality and rationality”.

The Government states in particular that it views with optimism the developments regarding the issue of the cancelling by judicial bodies of clauses in collective agreements, and sees these developments as a positive outcome since there have been significant changes in the practical effect given to Convention No. 98 in recent years, owing to intense training and information activities that it has been carrying out with technical assistance from the ILO. The Government also expresses the view that it sees as positive the advances in the case law of the Second Chamber of the Supreme Court of Justice, the highest court dealing with labour matters. Time and again in its decisions, the Chamber has risen fully to the challenge set by the constitutional case law, finding collective agreements in the public sector to be constitutional. Furthermore, in its case law the Chamber cites not only the ILO Conventions that Costa Rica has ratified but also Conventions it has not ratified, such as Conventions Nos 151 and 154, as well as citing the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work and recalling that freedom of association and the right to organize, and effective recognition of the right to collective bargaining are established in the abovementioned instrument as fundamental rights to be applied by all member States of that Organization; it also confirms that Convention No. 98, along with the rights laid down in the ILO Declaration on Fundamental Principles and Rights at Work, not only take precedence over the law, but would be divided of their substance if exemption from the right to collective bargaining were to become the rule.

The Second Chamber thus finds that allowing collective bargaining is the rule and to restrict it the exception. In support of its finding, the Chamber cites Executive Decree No. 29576 of 31 May 2001 regulating the negotiation of collective agreements in the public sector. This decision, along with the dissenting opinions of the Constitutional Chamber, which the High-level Mission noted, together with the Second Chamber’s acceptance of the Regulations on collective bargaining in the public sector, are important legal events which could not only reduce but ultimately preclude the challenging of approved clauses in collective agreements, which might be the beginning of a ius laboris approach to analysis of an issue that has been dominated in recent years by administrative law scholars. But there are other positive cases where the Constitutional Chamber itself has found against appeals challenging public sector collective agreements as unconstitutional, as in Decision No. 2005-6858 of 1 June 2005.

The dissenting opinions of the Constitutional Chamber, referred to in the previous report (2008), which were noted by the High-level Mission, and the Second Chamber’s acceptance of the Regulations on collective bargaining in the public sector, are important legal events which could preclude any future appeals against approved clauses in collected agreements, which could be the beginning of a ius laboris approach to analysis of an issue which has for years been dominated by scholars of administrative law. This, says the Government, would increase the Costa Rican Government’s interest in overcoming the shortcomings pointed out by the Committee of Experts, for which it trusts that there will be international cooperation and technical assistance from the ILO.

The Committee welcomes these developments in the case law and infers from the foregoing that in 2008–09 there has been no further cancelling of clauses in collective agreements, and requests the Government to provide information on any new developments.

The Committee also welcomes the training for members of the three Powers of State and the social partners, referred to by the Government, and appreciates in particular the forthcoming workshop on collective bargaining in the public sector, which is to include an up to date study on developments on constitutional case law and the strengths and weaknesses of the existing regulations; information on this will be sent to the Committee.

The Committee recalls that, although there may be instances of serious breach of constitutional rights in certain clauses of agreements, it is normal and usual for collective agreements to provide favourable treatment for trade union members, particularly as many such agreements arise in the context of a collective dispute in which both parties make concessions, there is nothing preventing non-unionized from joining one or another union if they are seeking more favourable treatment, and in any event collective bargaining, as an instrument for social peace, cannot be repeatedly subjected to recurrent scrutiny as to constitutionality, without losing its credibility and enormous usefulness. In other words, undue recourse to constitutional challenge is to be avoided.

With regard to SITRAPEQUIA’s comments on the constraints that the Committee on Policy Negotiation places in practice on negotiation procedures in the public sector, the Committee asks the Government to refer this matter to the Higher Labour Council and to ask the latter and other relevant public authorities to undertake a thorough examination of the working of the current system, it being understood that state resources are not unlimited and that the Government has many social needs to meet.

With regard to the tripartite assessment requested by the Committee of Experts, relating to the high proportion of agreements concluded directly with non-unionized workers in relation to collective agreements, and which the Committee had asked to be carried out in the light of the report of an independent technical expert, the ITUC states that most such direct agreements are promoted by employers and that as a result the number of collective agreements in the private sector has been reduced to a minimum. The employers’ organization UCCAEP states that all parties have drawn attention to the importance of standing workers’ committees and the protection that arises for them pursuant to the Workers’ Representatives Convention, 1971 (No. 135), ratified by Costa Rica, and it is clear that this is a reality in Costa Rica which has acted as a means of guaranteeing freedom, democracy and social peace and that to eliminate standing workers’ committees or direct agreements is to overlook and abuse the right of workers to associate freely and settle their disputes peacefully and through dialogue.

The Committee welcomes the Government’s statement that it placed the abovementioned expert report on the agenda of the Higher Labour Council’s meeting of 30 April 2008; the meeting of 26 June 2008 re-examined the need for an analysis of the report, which proved owing to discussion of other items. The Government states that only collective bargaining has constitutional rank and that an administrative directive of 4 May 1991 bans the labour inspectorate from looking into the content of a direct agreement when there is an established union, so that when there is such a union the direct agreement must be rejected outright. The Committee notes that the Government is aware of the need to reactivate as soon as possible the tripartite study of the content of the expert report and hopes to be able to report on progress when discussions are resumed in the Higher Labour Council.

Lastly, the Government indicates that, in the Conference Committee on the Application of Standards, it sought ILO technical assistance to prevent standing committees of workers (non-unionized) and direct agreements (with non-unionized workers) from having any anti-union impact in practice, as pointed out by the independent expert. The Government states that the matter is complex and hopes that in the near future there will be an agreed-upon proposal for a satisfactory solution to the situation noted by the independent expert.

The Committee recalls that the independent expert pointed out a little over two years ago that there were 74 direct agreements in force whereas only 13 collective agreements remained. Lastly, the Committee recalls that at its meeting of June 2009 the Conference Committee asked the Government to submit this year a detailed time schedule of steps taken and future steps, so that the legislative reforms would be made a reality.

The Committee hopes to receive information on a tripartite approach to the problem of direct agreements with non-unionized workers in the light of the expert report, and of any other satisfactory solution proposed, including measures to promote collective bargaining with existing organizations of workers and to avoid direct agreements being used for anti-union purposes, which is to be presumed where a representative trade union already exists.

The Committee notes that in its report the Government states that it is fully disposed and willing to resolve the abovementioned problems. The Committee noted previously the initiatives taken by the High-level Mission to promote the bills submitted to the Legislative Assembly that pertain to the issues raised by the Committee of Experts, and that, at a special meeting of the Higher Labour Council (a tripartite body) that it attended, the Mission consulted the members and agreed unanimously to request the Legislative Assembly to set up a joint committee with ILO technical assistance for the processing of the bill to reform labour procedure. The Committee expresses the hope that the abovementioned joint committee in the Legislative Assembly will be established without delay and will take up the issues pending. It requests the Government to provide information in this regard. It notes that the Government has requested ILO technical assistance in ascertaining the consistency of the text of the Bill to reform labour procedure (No. 15990) with the principles of Conventions Nos 87 and 98, and suggests that such assistance be provided as soon as the Joint Committee is set up in the Legislative Assembly.

The Committee again points out that the issues pending raise important problems regarding the application of the Convention. Bearing in mind the various ILO missions that had visited the country over the years and the seriousness of the problems, it expresses the hope that it will be in a position to note significant progress in the near future in both the legislation and practice. The Committee requests the Government to indicate any developments in this regard.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the comments on the application of the Convention made by the International Trade Union Confederation (ITUC), the Confederation of Workers Rerum Novarum (CTRN), the Petroleum, Chemical and Similar Workers’ Union (SITRAPEQUIA) and the Costa Rica Union of Chambers and Associations of Private Enterprises (UCCAEP), which relate mainly to issues that are already under examination. The Committee noted in its previous observations the report of the high-level mission which visited the country from 2 to 6 October 2006. The Committee notes Cases Nos 2490 and 2518 examined by the Committee on Freedom of Association at its November 2007 meeting, which confirm the dismissals of a large number of trade unionists, as well as a number of rulings of the Supreme Court which had found that certain clauses of collective agreements in public sector institutions or enterprises were unconstitutional.

The Committee recalls that the problems relating to the application of the Convention which it raised in its previous observation were as follows:

–      the slowness and ineffectiveness of recourse procedures and compensation in the event of anti-union acts (according to the high-level mission, the slowness of procedures in cases of anti-union discrimination results in a period of not less than four years to obtain a final ruling);

–      the subjection of collective bargaining in the public sector to criteria of proportionality and rationality in accordance with the case law of the Constitutional Chamber of the Supreme Court of Justice which has declared unconstitutional a considerable number of clauses of collective agreements in the public sector at the instigation of the public authorities (the Ombudsperson, the Office of the Public Prosecutor) or of a political party; and

–      the enormous disproportion in the private sector between the number of collective agreements concluded with trade unions (much lower) and the number of direct agreements concluded with non-unionized workers (the Committee previously called for an independent investigation into this matter, which took place and the relevant report has been prepared).

The Committee notes the comments made by the UCCAEP on the application of the Convention in which it refers to the comprehensive standards applicable with regard to protection against anti-union discrimination and points out that the judicial authority may even order the reinstatement of a worker dismissed as a result of anti-union unfair practice. The UCCAEP indicates that the current legal framework allows non-member workers to appoint, by means of a majority election, a Permanent Workers’ Committee to represent their interests against the employer (a committee which may, where appropriate, coexist with a trade union in the same enterprise), and that no form of association of workers other than the trade union may interfere in matters relating to collective bargaining, trade union functions or aims.

The ITUC comments that the administrative procedures against anti-union dismissals (which are subsequently referred to the judicial authority) are complex and ineffective and may take several years (in fact, the amparo appeal for enforcement of constitutional rights is abused in anti-union discrimination procedures); furthermore, employers are not obliged under any legal mechanism to comply with a reinstatement order. The ITUC confirms the Government’s indication that the draft Act to reform labour procedures is being examined by a tripartite committee. The ITUC indicates that in the private sector trade unions are practically non-existent and that those which do exist are permanently submitting complaints to the Labour Inspectorate of trade union persecution. According to the ITUC, the Ministry of Labour and Social Security promotes direct agreements with non-unionized workers through publications. There are special problems with regard to the application of the Convention and anti-union discrimination in export processing zones, pineapple enterprises and banana enterprises. The Committee points out that the recent comments of the ITUC concerning the very low number of trade unions in the private sector will be examined in 2009 in the framework of the examination of the application of Convention No. 87.

The SITRAPEQUIA and the CTRN emphasize the gravity of the problem of collective bargaining in the public sector and the constraints placed on public employers by the Committee on Negotiation Policy.

The CTRN and the country’s other confederations hold the view that the long delay in the adoption of draft legislative reforms and the ratification of Conventions Nos 151 and 154 demonstrate the lack of interest in moving forward.

The Committee observes that the Government refers to the statements made in its previous reports to the effect that: (1) the Government possesses the will and commitment to resolve the problems raised by the Committee of Experts; (2) it has requested the ILO’s technical assistance and trusts that this will enable it to overcome the problems raised; (3) the Government’s efforts (many of them supported by tripartite agreement) relating to these problems have included the submission of several legislative proposals to the Legislative Assembly and their reconsideration: a draft constitutional amendment to article 192, a Bill on collective bargaining in the public sector, and the addition of subsection 5 to section 112 of the General Act on Pubic Administration (the three initiatives are intended to strengthen collective bargaining in the public sector); a draft amendment to the chapter of the Labour Code on freedom of association; approval of ILO Conventions Nos 151 and 154; draft texts to revise various sections of the Labour Code, Act No. 2 of 26 August 1943, and sections 10, 15, 16, 17 and 18 of Legislative Decree No. 832 of 4 November 1949 and its amendments; a draft Act to reform labour procedures (aimed at the elimination of delays and introducing the principle of hearings, and the establishment of summary procedures for cases of anti-union discrimination); (4) the Government’s efforts have also included other types of initiatives in legal actions of unconstitutionality brought in order to annul specific clauses in the agreements; and the reinforcement of alternative dispute settlement procedures through the Centre for Alternative Settlement of the Ministry of Labour and Social Security, which increased the number of persons dealt with in 2005 to 3,329. The Government indicated that in 2005 complaints of anti-union discrimination related to 38 cases; (5) the current Government has the will to push forward draft legislation to resolve pending problems and has maintained contact with the Executive, including the Ministry of the Presidency, and the Legislative, (including deputies from various parties, as well as the leaders of the principal opposition party which also supports the reforms sought by the ILO), for the re-examination of the draft texts in question. The Government states that it has sent reports to the judiciary forwarding the observations and positions of the Committee of Experts. The Government lays emphasis on the follow-up meetings held by the Minister of Labour and Social Security, on occasions with the technical assistance of the ILO subregional office, with this assistance including the gathering of information on matters relating to Conventions Nos 151 and 154 on collective bargaining. The Government adds that it held a meeting with numerous representatives of all the sectors involved (the authorities, civil society, etc.) to analyse and seek consensus for the draft legislation to reform labour procedures which is awaiting the opinion of the Legal Affairs Commission of the Legislative Assembly.

Additionally, the Committee notes the statements made by the Government to the effect that:

–      there has been a substantial change in the case law given that, the Second Chamber of the Supreme Court of Justice recently declared in a ruling (by a vote of six judges to one) that: (1) the conclusion cannot be drawn that the Constitutional Chamber has prohibited collective agreements in the public sector and it found that collective agreements concerning public employees – whose relations are governed by the labour laws, even though they belong to the public sector – and servants were not unconstitutional (in particular, the collective agreement relating to the case concerned, which does not constitute excessive privileges for workers despite having been presented by the Ombudsperson for alleged unconstitutionality); (2) Convention No. 98 supersedes domestic law; (3) the regulations in force on collective bargaining in the public sector are an important legal matter. According to the Government, in view of the above, this ruling of the Supreme Court could prevent new contestations of clauses of collective agreements in the public sector;

–      the Government has carried out a serious of actions (mentioned above) in relation to all the problems raised by the Committee of Experts, which shows the political commitment to resolving those problems; training and information activities aimed at the leaders of the three authorities of the State (legislative, executive and judicial) have been carried out, such as the forum on the dissemination of the right to collective bargaining in the public sector (March 2008) which benefited from technical assistance from the ILO and the participation of representatives at the highest level of the three authorities of the State, as well as the social partners; training programmes for judges and the social dialogue forum (organized by the Second Chamber of the Supreme Court of Justice);

–      the Higher Labour Council (a tripartite body) has revived a special committee for the examination and analysis of the draft text reforming labour procedures which is intended to overcome the problem of the slowness of procedures in the event of anti-union acts and strengthen the right to collective bargaining in the public sector; during this financial year, the technical assistance of the ILO has been sought to ensure conformity with the provisions of Conventions Nos 87 and 98 and the special committee has been provided with the report of the ILO technical assistance on the draft;

–      the slowness of justice is being tackled by the judicial authority and consequently, greater human resources have been allocated and the processes have been sped up in several ways (introduction of hearings, etc.), new courts of minor jurisdiction have been created in various areas of the country; in 2007, the judicial authority concluded 24,501 cases (despite having received 21,897 cases during that year); furthermore, on 12 March 2008, the Conciliation Centre under the judiciary, which works preventatively, was created; the Government is continuing in turn to develop alternative means for the settlement of disputes and the judiciary is continuing its programme to tackle judicial delays aimed at clearing the backlog of the judicial bodies by calling on supernumerary judges;

–      there is a plan for the implementation of the recommendations made in the report of the high-level mission which visited the country in 2006.

The Committee requests the Government to indicate any developments relating to the draft texts which have been before the Legislative Assembly for a number of years and the aim of achieving greater efficiency and speed in the procedures for protection against anti-union discrimination and collective bargaining in the public sector, as well as on any developments relating to the case law of the Supreme Court of Justice on this matter.

The Committee continues to consider that the situation of trade union rights is precarious. The Committee welcomes the desire shown by the current Government to push forward draft legislation, in many cases with tripartite support for a number of years, with a view to complying with the Convention and giving effect to the Committee’s comments. The Committee expresses its very firm hope that the various draft texts that are currently under examination will be adopted in the very near future and that they will be in full conformity with the Convention. The Committee requests the Government to indicate the progress made in this respect and hopes that an improvement in the application of the rights and guarantees set forth in the Convention will be the outcome of this political will.

With regard to the matter of the negotiation of direct agreements with non-unionized workers, the Committee recalls that, according to the study carried out by the independent expert “according to the statistics provided by the Ministry of Labour and Social Security, there are now in force 74 direct agreements, while only 13 collective agreements remain in force”; “it is also an established fact, as well as being clear and evident, that it is the latter (employers) who propose, defend and claim them and who, in particular, take the initiative for their conclusion”. The study also refers to the phenomenon of intervention by employers in the election of standing committees, including the imposition of candidates, public disqualification or vetoes, etc.; ballots are not secret and electors can be intimidated. According to the mission report “although it is not correct to say that in all cases the election of the members of standing committees is a result of processes that are fixed and not authentic, it can be said that the very conception of standing committees and the long-standing practices for their establishment clearly lack the elementary guarantees of democratic authenticity …, and the indispensable conditions of independence and representativeness are not present”. The expert’s report indicates that standing committees lack the resources and the capacity to engage in a dialogue with employers that ensures a certain balance in negotiations. In general, the expert’s study shows that standing committees have been used to prevent the establishment of trade union organizations or to impede their activities.

In its previous observation, the Committee noted these conclusions with concern and drew the Government’s attention to the importance of these matters being submitted for tripartite examination so as to remedy the existing disproportion between the number of collective agreements and of direct agreements with non-unionized workers and so as to facilitate the formulation of the legal and other means necessary to prevent standing committees and direct agreements from having an anti-union impact in practice, and also from being established where there is already a trade union organization. The Committee recalls once again that, under the terms of Article 2 of the Convention, the State is under the obligation to guarantee adequate protection against any acts of interference by employers in workers’ organizations, and that Article 4 of the Convention enshrines the principle of the promotion of collective bargaining between workers’ organizations and employers or employers’ organizations.

The Committee notes that the Government indicates that: (1) collective bargaining is recognized by the Constitution and is therefore granted privileged protection under the national legal system; in fact, in accordance with an administrative instruction of 4 May 1991, if it is found that a company has a union that is recognized for bargaining purposes, the General Labour Inspectorate shall reject any direct agreements immediately so as not to hinder the negotiation of a collective agreement; (2) the independent expert refers to facts which suggest a contradiction with the commitment provided for in Article 4 of the Convention referring to promoting the full development and utilization of machinery for voluntary negotiation between employers and workers; for this reason, given that the report in question was received recently and taking into account the Committee of Experts’ recommendation to the Government concerning the importance of this document together with its conclusions being submitted for tripartite examination so as to remedy the existing imbalance between the number of collective agreements and direct agreements, the Ministry of Labour and Social Security has sent a complete copy of the study in question to each of the members of the Higher Labour Council; (3) in this regard, the Government undertakes to keep the Committee informed of any progress made by the Council in the analysis of the expert’s report, which includes finding a satisfactory solution to the situation by means of genuine social dialogue and calling upon any technical assistance which the ILO may be able to offer on this matter, to prevent standing committees and direct agreements from having the anti-union impact in practice referred to by the independent expert in his report; (4) the matter is complex and the Government hopes to be able to provide, in the near future, a balanced proposal which offers a satisfactory solution to the situation referred to by the independent expert.

The Committee requests the Government to provide information on the tripartite evaluation of the problem of direct agreements with non-unionized workers, undertaken in the light of the expert’s report, as well as any satisfactory solution proposed.

The Committee also requests the Government to provide its comments on the recent communication of the CTRN dated 12 September 2008.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the report and other communications from the Government and the discussion in the Committee on the Application of Standards in June 2006 on the application of the Convention. The Committee also notes the Government’s reply to the comments on the application of the Convention made by the International Trade Union Confederation (ITUC) and the Union of Public and Private Enterprise Employees (SITEPP), which relate mainly to issues that are already under examination. The Committee noted in its previous observation the report of the High-level Mission which visited the country from 2 to 6 October 2006. The Committee further notes Cases Nos 2490 and 2518 examined by the Committee on Freedom of Association at its November 2007 meeting, which confirm a high number of dismissals of trade unionists, as well as the new rulings of the Supreme Court which find that certain clauses of collective agreements in public sector institutions or enterprises are unconstitutional.

The Committee recalls that the problems relating to the application of the Convention which it raised in its previous observation were as follows:

–           the slowness and ineffectiveness of recourse procedures and compensation in the event of anti-union acts (according to the High-level Mission, the slowness of procedures in cases of anti-union discrimination results in a period of not less than four years to obtain a final ruling);

–           restrictions on the right to collective bargaining in the public sector as a result of various rulings by the Constitutional Chamber of the Supreme Court; according to the SITEPP, the judiciary has maintained the stance that there is no right to collective bargaining in the public sector in a collective dispute against the Ministry of Education; however, the Government has emphasized in its communications that the very fact that the judiciary has found to be unconstitutional certain clauses of collective agreements in the public sector shows that the right to collective bargaining is recognized;

–           the subjection of collective bargaining in the public sector to criteria of proportionality and rationality in accordance with the case law of the Constitutional Chamber, which has declared unconstitutional a considerable number of clauses of collective agreements in the public sector at the instigation of the public authorities (the Ombudsperson, the Office of the Public Prosecutor) or of a political party;

–           the enormous imbalance in the private sector between the number of collective agreements concluded with trade unions (much lower) and the number of direct agreements concluded with non-unionized workers (the Committee previously called for an independent investigation into this matter).

The Committee notes that the Government refers to the statements made in its previous report to the effect that: (1) the Government possesses the will and commitment to resolve the problems raised by the Committee of Experts; (2) it has requested the ILO’s technical assistance and trusts that this will enable it to overcome the problems raised; (3) the Government’s efforts (many of them supported by tripartite agreement) relating to these problems have included the submission of several legislative proposals to the Legislative Assembly and their reactivation: a draft constitutional amendment to article 192, a Bill on collective bargaining in the public sector, and the addition of subsection 5 to section 112 of the General Act on Public Administration (the three initiatives are intended to strengthen collective bargaining in the public sector); a draft amendment to the chapter of the Labour Code on freedom of association; approval of ILO Conventions Nos 151 and 154; draft texts to revise various sections of the Labour Code, Act No. 2 of 26 August 1943, and sections 10, 15, 16, 17 and 18 of Legislative Decree No. 832 of 4 November 1949 and its amendments; an Act to reform labour procedures (aimed at the elimination of delays and introducing the principle of hearings, and the establishment of summary procedures for cases of anti-union discrimination); (4) the Government’s efforts have also included other types of initiatives, such as the intervention of third parties to defend collective agreements (coadyuvancia) in legal actions of unconstitutionality brought in order to annul specific clauses in the agreements; and the reinforcement of alternative dispute settlement procedures through the Centre for Alternative Settlement of the Ministry of Labour, which increased the number of persons dealt with in 2005 to 3,329. The Government indicated that in 2005 complaints against anti-union discrimination related to 38 cases.

The Committee notes the Government’s indication in its report that the unionization rate rose from 4.2 per cent in 2005 to 4.6 per cent in 2006 in the private sector, while the rate is 9.3 per cent in the public sector. There are currently 244 active trade union organizations, made up of 228 unions, 11 federations and five confederations. With regard to the Committee’s concern at the persistence of significant problems in relation to the application of the Convention, the Government states that it does not share this concern, since many of the complaints presented to the Committee on Freedom of Association and the High-level Mission which visited the country in October 2006 are unknown to the Government, are unfounded or have been resolved through conciliation. The Committee notes that the Government understands its concern at the lack of political will by previous governments to push forward draft legislation to resolve pending problems. The current Government has the will to do so and has maintained contact with the Executive, including the Ministry of the Presidency, and the Legislative, including deputies from various parties, as well as the leaders of the principal opposition party which also supports the reforms sought by the ILO, for the reactivation of the draft texts in question. The Government states that it has sent reports to the judiciary forwarding the observations and positions of the Committee of Experts. The Government lays emphasis on the follow-up meetings held by the Minister of Labour and Social Security, on occasions with the technical assistance of the ILO Subregional Office, with this assistance including the gathering of information on matters relating to Conventions Nos 151 and 154 on collective bargaining. The Government adds that it held a meeting with numerous representatives of all the sectors involved (the authorities, civil society, etc.) to analyse and seek consensus for the draft legislation to reform labour procedures which is awaiting the opinion of the Legal Affairs Commission of the Legislative Assembly.

The Committee further notes that the Government formally requested the technical assistance of the ILO Subregional Office in July 2007 in the context of the follow-up to the recommendations of the High-level Mission. In accordance with the proposal of the Mission, the advice of the Subregional Office is focused on promoting an internal and continuous process of training, promotional and information activities for political officials and the social partners to improve understanding of bargaining, disputes and legislative provisions, as well as the higher values involved. During the fourth quarter of 2007, it is planned to hold a seminar on technical issues and to exchange experiences with a view to promoting social dialogue in a tripartite context, with a view to benefiting from international cooperation in seeking solutions to problems relating to the application of the Convention. As a result of all of the measures described, the Government hopes that solutions will be found to the pending problems. The Committee notes the emphasis placed by the Government on the fact that some of those problems broadly coincide with the recommendations for Costa Rica contained in the White Paper formulated by the Central American Deputy Ministers of Labour, which includes voluntary undertakings. A plan has also been developed for the implementation of the recommendations with the participation of the judiciary covering the period 2007–09, on which an evaluation is to be carried out every six months.

With regard to the problem of collective bargaining in the private sector, in view of the existence of more direct agreements than collective agreements, in relation to which the Committee requested an independent investigation, the Committee notes the Government’s indication that the administrative instruction of 4 May 1991 requires the labour inspectorate to ascertain that there is no union recognized for bargaining in the enterprise concerned before a direct agreement with non-unionized workers is deposited. Nevertheless, the Government adds that in August 2006 a total of 67 collective agreements were in force in the public sector and 13 in the private sector, while the number of direct agreements was 69.

The Committee notes the Government’s statement that it gave its consent for an independent technical expert designated by the ILO to investigate the issue and is grateful that the Government gave the expert every facility. In the view of the High-level Mission of 2006, only a convincing and shared assessment of the phenomenon will make it possible to formulate public policies, in terms of legislation, promotion and information, designed to overcome the negative implications. The Government collaborated with all the assistance and logistical and technical support required by the expert, including the planning of the meetings requested. The Committee appreciates that, as indicated in the study of the independent expert, all those interviewed gave their kind support.

The Committee notes that, according to the study carried out by the independent expert, “according to the statistics provided by the Ministry of Labour and Social Security, there are now in force 74 direct agreements, while only 13 collective agreements remain in force”; “it is also an established fact, as well as being clear and evident, that it is the latter (employers) who propose, defend and claim them and who, in particular, take the initiative for their conclusion”. The study also refers to the phenomenon of intervention by employers in the election of standing committees, including the imposition of candidates, public disqualification or vetoes, etc.; ballots are not secret and electors can be intimidated. According to the mission report, “although it is not correct to say that in all cases the election of the members of standing committees is a result of processes that are fixed and not authentic, which would not be in line with the truth, it can be said that the very conception of standing committees and the practices universally adopted for their establishment clearly lack the elementary guarantees of democratic authenticity …, and the indispensable conditions of independence and representativeness are not present”. The expert’s report indicates that standing committees lack resources and the capacity to maintain a dialogue with employers that ensures a certain balance in negotiations. In general, the expert’s study shows that standing committees have been used to prevent the establishment of trade union organizations or to impede their activities.

The Committee notes these conclusions with concern and draws the Government’s attention to the importance of these matters being submitted for tripartite examination so as to remedy the existing imbalance between the number of collective agreements and of direct agreements with non-unionized workers and so as to facilitate the formulation of the legal and other means necessary to prevent standing committees and direct agreements from having an anti-union impact in practice, and also from being established where there is already a trade union organization. The Committee recalls once again that, under the terms of Article 2 of the Convention, the State is under the obligation to guarantee adequate protection against any acts of interference by employers in workers’ organizations, and that Article 4 of the Convention enshrines the principle of the promotion of collective bargaining between workers’ organizations and employers or employers’ organizations.

The Committee continues to consider that the situation of trade union rights remains delicate. The Committee welcomes the desire shown by the current Government to push forward draft legislation, in many cases with tripartite support, with a view to complying with the Convention and giving effect to the Committee’s comments. The Committee hopes that the various draft texts that are currently under examination will be adopted in the very near future and that they will be fully in conformity with the Convention. The Committee requests the Government to keep it informed in this respect and hopes that an improvement in the application of the rights and guarantees set forth in the Convention will be the outcome of this political will.

[The Government is asked to reply in detail to the present comments in 2008.]

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

The Committee takes note of the Government’s report, the discussion held on the application of the Convention in the Conference Committee in June 2006, the report of the High-Level Mission to Costa Rica undertaken from 2 to 6 October 2006, as well as the communications transmitted by the Government following the Mission. The Committee notes the comments submitted by the ICFTU on 12 July 2006, and the Government’s reply. The Committee observes that the Government’s response refers solely to the legislative issues raised by the ICFTU without addressing the latter’s comments regarding violations of the Convention in 2005. The Committee requests the Government to transmit its observations on the alleged violations. Further noting the comments of the Union of Public and Private Enterprise Employees (SITEPP), dated 3 October 2006 (and received on 20 October 2006), the Committee requests the Government to submit its observations thereon.

The Committee recalls that in its previous observation it raised the following points concerning the application of the Convention:

–           the slowness and ineffectiveness of recourse procedures in the event of anti-union acts;

–           restrictions on the right to collective bargaining in the public sector as a result of various rulings by the Constitutional Chamber of the Supreme Court;

–           the subjection of collective bargaining in the public sector to criteria of proportionality and rationality in accordance with the case law of the Constitutional Chamber, which has declared unconstitutional certain clauses of collective agreements in the public sector at the request of the public authorities (the Ombudsperson, the Office of the Public Prosecutor) or of a political party;

–           the enormous imbalance in the private sector between the number of collective agreements concluded by trade unions and the number of direct agreements concluded by non-unionized workers (the Committee had previously called for an independent investigation into this matter).

The Committee takes note of the Government’s statements that: (1) the Government possesses the will and commitment to resolve the problems raised by the Committee of Experts; (2) it had requested the ILO’s technical assistance in the hope that this would allow for resolution of the problems mentioned; (3) the efforts of the Government (many of which were tripartite) regarding these problems included the presentation of several legislative proposals to the Legislative Assembly and their reactivation: a draft constitutional amendment concerning article 192, a bill on collective bargaining in the public sector, and the addition of paragraph 5 to section 12 of the General Law on Public Administration (the three initiatives are intended to strengthen collective bargaining in the public sector); a draft amendment to the chapter on freedom of association in the Labour Code; parliamentary approval of ILO Conventions Nos. 151 and 154; the revision of various sections of the Labour Code, Act No. 2 of 26 October 1943, and sections 10, 15, 16, 17, and 18 of Decree No. 832 of 4 November 1949 and its amendments; a law concerning the reform of the working procedures (aimed at the elimination of delays and introducing the principle of hearings, and the establishment of summary procedures for cases of anti-union discrimination); (4) the Government’s efforts also include other types of initiatives, such as the intervention of third parties to defend collective agreements (coadyuvancia) in legal actions of unconstitutionality brought in order to annul specific clauses in the said agreements; and the reinforcement of alternative modes of dispute settlement through the Centre for Alternative Settlement of the Ministry of Labour, which has increased the number of persons dealt with in 2005 to 3,329.

The Committee notes that the Government states that the Administrative Directive of 4 May 1991 requires the labour inspectorate to certify that the enterprise concerned does not have a union recognized for bargaining purposes before registering direct agreements with non-unionized workers; however, the Government adds that there were 67 collective agreements in force in the public sector in August 2006 and 13 in the private sector, whereas the number of direct agreements was 69.

The Committee notes the statistics furnished by the Government relating to complaints of anti-union discrimination and observes that, in 2005, the statistics indicate 38 cases.

The Committee stresses that according to the conclusions and the documentation of the High-Level Mission: (1) the problem of the slowness of the procedures, which in cases of anti-union acts translates to a period of at least four years before a final judgement is obtained, is addressed by the proposed reforms to the working procedures submitted to the General Assembly and a draft partial amendment to the Labour Code that strengthens protection against anti-union acts; (2) the problem of the increased number of direct agreements with non-unionized workers in relation to the number of collective agreements will be addressed by an independent expert appointed by the ILO who will undertake an independent inquiry in Costa Rica in February 2007; (3) the problems relating to collective bargaining will be addressed through amendments to the Constitution and the General Law on Public Administration, a bill on collective bargaining in the public sector, and through proposals for parliamentary approval and ratification of Conventions Nos. 151 and 154; (4) the pending proposals will be examined by the Higher Labour Council (a tripartite body for dialogue) with the objective of studying them and providing them with new impetus, through means obtained by consensus; and (5) the Higher Labour Council had asked the Legislative Assembly for the creation of a joint commission, with the technical assistance of the ILO, in order to develop the plan for the reform of the working procedures.

The Committee notes on the other hand that, as concerns the possibility of judicial annulment of clauses in collective agreements in the public sector on the basis of criteria of rationality and proportionality, the Mission explained the principles of the ILO to the different authorities involved in the complaints filed for unconstitutionality regarding these collective agreement clauses. The Committee notes that the relation of votes of the judges of the Constitutional Chamber annulling the clauses of the collective agreements is in development, having passed by a vote by 6 to 1, and 4 to 3, and thus, according to the Government, out of a total of 1,828 clauses, 122 had been contested (6.67 per cent) out of which only 15 were invalidated (0.82 per cent), 31 were deemed constitutional (1.69 per cent) and 76 were unresolved and still pending; according to the Government, the contested clauses precede the decree of 21 May 2001 regulating collective bargaining in the public sector as well as the adequate consideration of the jurisprudence of the Constitutional Chamber, which will obviate new contestations in the future. The Government stresses that when the Constitutional Chamber annulled specific clauses in a collective agreement, it implicitly accepted their constitutionality; a process of collective bargaining within the Ministry of Labour and the committee on politics for collective bargaining envisaged in the decree of 2001 had authorized negotiations with associations of civil servants in the Ministry. The Committee notes that, according to the information provided by the Government, the number of unions, federations and confederations is, respectively, 767, 52, and 9; and that the rate of unionization was over 4.2 per cent in 2005, and at 4.6 per cent in 2006.

The Committee underlines nevertheless that the trade union rights situation remains sensitive. The cases submitted to the Committee on Freedom of Association and the numerous complaints to the Mission demonstrate the persistence of important problems regarding the application of the Convention in matters of anti-union discrimination and collective bargaining, which have given rise to discussions in the Conference Committee on several occasions. The Committee understands the difficulties of employers’ and workers’ organizations, faced with a lack of political will on the part of preceding governments whose proposals for legal reform were inadequate or lacked sufficient support, in spite of the fact that, in several cases, they were following tripartite agreements. The Committee emphasizes the dangers for the system of labour relations and collective bargaining of the authorities’ failure to produce a set of agreements reached through tripartite consensus.

The Committee notes the Government’s contacts with certain members of the Legislative Assembly who belong to the largest opposition party and who, according to the report of the High-level Mission, also support the reforms requested by the ILO. The Committee also notes that the bill to reform the working procedures is at the stage of analysis by the Committee on Legal Affairs, and that it includes a process for reactivating other legal reforms.

The Committee expresses the hope that the various legal reforms currently in progress will be adopted in the very near future, and will be in conformity with the Convention. The Committee requests the Government to keep it informed in this regard, and hopes that the political will unequivocally expressed following the High-level Mission will lead to the fuller application of the rights and guarantees contained in the Convention.

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

The Committee notes the Government’s report and its reply to the comments made by the International Confederation of Free Trade Unions (ICFTU) and the Workers’ Confederation Rerum Novarum (CTRN). The Committee notes the discussion held in the Conference Committee in 2004 on the application of the Convention.

The Committee notes that the problems at issue are the following: (1) the slowness and ineffectiveness of recourse procedures in the event of anti-union acts; (2) restrictions on the right to collective bargaining in the public sector as a result of various rulings by the Constitutional Chamber of the Supreme Court; (3) the subjection of collective bargaining in the public sector to criteria of proportionality and rationality in accordance with the case law of the Constitutional Chamber, which has declared unconstitutional certain clauses of collective agreements in the public sector (according to the ICFTU and the CTRN, the problem is now affecting other collective agreements); and (4) the enormous imbalance in the private sector between the number of collective agreements concluded by trade union organizations (12, covering 7,200 workers) and the direct accords concluded by non-unionized workers (130) (the Committee previously called for an investigation to be undertaken of this matter by independent persons).

The Committee notes that an advisory mission was undertaken in April 2005 on the problems raised and that the mission interviewed members of the legislative, executive and judicial authorities with a view to encouraging reforms to allow full effect to be given to the Convention and the establishment of a process of dialogue (called for by the Conference Committee) with the high-level public authorities and the social partners for this purpose. The Committee noted in its previous observation that the Government was in agreement with the changes requested by the Committee of Experts and it observes that the Government is continuing to encourage measures to achieve compliance with its recommendations. The Committee notes that the mission was informed that an opposition political party is opposed to reforms related to the recommendations made by the ILO concerning collective bargaining in the public sector and the other matters raised.

The Committee notes that the comments of the ICFTU and the CTRN relate to matters which have already been raised, as well as to other problems, among which emphasis may be placed on the following: delays in labour procedures and the complexity of administrative processes to obtain the reinstatement of trade union members (the reinstatement of workers is reported to take an average of three years); the lack of any real will by the authorities to secure the approval of the draft legislation relating to the Convention; little effect is given in practice to the regulations respecting collective bargaining in the public sector (many categories of public workers and employees have been denied this right), and when they are applied, there is interference by a body composed of ministers established under these regulations; there are cases of the dismissal of workers who establish trade unions, also in export processing zones, and the Constitutional Chamber is continuing to annul provisions of collective agreements in the public sector, at the request of the Ombudsperson and the Office of the Public Prosecutor, particularly on the grounds that they go beyond certain minimum standards, especially in the case of clauses of an economic nature or relating to trade union leave; there is therefore great legal insecurity; and solidarist associations are being used to undermine trade unions.

The Committee notes the Government’s statements that the judicial authorities have forwarded to the executive authorities a Bill to reform labour procedures for its submission to the Legislative Assembly, and that the Bill was formulated with the technical assistance of the ILO and takes into account the recommendations of the Committee on Freedom of Association. The Bill is intended to address the causes of judicial delays by revising or simplifying previous judicial procedures. With certain exceptions, it has the agreement of the social partners. The Bill provides protection against acts of anti-union discrimination and establishes a special process for the protection of persons with a special protected status, including workers covered by trade union protection. It introduces the principle of oral submissions, which should speed up the procedures. The Committee notes this information with interest. The Government also indicates that the Ministry of Labour has introduced alternative means for the settlement of disputes. According to the Government, the efforts made have resulted in a decrease in the number of cases reaching the courts. On the other hand, with reference to the comments by trade union organizations that collective bargaining practically does not exist in the private sector, the Government states that this is a subjective and an unfounded view. With regard to the promotion of direct accords with non-unionized workers, the Government indicates that this system has a basis in law and is freely chosen by the parties in accordance with legal regulations, even though collective bargaining is recognized by the Constitution and is therefore ranked higher. Furthermore, an administrative instruction calls upon the labour inspectorate to reject a direct accord where there is a recognized trade union. The Ministry of Labour has provided support to trade union organizations in the form of assistance with the legal action (before the courts) taken against certain clauses in collective agreements in the public sector. (The Government has attached a ruling of the Constitutional Court rejecting an appeal to find a clause in a collective agreement unconstitutional.) The Government recalls that the scope of application of the regulations on collective bargaining are in conformity with the Convention and that the legislation severely sanctions any excesses which may be committed by solidarist associations. Finally, the Government emphasizes the consequences of the separation of powers in the State and the limits that this imposes on Government action.

The Committee also notes the Government’s reference to the draft texts that it had promoted in relation to the problems at issue, including draft texts for the ratification of Conventions Nos. 151 and 154, the Bill for the negotiation of collective agreements in the public sector and the addition of a fifth point to the General Act on public administration, a Bill to amend certain provisions of the Labour Code, a draft constitutional reform to guarantee the right to collective bargaining in the public sector at the constitutional level and the adoption of a Decree in May 2001 to resolve this problem in the public sector.

The Committee notes that the problems at issue have persisted for many years and that most of the draft legislative texts referred to by the Government have been under examination for several years. The Committee hopes that the competent authorities will find solutions as soon as possible to all the problems raised and that it will be able to note progress in law and practice in the near future. The Committee requests the Government to provide information in this connection and for an independent investigation to be held into the high number of direct accords with non-unionized workers. It also requests the Government to provide statistics on complaints of anti-union discrimination and on the number of collective agreements in the public and private sectors, with an indication of their respective coverage.

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

The Committee takes note of the Government’s report and of an extensive reply by the Government to the comments submitted by the International Confederation of Free Trade Unions (ICFTU) and the Workers’ Confederation Rerum Novarum (CTRN). For the most part the above organizations raised matters already dealt with by the Committee in its observation of 2003. Their comments will be examined together with the Government’s reply in 2005 in the context of the regular reporting cycle for the application of this Convention.

The Committee notes the discussion on the application of the Convention that took place in the Conference Committee in June 2004 and particularly the following conclusions: (1) the Government is in agreement with the changes requested by the Committee of Experts; (2) the request by the Government representative for a dialogue process at the ILO headquarters with the participation of the legislative and judicial authorities as well as the Ombudsman, in order to find a solution to the problems through dialogue with ILO experts and officials; and (3) the hope expressed by the Conference Committee that the process of social dialogue will facilitate the solution of the questions raised by the Committee of Experts.

The Committee observes that the envisaged dialogue meeting did not take place so as to discuss the following problems: (1) slow and ineffectual procedures for penalties and redress in the event of anti-union acts, and drafting of a Bill, with tripartite consensus, which provides for a rapid procedure; (2) restrictions on the right to collective bargaining in the public sector under various decisions of the Constitutional Chamber of the Supreme Court; drafting of various Bills including a constitutional reform Bill to overcome this problem; and adoption of a Decree in May 2001 to address the problem; (3) requirement of proportionality and rationality in public sector collective bargaining; the Constitutional Chamber has ruled that several clauses of a public sector collective agreement are unconstitutional and according to the latest comments by the ICFTU and the CTRN the problem is spreading to other collective agreements; and (4) the huge disproportion in the private sector between the number of collective agreements concluded with trade unions - 12, with a coverage of 7,200 workers - and the number of direct arrangements concluded by non-unionized workers - 130; the Committee of Experts had requested an independent inquiry into this matter.

The Committee notes that the Government has requested a technical assistance mission for March 2005 and hopes that at its next meeting the dialogue process at the ILO headquarters requested by the Government will take place.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report and the discussion which took place in the Conference Committee in June 2002. The Committee also notes the comments on the application of the Convention made by the Public and Private Employees’ Association (ANEP) on 26 November 2001. The Committee further notes the comments made recently by the Rerum Novarum Confederation of Workers and requests the Government to provide its comments in response.

1.  Slowness and ineffectiveness of recourse procedures
  in the event of anti-union acts

In its previous comments, the Committee noted the slowness of the judicial procedures in the event of cases of anti-union persecution and of those applicable in cases of breaches of the labour legislation giving rise to the imposition of penalties, which may last for one or more years, as well as, in contrast, the Government’s statement that the prior administrative procedure lasts for a period of two months as established by the Constitutional Chamber. The Committee noted that the Government, workers and employers agree upon the need for proceedings to be rapid and, within the framework of a tripartite consensus, the Executive Authority submitted to the Legislative Assembly a Bill to amend various provisions of the Labour Code (file No. 14676). The Committee noted that the Bill addresses very fully acts of anti-union discrimination and interference (dismissals, transfers, blacklists, etc.) and provides for very rapid procedures prior to dismissal, which have to be fulfilled by the employer, and summary proceedings before the judicial authorities, with compulsory time limits to ascertain the reasons for the dismissal and severe penalties for refusal to reinstate the worker where justified grounds are not proven.

The Committee notes that in its report the Government refers to recent important measures to facilitate labour proceedings and attaches statistics on the progress achieved. The Government adds that it has forwarded the comments made by the Committee of Experts to the President of the Supreme Court of Justice for analysis and consideration. Nevertheless, the Committee emphasizes that the information and statistics provided by the Government are of a general nature and do not refer specifically to judicial procedures in relation to anti-trade union discrimination. The Committee also notes that the Bill (file No. 14676) referred to in the previous paragraph is before the Permanent Committee on Social Affairs of the Legislative Assembly. Bearing in mind the importance of the problem of the slowness of judicial procedures in cases of acts of anti-union discrimination, the Committee once again expresses the firm hope that the above Bill (file No. 14676) will be adopted in the near future and requests the Government to keep it informed on this matter.

2.  Restrictions on the right to collective bargaining in the public sector,   including for employees who are not engaged in the administration
  of the State, as a result of various court rulings

In its previous observation, the Committee noted that, according to the report of the technical assistance mission which took place in September 2001, there are good grounds for believing, including the opinion expressed by the President of the Constitutional Chamber, that the Chamber’s rulings Nos. 2000-04453 of 24 May 2000 and 2000-7730 of 30 August 2000, as well as the Chamber’s vote of clarification (No. 2000-09690) of 1 November 2000, totally exclude collective bargaining for all public sector employees with a statutory employment status, including those working in public or commercial enterprises or in independent public institutions. The Committee noted in the context of this case law the recent Decree No. 29576-MTSS of 31 May 2000 (regulations for the negotiation of collective agreements in the public sector), which only excludes from this right public servants of the highest level in the public sector, and that the above regulations, in accordance with the recommendations of the technical assistance provided by the ILO, include certain substantial improvements in relation to the 1993 regulations (for example, abolition of the approval commission, a sufficiently broad scope of application in terms of the persons covered, limitations on bargaining only for the representatives of public bodies) and which were the subject of certain comments by the technical assistance mission in September 2001 with a view to developing future legislation, in which emphasis was placed on certain problems and issues.

Nevertheless, the Committee emphasized in its previous observation that the technical assistance mission, commenting on the above rulings of the Constitutional Chamber, "emphasizes the confusion, uncertainty and even legal insecurity existing with regard to the scope of the right to collective bargaining in the public sector, in terms of the employees and public servants covered (according to the rulings, the administrations of public institutions or enterprises are responsible for determining which employees have statutory status, and their decision may in turn be appealed to the judicial authorities) and in parallel concerning the validity and effect of certain collective agreements that are in force, as well as the constitutionality of the large number (according to the Government) of de facto negotiations existing, including the recent regulations respecting collective bargaining in the public sector of 31 May 2001". The mission also emphasized that the ruling of 24 May 2000 indicates that it has retroactive effect.

The Committee notes that the trade union organization ANEP emphasizes that the right to collective bargaining should be recognized in the context of municipal authorities.

The Committee notes the information contained in the Government’s report on the various measures taken by the Minister of Labour (to intervene with the President of the Legislative Assembly and the leaders of the legislative groups) and the Bills submitted for the proper application of the Convention in relation to the issues raised above, including a Bill to approve Convention No. 151 (placed as item No. 17 of the first readings for the second part of the plenary session), a Bill to approve Convention No. 154 (item No. 18), a Bill to reform article 192 of the Constitution (with a view to which the legislative is examining the possibility of establishing the corresponding commission) and a Bill respecting the negotiation of collective agreements in the public sector and to add a subsection (5) to section 112 of the General Act on public administration (under examination by the Permanent Committee on Social Affairs). The Government hopes that the discussion and examination of these draft texts will result in improvements in the application of Convention No. 98.

Recalling that the Convention only allows for the exclusion from its scope of application of public servants engaged in the administration of the State (Article 6 of the Convention), the Committee expresses the firm hope that the draft texts referred to by the Government will be adopted in the very near future and requests the Government to keep it informed in this respect.

3.  Subjecting collective bargaining in the public sector
  to criteria of proportionality and rationality

The Committee noted previously that the ruling of the Constitutional Chamber of 30 August 2000 concerning the RECOPE oil refinery (a public enterprise) declared unconstitutional certain clauses of a collective agreement (relating to the vacation bonus, paid and unpaid leave for personal reasons, the attendance bonus for employees who comply with the duty to attend work, etc.) on grounds, in particular, of the criteria of legality, proportionality, rationality and equality, and referring to the unreasonable and disproportionate privileges which in certain cases are secured with public funds. The Committee insists that only on grounds of procedural flaws or non-compliance with minimum legal standards, including constitutional provisions, could clauses of agreements be struck down and it emphasized that the ruling in question may have very prejudicial effects on the confidence placed in collective bargaining as a means of resolving conflicts and may give rise to a loss of autonomy of the parties and the devaluation of collective bargaining itself.

The Committee previously expressed the hope that in future the authorities would take into account the above principle and would refrain from striking down clauses of collective agreements on the basis of the criteria of mere proportionality and rationality. The Committee notes the Government’s indication in its report that it has forwarded the proposals of the ILO’s supervisory bodies to the President of the Supreme Court of Justice for analysis and consideration, in the context of the principle of the separation of powers, so that the judicial authorities can take into account the principles indicated by the Committee of Experts. The Government reports that various deputies have recently lodged an appeal on grounds of unconstitutionality against various sections of the collective agreement in force in the "RECOPE" enterprise and that the Ministry of Labour joined the action of the trade union of the enterprise in order to maintain the collective agreement in force.

The Committee reiterates its previous conclusions on this matter, and requests to be kept informed in this respect.

4.  Collective bargaining in the private sector

In its previous observation, the Committee noted with concern the enormous imbalance in the private sector between the number of collective agreements concluded by trade union organizations (12, with very low coverage - 7,200 workers) and the direct accords concluded by non-unionized workers (130). The Committee noted that the trade union confederations link this imbalance with the permanent workers’ committees which, in their opinion, mostly act as hidden agents of employers or solidarist associations, an allegation that is denied by employers. In their previous communications, two trade union organizations made allegations concerning the conclusion of unlawful direct accords in the passenger and cargo transport sector.

The Committee once again emphasizes that the ILO’s instruments envisage direct negotiation between employers’ and workers’ representatives only in the absence of trade union organizations. The Committee points out that Convention No. 98 advocates "encouraging and promoting negotiation with workers’ organizations" by means of collective agreements and requests the Government to take the necessary measures to promote collective bargaining within the meaning of the Convention and for the holding of an investigation by independent persons of the reasons for the increase in direct accords with non-unionized workers. The Committee notes the Government’s indication in its report that it has requested the technical assistance of the ILO Subregional Office for Central America and the collaboration of the judiciary, to which it has transmitted the comments of the Committee of Experts. The Committee reiterates its previous conclusions and hopes that it will be possible to note progress in the near future.

Finally, the Government indicates in general that it has requested the technical assistance of the ILO Subregional Office for Central America for the discussion of the various issues relating to the Convention in a tripartite context, and that a tripartite commission has been established to examine the draft texts of labour law, and met for the first time in September 2002. The Committee requests the Government to keep it informed of any progress achieved in relation to the various issues raised in this observation.

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

The Committee notes the Government’s report, the discussions in the Conference Committee in June 2001 and the report of the technical assistance mission which visited Costa Rica from 3 to 7 September 2001. The Committee also notes the comments on the application of the Convention submitted by the Union of Employees of the Ministry of Finance (SINDHAC) and the Transport Workers’ Union of Costa Rica (SICOTRA) on 28 June 2000 and by the International Confederation of Free Trade Unions (ICFTU) and the Rerum Novarum Confederation of Workers on 20 and 25 September 2000 and 20 February and 7 March 2001, as well as the Government’s observations in this respect. The Committee notes the recent comments made by the central trade union organizations of Costa Rica, which had already been provided to the technical assistance mission.

1.  Slowness and ineffectiveness of recourse
procedures in the event of anti-union acts

The Committee notes the slowness of the judicial procedures in the event of cases of anti-union persecution and of those applicable in cases of breaches of the labour legislation giving rise to the imposition of penalties which, according to the report of the mission, may last for one or two years, as well as, in contrast, the Government’s statement that the prior administrative procedure takes around the period of two months established by the Constitutional Chamber. The Committee notes a substantial decrease in acts of anti-union discrimination between 1996 and 1999, but observes that, according to the central trade union organizations, the fear of reprisals persists among workers who establish and join a trade union. The Committee notes that "the Government, workers and employers agree upon the need for proceedings to be rapid and, within the framework of a tripartite consensus, the Executive Authority has submitted to the Legislative Assembly a bill to amend the various provisions of the Labour Code and which addresses very fully acts of anti-union discrimination and interference (dismissals, transfers, blacklists, etc.) and provides for very rapid procedures prior to dismissal which have to be discharged by the employer and summary proceedings before the judicial authorities with compulsory time limits to ascertain the reasons for the dismissal, with severe penalties for refusal to reinstate the worker where justified grounds are not found to exist. It is explicitly provided that, in the situations described above, dismissal without due cause as provided in the Labour Code shall be void (that is, subject to compensation), as already established in the case law of the Constitutional Chamber.""This Bill is supported by the central trade union organizations, which have concluded an agreement with the parties of the main components of Parliament, including an undertaking by the heads of the components to change the agenda so that after the first discussion of the Act for the protection of workers, the Bill respecting trade union freedoms will be presented."

Taking into account the importance of the problems raised above, the Committee expresses the firm hope that the above Bill, which it notes with interest, will be adopted in the very near future and it requests the Government to provide information in this respect.

The Committee notes the allegations made by SINDHAC and SICOTRA concerning acts of anti-union discrimination and requests them to provide the texts of any administrative or judicial decisions in this respect.

2.  Denial of the right to collective bargaining in the
public sector, including employees who are not
engaged in the administration of the State, as a
result of various court rulings

In its previous observation, the Committee had noted that the Government: (1) had requested the Office’s technical assistance with a view to the adoption of specific provisions relating to the right of public servants to collective bargaining; and (2) had expressed its readiness to prepare draft legislation. In these conditions, the Committee recalls that, under Article 4 of the Convention, public servants who are not engaged in the administration of the State should have the right to engage in collective bargaining with a view to the regulation of their terms and conditions of employment. The Committee hopes that the Government, after receiving the technical assistance requested in the near future, will adopt measures to bring national law and practice into full conformity with the provisions of the Convention.

The Committee notes that, according to the report of the technical assistance mission, there are good grounds for believing, including the opinion expressed by the President of the Constitutional Chamber, that the Chamber’s rulings Nos. 2000-04453 of 24 May 2000 and 2000-7730 of 30 August 2000, as well as the Chamber’s vote of clarification (No. 2000-09690) of 1 November 2000, totally exclude collective bargaining for all public sector employees with a statutory employment status, including those working in public or commercial enterprises or in independent public institutions. The Committee notes the action taken by the Government, in the context of this case law, to defend the right of collective bargaining in the public sector, and more particularly the recent Decree No. 29576-MTSS of 31 May 2001 (regulations for the negotiation of collective agreements in the public sector), which only excludes from this right public servants of the highest level in the public sector, and that the above regulations, in accordance with the recommendations of the technical assistance provided by the ILO, includes certain substantial improvements with regard to the 1993 regulations (for example, abolition of the approval commission, broadening the scope of application of the Convention, limitations on collective bargaining only for the public sector or its representatives) and which were the subject of certain comments by the technical assistance mission with a view to developing future legislation, in which emphasis was placed on certain problems and on the need to clarify certain points.

Nevertheless, the Committee notes that the technical assistance mission, commenting on the above rulings of the Constitutional Chamber, "emphasizes the confusion, uncertainty and even legal insecurity existing with regard to the scope of the right to collective bargaining in the public sector in terms of the employees and public servants covered (according to the rulings, the administration of the public institutions or enterprises is responsible for determining which employees have statutory status, and their decision may in turn be appealed to the judicial authorities) and in parallel concerning the validity and effect of certain collective agreements which are in force, as well as the constitutionality of the large number (according to the Government) of de facto negotiations existing, and even of the recent regulations respecting collective bargaining in the public sector of 31 May 2001. The mission also emphasizes that the ruling of 24 May 2000 indicates that it has retroactive effect."

The Committee expresses its deep concern over this situation, which constitutes a serious violation of Convention No. 98 in terms of the right to collective bargaining in the public sector, since the Convention only allows the exclusion from its application of public servants engaged in the administration of the State (Article 6). However, the Committee notes the existence of a Bill which is before the Legislative Assembly and is supported by the social partners and the Government, the President of the Legislative Assembly and the main opposition party, providing for the ratification of ILO Conventions Nos. 151 and 154 (which address, among other matters, the right of collective bargaining in the public administration) and which would make it possible to find solutions to the problems that exist and strengthen the application of Convention No. 98. It expresses the firm hope that it will be adopted in the very near future and requests the Government to provide information in this respect.

3.  Subjecting collective bargaining in the public
  sector to criteria of proportionality and rationality

The Committee notes that, according to the information contained in the mission’s report, the decision of the Constitutional Chamber of 30 August 2000 concerning the RECOPE oil refinery (a public enterprise) declared unconstitutional certain clauses of a collective agreement (relating to the vacation bonus, paid and unpaid leave for personal reasons, the attendance bonus for employees who comply with the duty to attend work, etc.) on grounds, in particular, of the criteria of legality, proportionality, rationality and equality, and referring to unreasonable and disproportionate privileges which in certain cases are secured with public funds. The Committee emphasizes that only on grounds of vices of form or non-compliance with minimum legal standards can clauses of agreements be struck out and emphasizes, in the same way as the mission, that the ruling in question may have very prejudicial effects on the confidence placed in collective bargaining as a means of resolving conflicts and may give rise to a loss of autonomy of the parties and the devaluation of collective bargaining itself.

The Committee hopes that in future the authorities will take into account the above principle and will refrain from striking out clauses of collective agreements on the basis of the criteria of unique proportionality and rationality.

4.  Collective bargaining in the private sector

The Committee notes with concern that the report of the mission draws attention to the enormous imbalance in the private sector between the number of collective agreements concluded by trade union organizations (12, with very low coverage - 7,200 workers) and the direct pacts concluded by non-unionized workers (130). The Committee notes that the trade union confederations link this imbalance with the permanent workers’ committees which, in their opinion, mostly act as agents of employers or of solidarist associations, an allegation that is denied by employers. In their communications, the trade unions SINDHAC and SICOTRA allege the conclusion of illegal direct pacts in the passenger and cargo transport sector. The Committee emphasizes that the ILO’s instruments envisage direct negotiation between employers and workers’ representatives only in the absence of trade union organizations. The Committee points out that Convention No. 98 advocates encouraging and promoting negotiation with workers’ organizations by means of collective agreements and requests the Government to take the necessary measures to promote collective bargaining within the meaning of the Convention and to hold an investigation by independent persons concerning the reasons for the increase in direct pacts with non-unionized workers.

The Committee supports the proposal by the mission that the unresolved problems should be discussed in a tripartite framework with the technical assistance of the ILO with a view to finding satisfactory solutions to them.

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

The Committee notes the observations made by the Rerum Novarum Confederation of Workers, the International Confederation of Free Trade Unions (ICFTU), the Union of Employees of the Ministry of Finance (SINDHAC) and the Transport Workers Union of Costa Rica (SICOTRA) on the application of the Convention. The Committee also notes the Government’s reply to the observations of the Rerum Novarum Confederation of Workers and the ICFTU. The Committee further notes the observations made by the Union of Chambers and Associations of Private Enterprise of Costa Rica (UCCAEP) concerning trade union rights and their protection in Costa Rica.

The Committee notes that in two lengthy communications the Rerum Novarum Confederation of Workers indicates that, as a result of the various decisions by the judicial authorities, the right to collective bargaining has been denied to workers in the public sector, thereby violating the provisions of the Convention. The ICFTU supports these observations. In this respect, the Committee notes that the Government: (1) has requested the technical assistance of the Office with a view to the adoption of specific provisions relating to the right of public servants to bargain collectively; (2) expresses its readiness to prepare draft legislation; and (3) in this context, has convened the trade unions to a bipartite commission, although the unions have made their participation conditional on, among other matters, the ratification of ILO Conventions on this and other subjects, an attitude which the Government regrets. While recalling that, by virtue of Article 4 of the Convention, public servants who are not engaged in the administration of the State should enjoy the right to bargain collectively with a view to the regulation of their terms and conditions of employment, the Committee hopes that the Government, on receiving the requested technical assistance in the very near future, will proceed to bring national law and practice fully into conformity with the provisions of the Convention.

The Committee requests the Government to provide its comments in its next report on the observations made by SINDHAC and SICOTRA on the application of the Convention in their communication of 28 June 2000.

Finally, the Committee will examine the remaining matters raised in its previous observation during the course of the regular examination of the application of the Convention in 2001.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report, the information provided by a Government representative to the Conference Committee in June 1999 and the discussion which followed.

Articles 1 and 3 of the Convention. In its previous observations, the Committee had referred to the need to take measures to ensure that procedures were in place for the rapid processing of cases of anti-union discrimination and that court rulings were enforced. In this respect, the Committee notes with interest that: (i) the Constitutional Court has held that the labour inspectorate must comply with the time limit of two months for its investigations; and that (ii) the Government has provided information on draft legislation to amend various sections of the Labour Code, submitted to the Legislative Assembly in November 1998 which have been prepared as part of a process of national dialogue. This draft text envisages an express process (of a maximum duration of 14 days, including appeals against the ruling of the first-level court) in the event of dismissal, accompanied by the imposition of fines in cases where the employer fails to comply with a reinstatement order. The Committee hopes that this draft legislation will be adopted in the near future and requests the Government to inform it of all progress achieved in this respect in its next report.

Article 4. For several years, the Committee has been referring to the non-recognition of the right to collective bargaining of public servants who are not engaged in the administration of the State. In this respect, the Committee notes with interest the information provided by the Government on a new Bill respecting public employment of October 1998, developed through the process of national dialogue, which is currently being examined by the Economic Affairs Commission of the Legislative Assembly and which would extend this right to the public sector. The Committee expresses the firm hope that the legislation on this matter will be adopted in the near future and requests the Government to keep it informed in this respect.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and the information provided in 1997 concerning the comments made by the Inter-Confederal Committee of Costa Rica (CICC) on the application of the Convention.

The Committee recalls that its previous comments referred to the non-recognition of the right to collective bargaining for public servants not engaged in the administration of the State and the need for the adoption of measures to facilitate the rapid expedition of proceedings in cases of anti-union discrimination.

Similarly, the Committee notes the comments made by the CICC in 1997 which referred to the following: (1) the delay in processing of cases of anti-union discrimination and the failure to carry out the courts' rulings to enforce the reinstatement of trade union leaders; (2) acts of interference by the employer in the establishment of trade union organizations; (3) the inequality of treatment between trade unions and solidarist associations with regard to the management of compensation funds for dismissed workers (this matter is examined by the Committee in the framework of Convention No. 87); (4) the lack of adequate bodies to ensure the respect of the right to freedom of association; (5) the impossibility for public servants to negotiate collectively and the non-application of certain collective agreements and the non-existence of collective bargaining in the private sector resulting from the high level of trade union persecution.

Article 2 of the Convention. In respect of the alleged acts of interference, the CICC refers to the case of FERTICA S.A., where the enterprise's management promoted the establishment of an executive committee in parallel with the existing executive trade union committee. The Committee notes the Government's indication that, after having been referred to the administrative authorities, this case was referred to the judicial authorities; nevertheless, the Committee notes that, according to the documentation submitted by the CICC, the Labour Inspectorate concluded in a report that FERTICA S.A. had engaged in unfair practices by "promoting the establishment of another executive committee (... from the union ...) parallel to the existing one ...". Under these conditions, the Committee emphasizes that, in accordance with Article 2 of the Convention, workers' and employers' organizations shall enjoy adequate protection against any act of interference by each other, as well as the importance of respecting this principle in practice.

Article 3. In respect of the proceedings relating to acts of anti-union discrimination and the failure to implement the courts' rulings to reinstate trade union leaders, the Committee notes the Government's statement that: (i) in respect of administrative procedures, the National Directorate of Labour Inspection has undertaken to investigate the numerous denunciations made on these matters in an objective manner and as laid down in the basic principles set out in the Constitution, in national law and jurisprudence; these investigations result in administrative decisions, which on occasion result in cases being brought to the courts; the Government provides detailed information on the various stages of the proceedings in respect of the following enterprises: FERTICA S.A., Caja de Ande, Compañía Bananera Anabel and the Institute of Agrarian Development; (ii) when these matters are referred to the judicial authorities, the National Directorate of Labour Inspection is prevented from intervening in the proceedings, either to speed up the proceedings or to support the plaintiffs, but that the lawyers of the National Directorate of Labour Inspection undertake awareness-raising activities for those responsible for the case; (iii) the lack of enforcement of sentences handed down by the courts and the time taken to resolve each case in the first and second instances cannot be blamed on the administrative authorities; (iv) whilst it is clear that existing labour legislation is inadequate to resolve the numerous labour issues, it is also clear that the delay in certain proceedings have occurred as a result of the inaction or tardiness of certain plaintiffs in providing evidence or in fulfilling certain requirements which are necessary to prove the alleged offences; (v) a Ministry of Labour directive recently reaffirmed the obligation of the administrative authorities to speed up proceedings in respect of anti-union discrimination and a ruling of the Constitutional Council of the Supreme Court indicates that the work of the administrative authorities is limited to carrying out an investigation to determine whether there are sufficient grounds to bring a case before the courts and emphasizes that the investigation must be concluded within a two-month period.

The Committee also notes that the CICC refers to a considerable number of denunciations of acts of anti-union discrimination between 1994 and 1996 which have still not been processed by the administrative authorities and that the Government has commented on several cases of delays. Similarly, the Committee notes that the Government does not deny the slowness of judicial procedures in labour matters and emphasizes that this is largely due to the lack of evidence supplied by the parties and that the Constitutional Council of the Supreme Court recently laid down a two-month time-limit on the administrative authorities for the proceedings (prior to the cases of anti-union discrimination being referred to the courts). The Committee recalls that, in cases of allegations of acts of anti-union discrimination, it has always emphasized the necessity of providing expeditious, accessible, inexpensive and impartial means of preventing acts of anti-union discrimination or remedying them as quickly as possible (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 216). Under these conditions, since the Government recognizes the inadequacy of the procedures laid down in the current labour legislation and that up to now significant measures have only been adopted in respect of administrative procedures (a directive of the Ministry of Labour reaffirming the duty of the administrative authorities to expedite the proceedings of cases of anti-union discrimination, and a ruling of the Constitutional Court imposing a two-month time-limit on the administrative authorities for their investigations and to decide whether to bring a case for acts of anti-union discrimination), the Committee requests the Government to consider amending the legislation to expedite judicial proceedings concerning anti-union discrimination and to ensure that the decisions thereby are implemented by effective means. The Committee requests the Government to inform it in its next report of any measures adopted in this respect.

Article 4. In regard to its previous comments on the non-recognition of the right to collective bargaining of public servants not engaged in the administration of the State, which was also raised by the CICC, the Government had been referring for several years to a Bill respecting public employment which considers the right to collective bargaining and to strike in the public sector. The Committee notes that, in its report, the Government states that the Bill in question is still awaiting examination by the Legislative Assembly and that, within the legal and constitutional limitations restricting the intervention of the Executive in the functions of other branches of the Republic, the Ministry of Labour and Social Security undertakes to make greater efforts to encourage the examination of the Bill in the near future. The Government also refers to the Regulation of 1992 on collective bargaining by public servants which, in a certain manner, is transitory in its nature and provides for the "participation" of public servants in determining their terms and conditions of work, although the Government recognizes that this participation does not take place through collective agreements. The Government also indicates that it envisages presenting a draft text to the Legislative Assembly respecting the settlement of collective disputes in the public sector which, in its opinion, would fully and totally resolve the problem of collective bargaining. In this respect, the Committee regrets to note that, despite this being a fundamental right, there have been no significant developments for many years with regard to the right of public servants who are not engaged in the administration of the State to bargain collectively to determine their terms and conditions of work through collective contracts or agreements. Under these conditions, the Committee expresses the firm hope that the legislation on this matter will be adopted in the near future and requests the Government to keep it informed in this respect.

With regard to the comments made by the CICC in respect of the non-application of collective agreements concluded by the parties (and in particular with reference to the case of FERTICA S.A.), the Committee notes that, although the Government has not transmitted its comments in this respect, the Committee on Freedom of Association has examined this allegation and has adopted recommendations requesting the Government to take measures to ensure that FERTICA S.A. duly complies with the collective agreement (see the 305th Report of the Committee on Freedom of Association, Case No. 1879, paragraph 205(a)).

Finally, in respect of the CICC's allegation that collective bargaining in the private sector is non-existent as a result of the high levels of trade union persecution, the Committee notes that the CICC has not provided concrete information in support of its allegations and the Committee is therefore unable to reach conclusions on this matter.

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

The Committee notes the Government's report and the recent comments made by the Inter Confederal Committee of Costa Rica (CICC) on the application of the Convention, in which it confirms the relevance of the Committee's comments. The Committee observes that these comments have been sent to the Government to enable it to forward its observations in this respect.

The Committee recalls that its previous comments referred to the non-recognition of the right to collective bargaining for public servants not engaged in the administration of the State, and that in its previous observation it had noted that a Bill on the Status of the Civil Service had been submitted to the Legislative Assembly for approval, which envisaged the right to bargain collectively and to strike in the public sector.

The Committee observes that in its report for 1996 the Government reiterates that the draft in question is being examined by the Legislative Assembly. In these circumstances, observing that more than three years have already elapsed since the draft was submitted, the Committee expresses the hope that the Government will take the necessary measures in the very near future, be they through the adoption of the draft in question or by any other means, in order to bring the legislation into full conformity with the Convention. The Committee requests the Government to keep it informed of all developments in this respect and to send it copies of all the relevant texts adopted.

With reference to its previous comments recommending that the Government take measures in order to accelerate the investigation procedures whenever complaints are made concerning anti-union acts, for the purposes of providing effective protection for enterprise workers in free trade zones and other sectors, the Committee notes that the Government has forwarded a copy of a letter which it sent in December 1995 to the National Directorate of the Labour Inspectorate, the Directorate General for Labour Affairs and the Legal Affairs Directorate, instructing them to take measures in accordance with the recommendation made by the Committee. Notwithstanding this, given that the CICC refers to cases of anti-union discrimination, consideration of which has continued for years without being completed, the Committee requests the Government to take new measures to ensure that the procedures applicable in cases of anti-union discrimination are accelerated and to inform it accordingly.

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

The Committee notes the Government's report and the conclusions of the Committee on Freedom of Association in Cases Nos. 1678 and 1695 concerning collective bargaining in the public sector (see 297th Report, paragraphs 421 to 430, approved by the Governing Body at its 262nd Session in March-April 1995), as well as in Case No. 1780 concerning allegations of anti-union dismissals (see 300th Report, paragraphs 130 to 143, approved by the Governing Body at its 264th Session in November 1995).

The Committee recalls that its previous comments related to the right to collective bargaining of public employees not engaged in the administration of the State. In its previous observation, the Committee had expressed the hope that the Bill on collective bargaining in the decentralized public sector would shortly be adopted and would be in line with the provisions of the Convention.

In this respect, the Committee notes with interest that, as indicated in its report, the Government submitted to the Legislative Assembly for approval the Bill on the Status of the Civil Service, which provides for the right to collective bargaining and to strike in the public sector, and is the result of consensus reached by the Government and public employees' organizations.

The Committee expresses the hope that the Bill on the Status of the Civil Service will be adopted in the near future and will be in line with the provisions of the Convention. The Committee requests the Government to keep it informed on the matter and to send it a copy of the text once it has been approved.

With reference to the allegations of dismissal of workers by an enterprise located in the free-trade zone of Costa Rica for having established the Trade Union of Construction, Metallurgical and Related Workers (SICMA) (Case No. 1780), the Committee, like the Committee on Freedom of Association, recommends that the Government take measures to ensure that whenever complaints are made of violations of trade union rights, workers in enterprises in free-trade zones, as well as elsewhere, benefit from speedy inquiry procedures with a view to providing effective protection (see paragraph 142 of the aforementioned 300th Report).

The Committee requests the Government to keep it informed of any measures adopted in this matter.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report and the report on the direct contacts mission that took place from 4 to 8 October 1993.

Articles 1 and 2 of the Convention. For several years, the Committee has been asking the Government to adopt provisions establishing means of redress and sufficiently effective and dissuasive sanctions for acts of anti-union discrimination and interference.

In this connection, the Committee notes with satisfaction that Act No. 7360 of 4 November 1993 meets the Committee requests. The new Act:

- establishes as punishable offences "actions or omissions on the part of employers, workers or their respective organizations, which are in breach of the standards laid down in the Conventions adopted by the International Labour Organization, ratified by the Legislative Assembly (including the provisions of Convention No. 98 which prohibit anti-union discrimination and interference) as well as the standards set out in the present Code and the laws on social security". The new Act contains a table of penalties, which may be of up to 23 months of minimum wages;

- prohibits "actions or omissions aimed at avoiding, limiting, placing constraints on or preventing the free exercise of the collective rights of workers, their unions or coalitions of workers", and also establishes that "any act arising therefrom shall be null and void and shall be penalized under provisions of the Labour Code and its supplementary or appended acts concerning breaches of prohibitive provisions";

- guarantees job stability for the members of trade unions in the process of being formed (for up to four months), certain trade union officials (while they are in office and for up to six months afterwards) and candidates for the executive committee (for three months from the date on which they submit their candidature). It provides that, in the event of unwarranted dismissal of the workers thus protected, "the competent labour court shall declare such dismissal null and void and shall subsequently order the reinstatement of the worker and payment of all outstanding wages, in addition to penalties for which the employer is liable pursuant to this Code and its supplementary and appended acts".

The Committee also notes with interest that Act No. 7135 of 11 October 1989 provides for a right of appeal ("recurso de amparo") by individuals, whereby the effects of the impugned act under challenge may be provisionally suspended and the dismissed union officials reinstated, as was ruled by the Constitutional Chamber of the Supreme Court of Justice in October 1993. See also under Convention No. 87.]

Articles 4 and 6 (Right to collective bargaining of public employees not engaged in the administration of the State). In its previous observation the Committee expressed the hope that the Bill on collective bargaining in the decentralized public sector would shortly be adopted.

In this connection the Committee notes the Government's statement in its report that, since the Labour Code does not apply to the public sector, the Central Labour Council (a tripartite body) drafted regulations to fill the legal void, and the Government Council adopted it by means of Directive No. 162 of 9 October 1992 which guarantees workers' right to collective bargaining. Section 18 specified that the Regulations were provisional pending the submission to the Legislative Assembly of a Bill on dispute settlement in the public sector. The Committee also notes from the Government's report that a bipartite committee (government-unions) has been negotiating the above bill since May 1993 and the results achieved are satisfactory to both parties. Furthermore, an agreement signed on 8 November 1993 by the Government and certain union organizations contains a commitment to complete the text at the latest by the last day of February next year so that the Executive can present it to the Legislative Assembly. If the whole text cannot be submitted, at least the parts concerning collective bargaining and strikes in the public sector will be presented. The Government points out that the ILO's suggestions have been carefully followed in this matter.

The Committee hopes that the legislation on collective bargaining in the public sector will be adopted in the near future and that it will be in line with the provisions of the Convention, and asks the Government to keep it informed in this respect.

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

Articles 1 and 2 of Convention (protection against acts of discrimination and interference). For several years in its comments the Committee has been requesting the Government to adopt specific provisions that expressly establish means of recourse and penalties against acts of anti-union discrimination and interference by employers in workers' organisations. In its previous observation, the Committee noted the information supplied by the Government in its report to the effect that the new draft of the integral reform of the Labour Code retains the sections respecting non-discrimination and non-interference that were contained in the 1981 draft Labour Code prepared with ILO assistance.

The Committee wishes to point out that the current legislation does not provide protection for trade union members and, in particular, does not guarantee the employment of trade union officers and trade unionists when the cause of their dismissal is participation in trade union activities, since dismissal is permitted - without giving the need to specify reasons (at "the desire of the employer") and only requiring the payment of statutory compensation (section 85 of the Labour Code). This is not in accordance with Article 1 of Convention No. 98.

The Committee notes the Government's statement in its latest report that it hopes to extend the provisions respecting protection against discrimination and interference by establishing a right of review and penalties. The Government also states that the Committee's comments will be analysed by the group that is examining the two draft texts of the Labour Code with the purpose of establishing one draft text.

The Committee hopes that provisions will be adopted in the near future to establish a right of review and sufficiently effective and dissuasive penalties against acts of anti-union discrimination and interference. The Committee requests the Government to inform it of developments in this respect.

Articles 4 and 6 (the right to bargain collectively of public servants who are not engaged in the administration of the State). The Committee had noted the information contained in the Government's previous report to the effect that a negotiating committee had been set up and was composed of the principal central trade union organisations, the Government of the Republic and various ministries, and that this committee had prepared draft legislation respecting collective bargaining in the decentralised public sector, which would be submitted to the Legislative Assembly.

In its latest report, the Government indicates that the draft legislation respecting collective bargaining in the decentralised public sector is now being examined by the Legal Affairs Commission of the Legislative Assembly and that it does not yet have any information available in this respect.

The Committee is bound once again to express the hope that the above draft legislation (which brings the legislation into conformity with the Convention) will be adopted in the near future and requests the Government to indicate any progress that is achieved in its next report.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

Articles 1 and 2 of the Convention (protection against acts of discrimination and interference). For several years in its comments the Committee has been requesting the Government to adopt specific provisions that expressly establish means of recourse and penalties against acts of anti-union discrimination and interference by employers in workers' organisations.

In a previous observation, the Committee regretted that the 1981 draft Labour Code, which had been prepared with ILO assistance, had not been adopted, since it contained provisions respecting non-discrimination and non-interference which were in conformity with the Convention.

The Committee notes the information supplied by the Government in its report to the effect that the new draft of the overall reform of the Labour Code retains the sections respecting non-discrimination and non-interference that were contained in the 1981 draft Labour Code prepared with ILO assistance. It hopes that these provisions will be adopted in the near future.

Articles 4 and 6 (the right to bargain collectively of public servants who are not engaged in the administration of the State). The Committee notes the information contained in the Government's report to the effect that a negotiating committee has been set up and is composed of the principal central trade union organisations, the Government of the Republic, the Ministry of Labour and Social Security, the Ministry of National Planning and Economic Policy, the Ministry of the Economy, Industry and Commerce, the Ministry of Finance and the President's Office and that this committee has prepared draft legislation respecting collective bargaining in the de-centralised public sector which it hopes will be submitted to the Legislative Assembly before the end of the year and become law in the Republic.

The Committee can only once again express the hope that the draft legislation relating to these points of the observation, which would bring the legislation into full conformity with the Convention, will be adopted in the near future and it requests the Government to indicate any progress achieved in this respect in its next report.