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

Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

The Government representative, the Minister of Labour and Social Security, emphasized that his country fully applied the rule of law and allowed the law courts to decide on any discrepancies which might emerge in its society. The right to strike in Costa Rica had been set out in 1949 in article 61 of the Political Constitution. The provisions of this article showed clearly that the legislator envisaged that the right to strike would be set out in law, in this case in the Labour Code, and that it would have two limitations: in the first place, as to the sectors in which it could be exercised, with the indication that it was prohibited in the public services, the definition of which would be determined by law; and, in the second place, as regards the manner in which it was exercised, with the prohibition of any acts of coercion or violence. Section 364 of the Labour Code provided that a strike was the temporary stoppage of work in an enterprise, establishment or business, agreed upon and executed peacefully by a group of three or more workers, with the exclusive purpose of improving or defending their mutual economic and social interests. This provision was supplemented by section 366 of the Labour Code (first part), which set out the requirements to be met in order to call a legal strike. These included strict compliance with section 364, exhaustion of the conciliation procedure set out in Chapter III, Title VII, Sections 500 and following, of the Labour Code, and the requirement of being at least 60 per cent of the workers in the enterprise, workplace or business concerned. It could therefore be concluded that any strike which did not meet the requirements of section 366 (first part) was illegal. The strike by workers in Linéas Aéras Costaricenses SA (LACSA), which was referred to in the report of the Committee of Experts, did not fulfil the above requirements and was therefore illegal. This was not because it had taken place in a public service, but because when calling the strike the workers had not fulfilled the requirements established by law.

With regard to the right to strike in the public sector in general, article 61 of the Constitution excluded workers employed in the public service from its protection and left the determination of public services to the discretion of the legislator. The constitutional provision was reflected in section 368 (first part) of the Labour Code, which stated that strikes were not permitted in the public services. In this respect, it was important to note that section 368(2), which provided that disputes occurring in these services between employers and workers, and in any other cases in which strikes are prohibited, shall be submitted for settlement by the labour courts, had been found unconstitutional by the Constitutional Council on 23 August 1992. Sections 467 to 535 of the Labour Code had also been declared unconstitutional with regard to public servants and to public administrations not subject to a private employment regime, as well as sections 398 to 404 and section 535, without prejudice to the rights acquired in good faith through the labour courts for the specified duration of such rights. The ruling by the Constitutional Court stated that there were two different types of employment relations in the public service. One of these was the relationship of employees in the public sector who were bound to public administrations by a "public employment regime", under the terms of the state regime set out in articles 190 and 191 of the Political Constitution. The other type of employment relationship was not legally subject to a public employment regime, principally in state enterprises in which the State owned all or most of the shares, with the result that the employees concerned were not governed by the concept of a public employment relationship, but rather a private employment relationship. In one of the grounds for its judgment, the Constitutional Court made reference to these administrations by asserting that the declaration contained in this decision covered the employment relationship between the public administration (or administrations) and its employees but as concerned sectors in which there existed a national regulation referring to the private sector, the solution should be different. These cases would be submitted to arbitration procedures if they were based on laws, regulations or governmental decisions in force. In addition, they could not be the object of arbitration decisions taken in good faith nor decisions made by tribunals composed of persons who were not sworn officials. He recalled in this respect that, by conviction and legal obligation, the Government respected the rulings of the courts and the Constitutional Council, which were universally binding.

The definition of the public service according to Costa Rican law was contained in section 369 of the Labour Code, which stated that, for the purposes of the above section, public service means: (a) all services provided by state workers or institutions, where their activities are not also provided by individual profit-making enterprises; (b) services provided by workers engaged in sowing, cultivating and harvesting agricultural products, raising stock and producing forestry products, as well as their processing when such products would deteriorate if such processing were not carried out immediately. Nevertheless, the above services excluded the services provided by agricultural workers in enterprises which have concluded contracts with the State, which have been converted into laws of the Republic, in which it has been specified that the enterprises and their workers may submit disputes to arbitration for settlement only when they have voluntarily agreed to do so; (c) the services provided by employees of railway, sea and air transport enterprises, and the services provided by transport employees in any specific transport enterprise until its closure; (d) services provided by employees which were absolutely indispensable to maintain the operation of specific enterprises which could not interrupt their services without causing serious and immediate harm to health or the public economy, such as clinics and hospitals, hygiene services and lighting; and (e) services declared to be such by the Executive Authority throughout the territory of the Republic or in part of its territory, where the Legislative Assembly has availed itself of its constitutional powers to suspend certain individual guarantees.

The Government representative informed the Committee that, since the adoption of the Labour Code, various attempts had been made to make changes relating to the concept of public service. One of the measures adopted was contained in the Public Employment Bill No. 11,888 which was currently before the Legislative Assembly. The above Bill, in Title VI (single chapter, sections 110 to 119), contained regulations governing strikes in public services which recognized the right to strike in non-essential services and placed limits upon it, as well as establishing sanctions for non-compliance, and general prohibitions and the manner in which it could be exercised. With regard to the right to strike in transport enterprises, with reference to the Committee of Experts' comment on the dispute in the LACSA company, he indicated that section 113(f) of the Bill stated that: (general conditions of legality) in order for a strike in the public administration to be legal, employees and their organizations must meet the following requirements: (...)(f) in the case of vessels, aircraft, trains, buses and other public means of transport, such vehicles must be taken to their point of departure before the commencement of the strike.

The above information showed the openness of the legal system to permitting workers in transport enterprises, such as LACSA, to take part in strikes, provided that they complied with certain conditions in order to be classified as "legal strikes". In this way, the Government of Costa Rica was demonstrating its will to comply with the recommendations of the Committee of Experts concerning strikes in the sectors in question. There could be no doubt that through the new legislation, which was awaiting adoption by the Legislative Assembly, the Government of Costa Rica guaranteed minimum services and recognized the right to strike in non-essential services in public institutions, thereby endeavouring to find a new balance between the rights of society and the users of public services, on the one hand, and of public employees, on the other.

The rights which were formally set out in Costa Rican legislation and in the proposed legislation formulated by the Government, which was now before Parliament, were also becoming broader in practice. A little more than one year ago, teachers in the country, whose trade union organization was the strongest and best organized, had held a general strike to show their disagreement with the reforms to their special pension scheme introduced by the Government. The strike had lasted six weeks and finished when an ending to the strike was negotiated with the Magistrate. Despite being an illegal strike because it had taken place in a public service and did not meet the requirements set out by law, none of the strikers had been subject to dismissal or reprisals. A few days previously, a strike by telecommunications workers had been ended by decision of the workers themselves, but not due to government pressure. Even though the strike had been illegal, no sanctions had been taken against the strikers. The same had occurred in a strike called a few months previously in a hospital where the workers were calling for an increase in their food subsidy. The strike had been ended by decision of the workers and no sanctions had been taken against those who were involved in this illegal action. The Government representative emphasized that these cases demonstrated once again that, irrespective of whether or not strikes were legal, and unless they involved the violent expression of a point of view, they were respected even where they were in contravention of the law of the country. Strikes were neither prevented nor terminated by force. Nor were reprisals taken against the strikers.

With regard to the recommendation by the Committee of Experts that foreigners should be able to hold trade union office, at least after a reasonable period of residence in the country, the Government representative explained that the prohibition was a result of a principle set forth in the Political Constitution. Article 60(2) provided that foreigners were prohibited from holding office or exercising authority in trade unions. The legal basis of the above provision had its roots in the question of national sovereignty. In accordance with the country's constitutional provisions, sovereignty was vested exclusively in the nation. The Constitution reserved to nationals of the country the exercise of political rights on the basis that these were intrinsically derived from the exercise of the people's sovereignty. Indeed, since sovereignty was vested in the people, in accordance with articles 2, 3 and 4 of the Political Constitution, it was evident that the various ways in which the will of the people could be expressed, including the holding of office and the exercise of authority in trade unions, was confined to those who were members of the people. Nevertheless, the Government of Costa Rica was always ready to bring its legal provisions into conformity with the principles of the ILO and had decided to request technical assistance from the ILO in order to find a legal solution that was in accordance with the recommendation of the Committee of Experts.

On the question of strikes in the agricultural, stock-raising and forestry sectors, he noted that the concept of agricultural activity as a public service was not set out in jurisprudence or in very many legal texts. It was therefore interesting to examine the basis upon which the legislator had developed this concept. The explanation was to be found in the statement transmitted to Congress by the President of the Republic when submitting the draft Labour Code. He had stated that he was aware that the ILO had adopted a Convention in Geneva on 12 November 1921 obliging its signatories to guarantee to all persons working in agriculture the same rights of association as urban workers and to repeal any legislative or other measures which restricted those rights as they related to agricultural workers. However, he had emphasized his intimate conviction that agriculture and its related activities, in a country such as theirs, which depended exclusively on the produce of its fields, constituted a real public service which, for reasons of common interest, could not and should not be paralysed by a strike or work stoppage. Nevertheless, it was probable that the underlying reasons for the provision in question were more of a political nature. Indeed, the prohibition upon strikes by agricultural workers was not an isolated provision, but formed part of a legislative policy that resulted in the Labour Code containing a whole series of provisions containing exceptions for rural workers. Despite the fact that they were dispersed throughout the Labour Code, they amounted to specific legal treatment that was less favourable for these workers. A number of these provisions had been repealed or amended, but there was no doubt that the intention was for the Labour Code not to apply in real terms to the agricultural sector.

It could therefore be deduced that the provisions in question covered two types of situations and one exception. The first was the most general and included all the work of sowing, cultivating and harvesting agricultural products, raising stock and producing forestry goods. The second case consisted of the processing of such products, and only covered cases in which they needed to be processed immediately in order to prevent them from perishing. The exception concerned agricultural workers in enterprises that had concluded so-called "legislative contracts" with the State in which they agreed to have recourse to voluntary arbitration. Subsequently, in view of the fact that in the cases under examination strikes were not permitted and arbitration was compulsory, and in view of the consideration that a legislative contract could not be modified by a law, the legislator had to enshrine this provision in the law for the sake of coherence. The Government was aware of the less favourable treatment accorded to freedom of association for agricultural workers, particularly with regard to the right to strike, since the adoption of the Labour Code and on various occasions had endeavoured to introduce reforms relating to the concept of public service. One of the measures adopted was contained in the Public Employment Bill No. 11,888 which was currently before the Legislative Assembly. The above Bill, in Title VI (single chapter, sections 110 to 119), contained regulations governing strikes in public services which recognized the right to strike in non-essential services and placed limits upon it, as well as establishing sanctions for non-compliance and general prohibitions. In accordance with the proposed provisions of section 110 of the above Bill, strikes would be permitted in the agricultural, stock-raising and forestry sectors. The Government representative was of the opinion that the prohibition of the right to strike for these workers was discriminatory and violated the principle of legal equality. He therefore undertook to request the technical assistance of the ILO with a view to formulating draft legislation to eliminate this restriction. The above information once again demonstrated the commitment of the Government to complying with the recommendations of the Committee.

The Workers' members recalled that the Committee had examined in detail the application of the Convention by Costa Rica in 1993. One of the major concerns of the Committee, apart from the right to strike and several violations of the principles of freedom of association, had concerned the solidarist movement. They noted that the Government had taken into account the observations and comments of the Committee of Experts, as well as of this Committee, in the establishment of the relevant draft legislation. However, they regretted that serious problems remained in practice. According to some information, a growing number of employers were using these non-representative associations to free themselves from the obligations contained in the collective agreement. They insisted that the draft legislation, which had been formulated more than two years ago with the technical assistance of the ILO concerning a pension fund for workers and the democratization of the economy, be adopted without any delay in order to ensure that all trade unions could enjoy the right to manage the unemployment compensation fund.

As regards the prohibition on foreigners from holding office or exercising authority in trade unions contained in section 60 (2) of the Constitution, the Workers' members reiterated the position that they had adopted in 1993 and once again requested the Government to re-examine the question so that workers could freely elect their representatives, in full conformity with the provisions of the Convention.

As regards the limitations on the right to strike, they recalled the conclusions adopted by the Committee of Experts in paragraphs 158 and 159 of the 1994 General Survey on Freedom of Association and Collective Bargaining, in which it was stated that the right to strike should not be subject to any restrictions or prohibitions in the public sector, with the exception of civil servants exercising authority in the name of the State or in essential services, in the strict sense of the term, namely services that could endanger the life, safety or health of the population if they were disrupted. As the Committee had stated, they considered that transport services in general were not essential services in the strict sense of the term. They stressed that the Government should take all necessary measures to eliminate all limitations on the right to strike in the public sector, as well as in the agricultural, stock-raising and forestry sectors. They hoped that the Government would in the near future adopt draft legislation on public services which contained limitations on the right to strike in accordance with the observations formulated by the Committee of Experts and this Committee.

Finally, while they noted that several draft legislations covering a number of issues raised by this Committee in 1993 had been prepared with the technical assistance of the ILO, they were very concerned about the delays encountered, as well as the contradictory practices, which could hinder the effective implementation of the Convention. They emphasized the fact that the Government should take the necessary measures in order to solve the problems raised by the Committee of Experts. In this context, it was essential that the new information provided by the Government's representative be transmitted to the Committee of Experts for complete analysis. The Conference Committee should consider re-examining this case at its next session.

The Employers' members thanked the Minister of Labour of Costa Rica for his extensive and clear comments. When the case had been considered by the Conference Committee in 1993, it had had to deal with a larger number of individual points raised by the Committee of Experts. The fact that this list had shortened gave grounds for believing that there was less to be criticized. Indeed, in 1994, the Committee of Experts had placed Costa Rica on the list of cases of progress in relation to the Convention.

With regard to the prohibition upon foreigners from holding office or exercising authority in trade unions, the Employers' members acknowledged that this constituted a restriction of the freedom of workers and trade unions to organize their own activities. Although the Minister had described the historical reasons for the measure, he had also indicated a readiness to adopt reforms and to request technical assistance from the ILO. It could therefore be assumed that changes would be made in this respect.

Concerning the prohibition upon exercising the right to strike in the public sector and in the agricultural, stock-raising and forestry sectors, the Minister had also provided extensive explanations. The Employers' members noted in this respect that certain changes had been introduced in practice and had been examined by the Constitutional Court to determine their conformity with relevant provisions of the Constitution. However, the country did not have uniform regulations applying to all cases of strikes and lockouts. On the question of whether the transport sector was an essential service, the Employers' members emphasized the differences between the various member States, with their varying structures, levels of development and types of economy. The situation could not therefore be judged in a uniform manner. With regard to the question of strikes in the public sector, they noted that the employer in such cases was the State, which normally appeared to be the stronger party. However, in many cases the State was in practice the weaker party. The category most affected by strikes in the public sector was the population as a whole, which could be held hostage by public sector workers. It was for individual States to draw up the necessary limitations in order to achieve a good balance as regards strikes. Since the Convention and other related international instruments set out only general principles, without any detailed provisions, the principles in question had to be applied by each State according to its national situation. The Employers' members were encouraged by the readiness expressed by the Minister to adopt changes and adjust to the criticisms of the Committee of Experts. Further improvements could therefore be expected. Much of what had been criticized in this case could be explained by the historical background of Costa Rica, with the State holding particularly widespread monopolies in many areas. This had been changed gradually, but in some areas the labour legislation had not been fully adapted. It would appear that Costa Rica was set on the right path and realized that the internal discrepancies in its regulations relating to freedom of association needed to be resolved. In this respect, the Employers' members noted that it was the practice of the Conference Committee to re-examine the cases on which it reached its own conclusions. This had the effect that many cases came up before the Committee year after year. However, the Employers' members believed that cases such as the present one would not require re-examination at the next session of the Conference Committee and that further action should depend on the comments of the Committee of Experts in its next regular report on the case.

The Workers' member of Costa Rica supported the statements of the Workers' members. In Costa Rica, strikes were forbidden in the public sector and collective bargaining did not exist. In the last 50 years, only twice had strikes been declared legal in sectors in which strikes were permitted by the legislation. Even where a strike was legal, such as in the case of LACSA, situations were reached in which workers were dismissed, collective agreements abrogated and legal proceedings were still pending five years after the event. The Government had not followed the recommendations of the direct contacts mission or of this Committee, which had requested it to let trade unions manage their pension funds themselves (forbidden by Act No. 7360). The few concessions which had been granted to the trade unions were the result of the action of the AFL-CIO, which had requested the United States authorities not to grant trade benefits to Costa Rica. Finally, he referred to Report No. 305 of the Committee on Freedom of Association concerning the case of FERTICA SA Workers' Association, which involved anti-trade union dismissals of hundreds of workers. The Committee on Freedom of Association had expressed its concern at the delays and lack of effectiveness of procedures in a considerable number of cases. These deplorable delays in so many cases had to be reduced. He wondered whether the future would bring about the disappearance of the trade union movement in view of the fact that neither direct contacts missions nor ILO technical assistance had succeeded in changing the attitude of the national authorities.

The Workers' member of Argentina recalled that the Government of Costa Rica had undertaken to bring its legislation into conformity with the provisions of the Convention. The Labour Code prohibited the exercise of the right to strike in the public sector, as well as in the agricultural, stock-raising and forestry sectors. The Government had indicated the existence of draft legislation to modify the current legislation. However, it was regrettable that the statements of the Government showed its intention to maintain these legal restrictions. Strikes were the most legitimate weapon available to workers. It was for this reason that the concept of "essential services" needed to be structured and limitative. The ending of discrimination against public sector workers had been difficult for the ILO to achieve in view of the reluctance of governments to accept freedom of association and collective bargaining. Conventions Nos. 151 and 154 clearly illustrated the workers' struggle to obtain equal treatment in the field of fundamental rights. These Conventions, with few exceptions, were applicable to all workers in the public sector. It was for this reason that the Government of Costa Rica needed to abrogate all provisions which restricted the right to strike, and which limited the full application of the principles of freedom of association and collective bargaining. Nevertheless, the existence of legislation was not sufficient: practical agreements were needed for the effective exercise of trade union rights. The Government should provide information on the issues raised and demonstrate as soon as possible that the rights contained in the Convention were guaranteed in the country. He noted that the statement of the Employers' members on the right to strike in general was out of place. The value and legitimacy of the right to strike as a means of defending and promoting workers' rights could no longer be questioned. In certain situations, strikes were the only means available to workers to defend their rights. Experience from the world over showed that workers knew when and how to use this right. Of course, there had been periods when this right had been repressed, but it was useless today to try to restrict it, despite the current trend towards globalization. He stressed the fact that the workers of the European Union and of MERCOSUR had clearly shown over the past few years that the exercise of the right to strike was the only way for them to make their voice heard.

The Workers' member of the United States reminded delegates that those who did not learn from history were doomed to repeat it. In the case of Costa Rica, it was the Government which had not learned from history, but the Costa Rican labour movement and the workers that it represented who had been doomed to the repetition. Costa Rica had been no stranger to the Committee on Freedom of Association, with over 40 complaints filed against it since 1967. Ironically, Costa Rican labour law had undergone certain reforms, although much of the long-standing law had been interpreted and enforced in an even broader manner, rendering the violations of the Convention even more chronic. With regard to the prohibition upon the right to strike in the public sector, the Committee of Experts made particular reference to the air transport sector and had called for the prohibition to be limited to public servants exercising authority in the name of the State or in essential services in the strict sense of the term. The Committee of Experts had hoped that the Costa Rican Government would take steps to eliminate the broad prohibition placed on the trade union leadership role of foreigners and the prohibition of strikes in the public sector, and in the agricultural, stock-raising and forestry sectors. However, the matters covered by the Committee of Experts only constituted a fraction of the problems related to freedom of association in the country. It remained virtually impossible to create a trade union in the private sector, including the nine export processing zones in the country, because trade union activitists were constantly dismissed and blacklisted without any effective protection. As a result, collective bargaining was becoming almost non-existent in the private sector. The prohibition of the right to strike in the public sector only therefore formed one part of a much broader problem. In practice, strikes were banned in about 65 per cent of the manufacturing and service sectors which were designated as being of public interest. In addition to the sectors mentioned by the Committee of Experts, the ban on strikes effectively included insurance, banking, oil and related industries, electricity, water, communications, cement, education and health care. Not surprisingly, only two strikes had been declared legal in the country over the last 50 years. It was no secret that the Costa Rican Government had actively opposed any linkage and conditionality as regards labour rights in the trade integration process. The question therefore arose as to whether Costa Rica would respect the ILO and its supervision process. He hoped that the Government could learn from history and begin to take seriously the conclusions contained in the report of the Committee of Experts, despite the fact that these conclusions did not address the entire crisis as regards freedom of association in the country. He therefore implored the Government to stop the victimization of Costa Rican workers and to ensure that a sad history did not repeat itself.

The Workers' member of Colombia noted that the Committee was confronted with a very clear case of the violation of the Convention by the Government. He recalled that it was a common feature in Latin America to prohibit non-national workers from holding office or exercising authority in trade unions, as well as to prohibit strikes in the public sector. He noted that the trade union movement had always criticized policies which seriously infringed freedom of association. In the present case, however, the violation of the Convention was more serious, since strikes were also prohibited in the agricultural, stock-raising and forestry sectors, and in air transport. Workers could not remain passive with regard to such provisions, which seriously violated trade union rights. He recalled that strikes were never an end in themselves, but rather the ultimate means available to workers when confronted with the intransigence of governments or employers. Finally, he emphasized that the Committee on Freedom of Association had, on numerous occasions, reiterated that the right to strike was an inherent element of freedom of association and that it had developed the concept of essential services with a view to determining the cases in which the right to strike could be restricted or prohibited. International Conventions should be applied in good faith and national law should not be invoked, as the Government of Costa Rica had done, to justify a prohibition which covered all public services.

The Workers' member of Greece shared the opinion expressed by some speakers that some legal progress had been made since 1993. However, these interventions, as well as the observations of the Committee of Experts, also highlighted serious problems of application of the provisions of the Convention. He was of the opinion that this case should be evaluated in the next report of the Committee of Experts in order to decide whether it should be re-examined by the present Committee. As regards the restrictions on the right to strike, he noted that the Government representative had stated that this right applied to all workers employed in non-essential services. He considered, however, that the right to strike should be universally recognized and that, on the question of the services to be maintained, the trade unions always displayed a sense of responsibility, as they were fully aware of the importance of public support for the success of any strike action. The services that were essential should not be determined unilaterally by the Government, but through negotiations with the trade unions concerned.

With regard to the prohibition upon foreigners from holding office or exercising authority in trade unions, under article 60 (2) of the Constitution, it was difficult to comprehend the attitude of governments, including that of the Government of Costa Rica, many of whose populations lived and worked abroad. He recalled that Europe had experienced a significant level of migration in the aftermath of the Second World War and that several immigrants now held key positions in the trade unions of their countries of residence. This involvement facilitated their integration and permitted them to take part fully in the economic and social development of their new country. He expressed the firm hope that the Government would take all necessary measures to abolish the prohibition upon foreigners from exercising authority in trade unions.

The Workers' member of Germany noted that some progress could be discerned in this case. However, he still entertained great doubts as to whether the situation in Costa Rica was in conformity with international public law. Just as in the past, there continued to be serious violations of the Convention, with a core group of workers denied one of their fundamental rights. In particular, the concept of essential services in the country was interpreted in a very broad and arbitrary manner by the Government, resulting in a misleading and abusive interpretation of the categories of workers covered by this term. The facts of this case made it clear that it could not be left to each individual State to set its own limits in this respect. If the approach referred to by the Employers' members, under which the concept of essential services would be interpreted differently from country to country, were to be applied in practice, this would amount to a denial of this core Convention. The Convention should be interpreted in a uniform manner in accordance with the usual jurisprudence. He therefore supported the interpretations of the Committee of Experts, and their references to the work of the Committee on Freedom of Association, which had been extremely helpful in developing a definition of essential services. Care would need to be taken in future to ensure that such services were interpreted in a restrictive manner. He therefore appealed to the Government to apply the spirit and letter of the Convention in its law and practice. He recalled in this respect that the right to strike was a universal right and should not be limited in the case of categories of workers who were employed by the State.

The Government representative of Costa Rica distinguished between the remarks made during the discussion by the Employers' and Workers' members, and those made by individual Workers' members. He thanked the Employers' members for the considered manner in which they had discussed his intervention. They were the true guarantee of how the work of the Organization should be handled if it were to be successful. The strength of the Organization lay in tolerance and respect for the points of view expressed by all parties. He hoped that such respect would continue and would constantly strengthen the ILO.

However, certain Workers' members of Costa Rica did not appear to understand what was meant by the rule of law. He specified that the rule of law guaranteed what was known in legal commentary as due process, which meant the possibility for all the parties to fully state their case before a decision was reached. If matters were not resolved with the rapidity desired by many, this was due to the fact that the various parties, but not the Government, raised preliminary motions which delayed the proceedings. This so-called delay was necessary for reasons of due process. If due process were not observed, the parties would subsequently be able to complain that their right of defence had been violated. Both workers and employers benefited from the guarantees provided by due process that their points of view, evidence and propositions would be taken into account in all the solutions that were reached. In this respect, he noted that, in accordance with the recommendation of the Committee on Freedom of Association in Report No. 305, an expression of his concern at the time taken to resolve matters before the labour courts had been transmitted to the President of the Supreme Court. The President of the Supreme Court had in turn transmitted that concern to the labour courts, which would take the necessary measures. However, it was not for the Executive Authority to instruct the President of the Supreme Court or the Judicial Authority as to the action that should be taken. He respected the independence of the different powers in the Republic, which was another basic element of democracy.

He informed the Committee that one of the Workers' members of Costa Rica had described a situation that did not exist in his country, thereby giving an erroneous impression of the real situation. His country was about to complete three years of absolute industrial peace, based on constant dialogue with the representatives of workers and employers. Just last week a wage increase of between two and three points above the level of inflation for all workers in the private sector had been negotiated with the trade union federation presided over by the same Workers' member. This was a good illustration of the industrial climate in his country. He added that the trade union movement had the right to bring all of its concerns before the Supreme Labour Council, which was composed of three trade union representatives, three representatives of employers and three Ministers. The Workers' member in question and his representative on the Supreme Labour Council had never referred to the matters that he had raised in this Committee.

On the question of the rapidity with which draft legislation was examined, he stated that the political situation of the country and its democratic system made it obligatory to submit draft legislation to Parliament, which was composed of representatives of the various sectors of society. The legislation was then discussed in Parliament in order to reach an agreement. Matters would not be resolved in his country by means of force. By way of illustration, in the case of the Bill to transform the subsidy for termination of employment, the stimulus had come from the political movement that was currently in power. There had been almost no participation by the trade union movement. The fact the Bill had not yet been adopted had not been due to the lack of political will by the Government, but to matters related to the internal workings of Parliament, which was sovereign in this respect. The Government's influence had been important, but not decisive. Being misinformed about this process meant that those concerned were not aware of how a fundamental institution of a democratic system functioned.

As regards the restrictions placed on foreigners, he stated that Costa Rica had shown its solidarity by receiving non-nationals who accounted for over 15 per cent of its economically active population. In accordance with the Political Constitution of Costa Rica, non-nationals had to be given housing, education and free health, even if they were not legally resident. The Government had given migrants the opportunity to obtain a work permit in order to regularize their work situation, even if their migratory status were not resolved. The Costa Rican people had given ample proof of its solidarity towards foreigners throughout its history. Its legislation would be brought up to date, as stated in this Committee today.

In conclusion, he supported the concept of international labour law covering labour matters, even within the countries of the region, as he had stated in interventions on the Report of the Director-General.

The Workers' members endorsed the opinion expressed by the Employers' members that some prudence was required in determining the cases to be examined next year. However, they recalled that, in the case of Costa Rica, their proposal was limited to the Committee envisaging such an examination if it considered it appropriate. They also agreed with the evaluation of the Employers' members that some progress could be observed on a number of issues which had already been discussed by this Committee. However, they expressed serious reservations as regards the two issues raised by the Committee of Experts in its observation. The additional information provided by the Government representative might indeed reveal positive developments, as indicated by the Employers' members. But this case required detailed and in-depth examination by the Committee of Experts. Finally, they urged the Conference Committee to request the Government to adopt draft legislation as soon as possible that was in conformity with the Convention, as well as the necessary measures to ensure its implementation in practice.

The Committee took note of the detailed information provided by the Minister of Labour and observed that, in spite of the direct contact missions to the country which had taken place in 1991 and 1993, the Committee of Experts observed that significant differences still remained between, on the one hand, legislation and national practices, and the provisions of the Convention on the other. The Committee hoped that the Government would adopt the necessary measures so that the prohibition on foreigners from holding office or exercising authority in trade unions would be eliminated, as well as the serious limitations imposed on the right to organize in the public sector, and in the agricultural, stock-raising and forestry sectors. The Committee took special note of the statement made by the Minister of Labour of Costa Rica who requested technical assistance from the ILO. It hoped that this technical assistance would be given rapidly so that the Committee of Experts would be able to verify that substantial progress had been made in the application of this fundamental Convention.

Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

The Government supplied the following information:

1. The Government has taken legislative measures to:

(a) guarantee that solidarist associations do not become involved in trade union activities. During the current ordinary session of Parliament, the Government has asked the official parliamentary fraction to give priority to the steps leading to the adoption of Bill No. 11273, which adds a paragraph (d) to section 8 of Act No. 6970 (Act on Solidarist Associations) and which specifically prohibits these associations from participating directly or indirectly in collective bargaining of an occupational nature. This legislative measure responds specifically to the recommendations made by the Committee on Freedom of Association in its conclusions relating to Case No. 1483.

(b) guarantee effective protection against all forms of anti-union discrimination. In August 1991, the Government had requested technical assistance from the Director-General of the ILO, to improve and update its labour legislation, particularly in the field of protection against anti-union discrimination. In response to this request, an ILO expert carried out an exploratory mission from 31 March to 10 April 1992 in order to evaluate the actual situation. The said expert drew up a report containing a series of proposals relating to draft legislation on trade union guarantees. After this mission, the assistance of the ILO was requested in order to organize a visit by an official from the Labour Law and Labour Relations Branch of the ILO. This visit was carried out for a week starting on 2 April 1993 and ended with positive results.

During the visit, the draft texts that the Government had decided to submit to Parliament were also presented to this official. The texts in question are the following:

(i) a Bill repealing sections 333 and 334 of the Penal Code, which was approved by the Legislative Assembly and will soon be signed by the President of the Republic so as to enter into force;

(ii) a Bill amending several sections of the Labour Code as well as the Organic Law of the Ministry in order to update fines. The Government attaches as an annex the positive opinion of the majority in the Commission of Legal Affairs. The Bill was approved by the Legislative Commission and will be examined during the current session of the Legislative Assembly;

(iii) a Bill on public employment, proposed by the Government, which is currently the object of bilateral negotiations with the trade unions;

(iv) a Bill on unemployment funds and economic liberalization, which has been submitted by the Government for the current session of the Legislative Assembly;

(v) a Bill on unfair labour practices and the supervision of trade union rights, which will be treated by the bilateral Commission made up of government and trade union representatives.

All these draft Bills have already been studied by the competent services of the ILO whose comments and proposals, which were received on 19 May 1993, were transmitted to the parties involved in bilateral negotiations and to the Legislative Commissions. Within the framework of the continued technical cooperation between the ILO and the Government, a visit by an official of the Labour Law and Labour Relations Branch has been fixed for next July in order to complete the revision of labour legislation which has an emphasis on protection against anti-union discrimination.

(c) guarantee the elimination of all inequalities of treatment between solidarist associations and trade unions. As indicated in the preceding paragraph, the Government has submitted to the Legislative Assembly a Bill on unemployment funds and economic liberalization which changes the compensation to be paid in case of dismissal into a real right by conferring on trade unions the competence to manage the funds originating from such dismissals and by attributing to them the same function as that attributed to solidarist associations. Moreover, a Bill, which intends to put solidarist associations and trade unions on an equal footing by providing for the same minimum number of workers necessary to form these organizations, will soon be submitted to the legislative authority.

2. The right of trade union leaders to hold meetings on plantations

Following the visit by the ILO Regional Adviser for Standards with the aim of providing assistance to implement the steps taken by the Ministry of Labour to improve the labour law, a first version of a Ministerial Directive was drawn up. This text takes account of the requests made by the Committee of Experts in that a provision guarantees trade union leaders the right to hold meetings in workplaces, including on plantations. On 15 April 1993, the Minister signed a Directive which binds the labour administration authorities so as to guarantee to workers and their representatives the right to hold meetings in workplaces.

3. The right to strike of trade unions

The Government has supplied the text of the preliminary version of the Act on conditions of service of the public and civil services. Title VI of this text regulates strikes in public services by incorporating the doctrine of the Committee of Experts relating to the conditions in which strikes can be prohibited and restricted (sections 91, 92 and 93).

4. Prohibition on foreigners from holding office or exercising authority in unions

The Government repeats that the prohibition in question originates from article 60 of the Constitution, which makes it difficult for the Government to make the required amendments.

5. Right to organize of workers in small agricultural and stock-raising enterprises

The Government states that since 30 November 1992, procedures have been initiated to repeal paragraph (c) of section 14 of the Labour Code. The Bill has been sent to the President of the Republic and its was decided to transmit this text to the ordinary session of Parliament that has just started.

In addition, a Government representative, the Minister of Labour and Social Security, expressed his profound respect for the supervisory machinery of the ILO and emphasized the importance he attached to the sending of reports, although in this particular case the Government's report had not been received for inexplicable reasons. In order to solve this problem it was appropriate to refer to the written information sent by his Government to the reports of November 1992 of the Regional Adviser for Standards and of the Advisory Mission on Labour Legislation undertaken in April 1992 by an ILO expert, as well as to the comments transmitted to his Government by the Labour Legislation Service of the ILO and by the ILO Office for Central America in May 1993. These documents showed the efforts made by his Government to comply with the recommendations of the Committee on Freedom of Association in the case concerning the legislation and practice on solidarist associations and their impact on the situation of trade union organizations. The Government had agreed to comply with these recommendations as well as with similar recommendations formulated by the Committee of Experts. To this end, the Government had made progress in two domains: on the one hand, the Government had started a tripartite consultation on matters which called for negotiations between the Government and organizations of employers and workers, and on the other hand, it had started bilateral negotiations with the trade unions on matters which required their agreement. The result was the submission to the Legislative Assembly of several Bills (of which the ILO had received copies which reflected the recommendations of the Committee of Experts in such a way as to make them effective under national legislation. The Committee of Experts had given an excellent definition of solidarist associations. This institution constituted part of the cultural and democratic tradition of Costa Rica where there was complete exercise of freedom. The Government representative urged the ILO to continue its support, assistance and advice in order to bring about a revision of labour law currently under discussion before the Legislative Assemby. He undertook to send on a regular basis reports containing detailed information on progress achieved to give full effect to the recommendations of the Committee of Experts so that his country could reach a situation which was in full conformity with international standards on freedom of association.

The Workers' members, while appreciating the considerable amount of written and oral information provided by the Government representative, felt that all this needed to be transferred into laws which in turn needed to be examined by the Committee of Experts. First of all, although they had no objections to any informal organization which promoted social harmony, they would however have objections if organizations such as solidarist associations replaced the traditional trade union functions and the employer functions in a country.

Referring to the information provided by the Government according to which there would be an amendment to the Act on solidarist associations which would specifically prohibit those associations from participating directly or indirectly in collective bargaining of an occupational nature, they stated that this would go some way towards satisfying their worries, if this was what the law was actually going to say. However, concern was expressed at the fact that a Bill was under way to put solidarist associations and trade unions on an equal footing. Therefore, further clarification was required on this aspect of the case. Regarding draft legislation to guarantee adequate protection against all forms of anti-union discrimination, the right of trade union leaders to hold meetings on plantations, the right to strike of trade unions and the right to organize of workers in small agricultural and stock-raising enterprises, the only way to ensure that these Bills were in conformity with the Convention was to submit them to the Committee of Experts for its examination. A problem arose regarding the prohibition on foreigners from holding office or exercising authority in unions since the Government stated that the prohibition in question originated from article 60 of the Constitution, which made it difficult for the Government to make the required amendments. It was hoped that the Government would reconsider this point since foreigners who took a prominent part in trade union activities provided a fresh focus on trade union problems, as demonstrated in other countries.

The Employers' members also referred to the five aspects of this case. With respect to solidarist associations, these were unacceptable if they were supported and financed by the employers since they were no longer independent. Regarding the right of trade union leaders to hold meetings on plantations, it was pointed out that, although there had to be an opportunity for trade union representatives to meet either on a plantation or elsewhere, this right could not be construed from Convention No. 87. The same reasoning was applicable with respect to the right to strike of trade unions, whose interpretation by the Committee of Experts could not be construed from the Convention. However, the complete prohibition on foreigners from holding office in unions constituted interference in the internal affairs of a union as stated by the Experts, and the legislation had to be more flexible on this point. Finally, with respect to the right to organize of workers in small agricultural undertakings, which in fact concerned the larger question of the minimum number of members required to establish an organization, the Employers' members were of the view that this was a matter of concern for the organization only. In conclusion, the Employers' members associated themselves with the request from the Workers' members that there should be a detailed written report from the Government so that the Experts could analyse what changes had indeed taken place.

The Workers' member of Costa Rica refuted the arguments put forward by the Government representative by indicating that the Costa Rican Government regularly violated its obligation of sending reports, which was especially serious under Convention No. 87. The draft legislative text of the Government could turn out to be worse for the interests of workers than the actual situation. In such a case, his organization would not hesitate to lodge a new complaint of violation of freedom of association in Costa Rica before the competent supervisory bodies of the ILO. The legislative initiatives of the Government seemed to have the objective of putting solidarist associations on an equal footing with trade unions which could lead to an even more unfavourable situation. According to the draft text of the Government, solidarist associations would be recognized as "workers' organizations" designed to be of "public and social interest". This draft text should be drastically amended in order to comply with the recommendations of the Committee of Experts. In particular, sanctions should be provided for against solidarist associations in cases where they exercised activities which were of the exclusive competence of trade unions. Regarding the right of trade union leaders to hold meetings on plantations, this situation did not require any legislative measure since the legal exercise of such a right in practice was guaranteed by the national Constitution as well as by the ratification of this Convention. Regarding the right to strike of trade union organizations in public services, he stressed that the draft legislative texts constituted a regression for employees in the public sector. The right to strike in Costa Rica was ridiculous and the notion of "public service" should be redefined. The prohibition on foreigners from holding office or exercising authority in unions could without any inconvenience be lifted by a revision of the Constitution which would allow foreign workers to exercise their legitimate trade union rights. As for the right to organize of workers in small agricultural and stock-raising enterprises, he agreed with the Committee of Experts on the need to modify the legislation in force. Consequently, he urged the Government to send reports regularly on the application of the Convention and to ensure that these reports contained detailed and correct information on the conditions in which trade union rights were exercised in his country.

The Workers' member of Colombia indicated that this was a case of a flagrant violation of the Convention. The observation of the Committee of Experts revealed that in Costa Rica a sophisticated system was elaborated to eliminate the trade union movement, limiting the right to strike in the public sector, limiting the right to organize for certain categories of workers and imposing the solidarist associations to hamper the trade union movement. The draft laws presented by the Government did not offer sufficient guarantees because in many cases they represented a slip backwards for workers' rights, as was happening in other countries of Latin America with the latest reforms of labour laws. He referred to a case in March 1993 in which a representative of the Costa Rican workers, present at this session of the Conference, was dismissed from the Ministry of Education after having had his leave for union activities withdrawn. He urged the Committee of Experts to examine in depth the effects of solidarist associations and their negative impact on the trade union movement.

The Workers' member of Argentina stated that the unions were not too opposed to the mutualist system, but that a clear distinction should be made between the activities of workers' organizations and those of mutual associations. He expressed a firm hope that the trade unions and the solidarist associations should be clearly differentiated in national legislation and in national practice. They could not be equally treated, in particular in defending the workers. The next missions from the Office to Costa Rica should ensure with clarity that the principles of tripartism and freedom of association were being upheld.

The Workers' member of Nicaragua stated that the opposition was not made to the solidarist associations but to the anti-trade union practices which derived from their activities. The establishment of solidarist associations had contributed to the disappearance of the most combative trade unions, in particular in the banana plantations. Moreover, the solidarist associations had also affected the existence of other unions. Solidarism was a practice of neo-liberalism which contributes to the destruction of trade unions in all the Central American area. The philosophy of solidarism was summarized by a Costa Rican entity as "The wolf dressed in the sheep skin", that is to say the trade unions were no longer necessary, that recourse to strikes was obsolete and that wages should be determined by the good will of the employers. The Office and the Committee of Experts should analyse seriously the experience of the solidarist system in other Central American countries, given the harmful effects on the trade unions in that area.

The Employers' member of Costa Rica stated that the employers' organizations were open to dialogue. The information transmitted by the Government clearly reflected the situation in his country. In the framework of the Superior Council of Labour, the problems treated in this case had been dealt with. The Government had made a compromise in October 1992 to the unions without consulting the employers' side which, in his opinion, went further than what was recommended by the ILO. In Costa Rica, there was the social peace, in the consolidated and stable democratic framework ensuring the education, housing, health and social security of the population. Solidarism was a movement authentically Costa Rican, regulated by a law which had been sanctioned by eminent national trade unionists. The workers could freely opt between the trade union and solidarism. Even though the strike was prohibited in the public service, strikes were exercised in the essential services -- in the sectors of social security and of transport -- without dismissal or sanctions. In Costa Rica there was no persecution of trade unions, on the contrary it had offered asylum to foreign trade unionists who could enjoy the climate of freedom in the country. The trade union movement was fragmented and divided by the lack of objectives for the workers' class -- in contrast with the solidarist associations. This situation is not due to the State or to the employers. He regretted that the Government's report on the application of the Convention had not arrived in time, but hoped that the situation would soon be mitigated. He hoped that the next missions from the Office could assist in the revision of the labour legislation in the sense of recommendations of the Committee of Experts. In the meantime, the Conference Committee should take note with special interest of the major progress in the transformation and improvement of labour legislation which had taken place in his country.

The Workers' members stressed the relevance of the information provided by the Government that the legislation would be modified in accordance with the comments made by the Experts. They suggested that the contact with the ILO expected in July should be converted into a direct contacts mission. They hoped that the relevant legislation, whether in draft form or as enacted, would be submitted for a thorough examination by the Committee of Experts.

The Employers' members stressed that the issue was not about the word "solidarist" but about the fact that anti-trade union activities took place, such as associations being initiated and financed by employers and enjoying certain preferences laid down in the law. As regards the five points raised, they recalled that different views existed regarding the right to strike and the question of meetings of trade union leaders; on the other hand, they saw a clear violation of the Convention in the prohibition of foreign workers' involvement in unions and in the total prohibition of the right to form unions in small enterprises.

The Government representative, the Minister of Labour and Social Security, took note of the observations made by the members of the Conference Committee, and with particular interest of the statements by Workers' members. The Workers' members made valid and correct statements which highlighted the problem in its real dimension. He recalled that the draft legislation had been submitted to the Legislative Assembly for discussion and approval. These texts had been communicated to the Office and would be submitted to the Committee of Experts to be studied and their contents commented upon. The Government was in a position to uphold all the decisions that the social partners agreed upon in consensus both in the Superior Council of Labour -- a tripartite body where these themes were discussed -- and in the Legislative Assembly. What would not be accepted by the workers and employers would not be guaranteed as decisions. What could be improved should be improved, as had been stated by the Chairman of the Committee of Experts in his statement during the general discussion. He accepted the proposal by the Workers' members that the question should be treated by a direct contacts mission.

The Committee noted with interest the adherence expressed by the Minister of Labour to the supervisory system of the ILO. It also noted that the multidisciplinary teams would allow the improvement of dialogue between the Government and the supervisory organs. The Committee took note of the detailed written and oral information submitted by the Government representative in relation to the points which had been discussed for years, regretting nevertheless that the report supplied by the Government was not sent soon enough to be examined by the Committee of Experts. The Committee took note, with interest, of the information supplied by the Government according to which various Bills had been drawn up with the technical assistance of the ILO so as to bring the legislation more closely into conformity with the Convention. The Committee observed, nevertheless, that the Government was still not in a position to guarantee to foreign workers that they would have access to trade union office, at least not until they have fulfilled a certain residency period in the country, to meet the wishes of the Committee of Experts, since foreigners were not allowed to hold office or exercise authority in unions by virtue of the Political Constitution. The Committee hoped that the Committee of Experts would be able, in the very near future, to make a thorough assessment of the draft legislation drawn up in collaboration with the Office. Since these matters had been a cause for concern on the part of the Committee of Experts, the Committee trusted that it would be able to note decisive progress with regard to the whole of the law and practice as regards all the aspects outstanding in the very near future. As concerns in particular the solidarist associations, the Committee took note with special interest of the fact that the Government would take all the necessary measures to ensure that these associations did not take over trade union activities (including collective bargaining, through direct arrangements concluded between an employer and a non-unionized group of workers). The Committee also noted with interest that the Government had requested technical assistance from the Office and had no doubt that the Government would receive all the help it needed to resolve very rapidly the problems still outstanding. The Committee noted with interest the Government's statement to the effect that it was going to request a direct contacts mission in connection with the application of this Convention and, in particular, the question of solidarist associations. The Committee hoped that this mission would be able to take place in the very near future.

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

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Article 3. Right of organizations to freely organize their activities and formulate their programmes. The Committee recalls that for years it has been indicating to the Government the need to remove the prohibition of the right to strike from workers engaged in rail, maritime and air transport enterprises and workers engaged in loading and unloading on docks and quays established under section 376(c) of the Labour Code. In its previous comments, the Committee noted that Act No. 9808 on the provision of legal security during strikes and associated procedures of 2020 amended section 376 of the Labour Code and noted that:

• the amended version of section 376 of the Labour Code contains a list of essential public services where strike action is prohibited and that some of these do not constitute essential services in the strict sense of the term, such as transport services in general, including rail and sea transport, loading and unloading services for perishable foodstuffs, pharmacies, scheduled medical appointments and care, and fuel distribution. The Committee notes the Government’s indication that the legislative file that issued Act No. 9808 was examined by the Constitutional Chamber of the Supreme Court of Justice and that the Court found that rail and sea transport, loading and unloading services on docks and quays of perishable foodstuffs in the public economy justified the classification of essential services. While taking due note of the foregoing, the Committee recalls that while what is meant by essential services in the strict sense of the word depends to a large extent upon the particular circumstances in each country, the definitive criterion for the classification of essential services in the strict sense is the existence of a clear and present threat to the life, safety or health of all or part of the population. Furthermore, in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, consideration might be given to ensuring that users’ basic needs are met or that facilities operate safely or without interruption, the introduction of a negotiated minimum service, as a possible alternative to a total prohibition of strikes, could be appropriate (see the 2012 General Survey on the fundamental Conventions, paragraph 136).
• the amended version of section 376ter of the Labour Code lists services of vital importance conditional upon the provision of minimum services defined through an agreement between the parties and, following a period of 10 days of strike, if no agreement resolving the conflict is reached, the matter is referred for binding arbitration. The Committee considers that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable under certain circumstances, namely: (i) when the two parties to the dispute so agree; or (ii) when the strike in question may be restricted, or even prohibited, that is: (a) in the case of disputes concerning public servants exercising authority in the name of the State; (b) in conflicts in essential services in the strict sense of the term; or (c) in situations of acute national or local crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation. Accordingly, the existence of protracted disputes and the failure of conciliation are not per se elements which justify the imposition of compulsory arbitration (see the 2012 General Survey on the fundamental Conventions, paragraph 153).
• the Act classifies the loading and unloading of medicines, medical supplies or equipment and perishable goods as essential services and the loading and unloading of other goods on docks and quays as services of vital importance. The Committee recalls that it would be possible to establish a minimum service for all loading and unloading services in docks and quays that would ensure public access to medicines and medical equipment.

The Committee also expressed its unease in relation to the amendments introduced by the Act to the following provisions of the Labour Code:

• section 371, imposing a maximum duration of 48 hours for strikes held in protest against public policies, whenever these have a direct impact on the economic and social interests of workers;
• section 378, according to which a strike may under no circumstances be repeated for the same reasons as a previous strike; and
• section 661 bis, which provides that, in cases where the strike has been held in non-essential public services and has been declared legal, if eight calendar days have elapsed from the date of that declaration without the parties resolving the conflict, or at least reaching an agreement to set it aside while continuing negotiations, the employer may request the court to suspend the strike if it establishes reliably that the strike is causing serious harm to the public that would be difficult or impossible to repair. The Committee recalls that the suspension of a strike should be limited to situations in which a non-essential service becomes essential, insofar as the duration or scope of the strike endangers the life, personal safety or health of the whole or part of the population (see the 2012 General Survey on the fundamental Conventions, paragraph 131).

The Committee notes that both the Government and the Costa Rican Union of Chambers and Associations of Private Enterprises highlight that the enactment of Act No. 9808 was preceded by broad public and private debate, as well as consultation with the workers and employers, and that it passed the respective preliminary constitutional checks. Despite this, the Government indicates that once the Act entered into force, several trade unions brought claims of unconstitutionality before the Constitutional Chamber, which are pending decisions. The Government also notes and welcomes the possibility of receiving the technical assistance of the Office aimed at contributing to the full conformity of the legislation with the Convention. The Committee takes due note of this information. The Committee also notes that the Confederation of Workers Rerum Novarum, the Costa Rican Confederation of Democratic Workers, the Costa Rican Workers’ Movement Central, the General Confederation of Workers, the Workers’ Unitary Confederation and the Unity in Trade Union Action reiterate that, with regard to the right to strike, Act No. 9808 is severely regressive and violates the Convention. The Committee reiterates its request to the Government that, in the light of the foregoing comments and in consultation with the social partners, the Government will take the necessary measures to ensure the conformity of the above-mentioned provisions with the Convention. The Committee requests the Government to report on any developments in this respect. The Committee hopes that the Government will receive the above technical assistance of the Office, and requests that the Government provide information on the decision of the Constitutional Chamber with regard to the above-mentioned claims of unconstitutionality.

Application of the Convention in practice. Having noted allegations from trade union confederations of violations of the trade union rights in the pineapple and banana sectors, the Committee has encouraged the Government to ensure that the Labour Inspectorate continues to carry out inspections in those sectors to enforce trade union rights. The Committee notes the statistical information provided by the Government showing that infringements were detected in 50 per cent or more of the 71 inspections in the pineapple sector and the 82 inspections in the banana sector conducted in 2022–23. While noting this information, the Committee observes that the trade union confederations reiterate their serious concerns and highlight that: (i) it is virtually impossible to obtain rights for worker representation for a union on banana or pineapple plantations; (ii) labour inspections are carried out infrequently or further to prior notice to the enterprise, all with the consent of the Ministry of Labour and Social Security; and (iii) the Labour Inspectorate does not do any preventive work in the area of freedom of association. The Committee takes due note of the concerns expressed and requests the Government to ensure that the Labour Inspectorate continues to conduct inspections in the pineapple and banana sectors to enforce trade union rights. Noting, moreover, that the information provided does not show whether inspections are carried out on a routine basis or based on a request, nor the grounds for the inspections or the nature of the infringements observed, the Committee requests the Government to include such information, when transmitting detailed information on the inspections carried out, indicating the outcome of such inspections and the number and nature of any violations identified and the penalties imposed. The Committee also requests the Government to reply to the above-mentioned concerns expressed by the trade union confederations.

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

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The Committee notes the Government’s reply to the observations of the International Trade Union Confederation (ITUC), the Confederation of Workers Rerum Novarum (CTRN) and the National Association of Nursing Professionals (ANPE) of 2020. The Committee also notes the joint 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 which, like those of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) transmitted by the Government with its report, concern issues that the Committee is examining in this observation, as well as in the direct request that accompanies this observation. The Committee further notes the detailed observations of the Unity in Trade Union Action (UAS), received on 31 October 2023, which also cover issues examined below. The Committee requests the Government to provide its comments in this respect.

Pending legislative issues. Articles 2 and 4 of the Convention. The Committee recalls that for several years its comments have referred to the following issues:

• The need to amend section 344 of the Labour Code to establish a short, specific period for the administrative authority to reach a decision on the registration of trade unions, after which, in the absence of a decision, they are deemed to have obtained legal personality. The Committee notes that although the Government reiterates that this situation has been remedied in practice for more than a decade, it highlights its agreement to seek possible reforms and assistance in this matter. The Committee also notes that the trade union confederations highlight that there remains an urgent need to amend section 344 of the Labour Code since, in practice, the deadlines set forth in this provision extend by months, and this situation generates confusion among affiliates and compromises the worker-employer relationship, leading to employers taking advantage so as not to recognize the organization.
• The need to amend section 346(a) of the Labour Code, which requires the executive board of trade unions to be appointed every year. While the Committee notes that the Government has not provided information in this respect, it recalls that previously the Government indicated that the Register of Civil Organizations does not apply this provision and the Ministry of Labour and Social Security (MTSS), in practice, guarantees organizations full autonomy in determining the term of their executive boards. The Committee notes that the trade union confederations highlight that that while it is true provisions of more subordinate law have resulted in the Department of Social Organizations of the MTSS accepting the registration of executive boards for a duration of more than one year, this does not entail legal certainty.
• The need to amend article 60(2) of the Constitution and section 345(e) of the Labour Code, which prohibit foreigners from holding office or exercising authority in trade unions. The Committee notes the Government’s indication that, while it understands and supports the Committee’s request, the process of constitutional reform entails particular difficulties which have prevented progress in this respect to ensure the participation of foreigners in trade union office. The Committee notes that the trade union confederations highlight that it is unacceptable that the Government, due to a lack of political will, has not acted as necessary to present a reform or derogation of section 60(2) of the Constitution and of section 345(e) of the Labour Code. The trade union confederations also highlight that the migrant population constitutes 95 per cent of the working population in agro-industrial activities and the construction industry, and that they are all prevented from holding positions of management or authority in trade unions.

While regretting to note once again that no progress has been made in relation to the matters raised, the Committee takes due note that the Government highlights its agreement to seek possible reforms and assistance in some of these matters. Reiterating the need for the Government to take all necessary measures to amend the above-mentioned provisions of the Labour Code and the Constitution, as well as the practice of their application by the relevant authorities into conformity with the Convention, the Committee hopes that the Government will receive the assistance referred to and will take the measures requested as soon as possible. The Committee requests it to provide information on any progress in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

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

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

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

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

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

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

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

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

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

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

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

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

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

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020) which concerns matters addressed in the direct request, which accompanies this observation.

The Committee also notes the observations of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) transmitted by the Government, as well as the observations of the International Trade Union Confederation (ITUC), received on 16 September 2020, the Confederation of Workers Rerum Novarum (CTRN) and the National Association of Nursing Professionals (ANPE), both received on 30 September 2020, all relating to the matters raised by the Committee in its direct request. The Committee requests the Government to provide its comments in relation to the observations of the CTRN, ITUC and ANPE, as well as in relation to the observations of the CTRN of 2019.

The Committee reiterates the content of its observation adopted in 2019, which is repeated below.

In its latest comment, the Committee took note of the adoption of the Labour Proceedings Reform Act No. 9343 and noted with satisfaction that the Act amended the percentage of workers required to declare a strike. The Committee notes the Government’s indication that, in November 2017, Executive Decree No. 40749 was issued, which regulates the call to vote required in order to exercise the right to strike, in accordance with the provisions of the Labour Proceedings Reform Act.

Pending legislative issues. Articles 2 and 4 of the Convention. The Committee recalls that for years its comments have referred to the following issues:

• -Registration of trade unions and acquisition of legal personality. The Committee indicated to the Government the need to amend section 344 of the Labour Code to establish a short, specific period for the administrative authority to reach a decision on the registration of trade unions, after which, in the absence of a decision, they are deemed to have obtained legal personality. In this regard, the Committee notes the Government’s indication that, although this situation has been remedied both in practice and in administrative law, the Committee’s comments will be taken into account.
• -Right of organizations freely to elect their representatives. Obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee has drawn the attention of the Government to the need to amend section 346(a) of the Labour Code, which requires the executive board of trade unions to be appointed every year. In this regard, the Committee notes the Government’s indication that although this article has not been amended, the Register of Civil Organizations does not apply this provision and the Ministry of Labour and Social Security, in practice, guarantees organizations full autonomy in determining the term of their executive boards.
• -Prohibition on foreigners from holding office or exercising authority in trade unions (article 60(2) of the Constitution and section 345(e) of the Labour Code). The Committee indicated to the Government the need to amend article 60(2) of the Constitution and section 345(e) of the Labour Code, which prohibit foreigners from holding office or exercising authority in trade unions. The Committee recalls that a proposed constitutional reform had been submitted to the plenary of the Legislative Assembly to resolve this issue (legislative file No. 17804). The Committee notes the Government’s indication that the above-mentioned proposed constitutional reform was shelved on 17 October 2018. The Government indicates that this decision followed a decision made by the Speaker of the Legislative Assembly, who ordered that bills that had exceeded the four-year deadline on that date should be shelved, in conformity with section 119 of the Regulations of the Legislative Assembly. The Government also indicates that it will undertake an assessment to consider the submission of a new constitutional reform proposal in the terms referred to by the Committee. The Government adds that, in practice, the Department of Civil Organizations in the Ministry of Labour and Social Security registers the appointment of foreigners to the executive bodies of trade unions when it is demonstrated that they comply with the legal requirements.

Observing that no specific progress has been made in relation to the matters indicated, the Committee once again requests the Government to take all necessary measures to amend the above-mentioned provisions of the Labour Code and the Constitution in conformity with the Convention, as well as with the practice followed by the authorities. It requests the Government to provide information on developments in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

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

Article 3 of the Convention. Right of organizations to freely organize their activities and formulate their programmes. The Committee recalls that it has for years been indicating to the Government the need to remove the prohibition of the right to strike from workers engaged in rail, maritime and air transport enterprises and workers engaged in loading and unloading on docks and quays established under section 376(c) of the Labour Code. In its previous comments, the Committee noted that: (i) as reported by the Government, the Constitutional Chamber of the Supreme Court of Justice found section 376(a), (b) and (e) of the Labour Code on the prohibition of strikes in the public services to be unconstitutional (ruling No. 01317-1998) and (ii) the Labour Proceedings Reform Act did not amend section 376 of the Labour Code. The Committee notes that the Government, in its report, reiterates that the question of section 376(c) of the Labour Code was examined by the Constitutional Chamber in the context of ruling No. 01317-1998 and that the national legislation was in conformity with that decision. The Committee notes, nevertheless, that in their observations, the Confederation of Workers Rerum Novarum (CTRN), the Costa Rican Union of Chambers and Associations of Private Enterprises (UCCAEP) and the International Organisation of Employers (IOE) indicate that Bill No. 21049 on the provision of legal security during strikes and associated procedures, which seeks, inter alia, to amend section 376(c) of the Labour Code, is currently being debated in Parliament. The Committee also noted that on 25 October 2019, the Constitutional Chamber of the Supreme Court of Justice issued a decision in relation to an advisory legislative consultation on Bill No. 21049. The Committee welcomes the fact that, in line with what the ILO supervisory bodies have consistently maintained, the amended version of section 376 contained in Bill No. 21049 defines essential public services as those services the suspension, interruption or shutdown of which could cause significant harm to the rights to life, health and public safety. The Committee notes, however, that the section concerned contains a list of essential public services where strike action is prohibited and observes that some of these do not constitute essential services in the strict sense of the term, such as transport services in general, including rail and sea transport, loading and unloading services for perishable foodstuffs, pharmacies, scheduled medical appointments and care, as well as fuel distribution. The Committee recalls that while what is meant by essential services in the strict sense of the word depends to a large extent upon the particular circumstances in each country, the definitive criterion for the classification of essential services in the strict sense is the existence of a clear and present threat to the life, safety or health of all or part of the population. The Committee further recalls that, in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, consideration might be given to ensuring that users’ basic needs are met or that facilities operate safely or without interruption, the introduction of a negotiated minimum service, as a possible alternative to a total prohibition of strikes, could be appropriate (see the 2012 General Survey on the fundamental Conventions, paragraph 136).

The Committee also notes that section 373ter of the Bill lists services of vital importance, defined as those the suspension or stoppage of which, due to their strategic importance for the socio-economic development of the country, would entail significant damage to the living conditions of all or part of the population. The Committee notes that the above-mentioned section provides that the holding of a strike in services of vital importance shall be conditional upon the provision of minimum services defined through an agreement between the parties and that the maximum duration of a strike in those services shall be 10 calendar days (21 days in education services, or 10 intermittent days), after which if no agreement resolving the conflict is reached the matter shall be referred for binding arbitration. In this regard, the Committee considers that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable under certain circumstances, namely: (i) when the two parties to the dispute so agree; or (ii) when the strike in question may be restricted, or even prohibited, that is: (a) in the case of disputes concerning public servants exercising authority in the name of the State; (b) in conflicts in essential services in the strict sense of the term; or (c) in situations of acute national or local crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation. Accordingly, the existence of protracted disputes and the failure of conciliation are not per se elements which justify the imposition of compulsory arbitration (see the 2012 General Survey on the fundamental Conventions, paragraph 153).

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

Furthermore, the Committee expresses unease in relation to the following provisions contained in the Bill:

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

Lastly, the Committee notes that in its above-mentioned decision of 25 October 2019, the Constitutional Chamber of the Supreme Court of Justice found an unconstitutional flaw in relation to section 350 of Bill No. 21049, which provides for the dissolution of trade unions for the criminal conduct of their leaders. The Committee notes with interest that in its decision, the Constitutional Chamber emphasized that the individual and entirely personal criminal responsibility of trade union leaders could not be transferred to the trade union as a whole.

The Committee requests the Government, in the light of the foregoing comments, to take all necessary measures to ensure the conformity of the legislation and the eventual reforms to the legislation with the Convention. It also requests the Government to provide information regarding the current status of Bill No. 21049. The Committee reminds the Government that the technical assistance of the Office remains at its disposal in order to contribute to bringing the legislation into full conformity with the Convention.

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

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

The Committee notes the detailed observations of the Confederation of Workers Rerum Novarum (CTRN), received on 31 August 2019, as well as the joint observations of the Costa Rican Union of Chambers and Associations of Private Enterprises (UCCAEP) and the International Organisation of Employers (IOE), received on 2 September 2019, all of which relate to issues addressed by the Committee in this comment. The Committee notes the Government’s reply to the observations of the UCCAEP and the IOE and requests it to provide its comments in relation to the observations of the CTRN.

In its latest comment, the Committee took note of the adoption of the Labour Proceedings Reform Act No. 9343 and noted with satisfaction that the Act amended the percentage of workers required to declare a strike. The Committee notes the Government’s indication that, in November 2017, Executive Decree No. 40749 was issued, which regulates the call to vote required in order to exercise the right to strike, in accordance with the provisions of the Labour Proceedings Reform Act.

Pending legislative issues. Articles 2 and 4 of the Convention. The Committee recalls that for years its comments have referred to the following issues:

• -Registration of trade unions and acquisition of legal personality. The Committee indicated to the Government the need to amend section 344 of the Labour Code to establish a short, specific period for the administrative authority to reach a decision on the registration of trade unions, after which, in the absence of a decision, they are deemed to have obtained legal personality. In this regard, the Committee notes the Government’s indication that, although this situation has been remedied both in practice and in administrative law, the Committee’s comments will be taken into account.
• -Right of organizations freely to elect their representatives. Obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee has drawn the attention of the Government to the need to amend section 346(a) of the Labour Code, which requires the executive board of trade unions to be appointed every year. In this regard, the Committee notes the Government’s indication that although this article has not been amended, the Register of Civil Organizations does not apply this provision and the Ministry of Labour and Social Security, in practice, guarantees organizations full autonomy in determining the term of their executive boards.
• -Prohibition on foreigners from holding office or exercising authority in trade unions (article 60(2) of the Constitution and section 345(e) of the Labour Code). The Committee indicated to the Government the need to amend article 60(2) of the Constitution and section 345(e) of the Labour Code, which prohibit foreigners from holding office or exercising authority in trade unions. The Committee recalls that a proposed constitutional reform had been submitted to the plenary of the Legislative Assembly to resolve this issue (legislative file No. 17804). The Committee notes the Government’s indication that the above-mentioned proposed constitutional reform was shelved on 17 October 2018. The Government indicates that this decision followed a decision made by the Speaker of the Legislative Assembly, who ordered that bills that had exceeded the four-year deadline on that date should be shelved, in conformity with section 119 of the Regulations of the Legislative Assembly. The Government also indicates that it will undertake an assessment to consider the submission of a new constitutional reform proposal in the terms referred to by the Committee. The Government adds that, in practice, the Department of Civil Organizations in the Ministry of Labour and Social Security registers the appointment of foreigners to the executive bodies of trade unions when it is demonstrated that they comply with the legal requirements.

Observing that no specific progress has been made in relation to the matters indicated, the Committee once again requests the Government to take all necessary measures to amend the above-mentioned provisions of the Labour Code and the Constitution in conformity with the Convention, as well as with the practice followed by the authorities. It requests the Government to provide information on developments in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

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

The Committee recalls that in its previous direct request it asked the Government to ensure that the labour inspectorate carries out inspections in the pineapple and banana sector to ensure the respect of trade union rights, including in plantations where there are solidarista associations. In this respect, the Committee notes the Government’s indication that cases of violations of trade union rights in this sector are duly identified in the Labour Inspection and Administration Case System (SILAC), now maintained by the National Directorate of the Labour Inspectorate (DNI). The Committee notes the statistical data provided by the Government and observes that the labour inspectorate dealt with a total of three cases of trade union persecution between 2015 and 2016 in the pineapple and banana sector. The Committee also notes that over 80 per cent of the DNI’s interventions in the pineapple sector arose of the DNI’s own initiative, and did not arise from complaints. The Committee further notes that the infringements most often identified in pineapple cultivation are related to the minimum wage, payslips and overtime, as well as social security and occupational risk insurance. The Committee requests the Government to continue providing information on the inspections carried out in the pineapple and banana sector, and on the complaints of violations of trade union rights in this sector.

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2014, of the National Federation of Employees of the Social Security System and Fund (UNDECA) received on 6 April 2016, and of the Rerum Novarum Workers’ Confederation (CTRN) received on 5 September 2016, concerning issues addressed by the Committee in the present observation. The Committee also notes the observations of the International Organisation of Employers (IOE) received on 1 September 2014 and 1 September 2016, which are of a general nature.

The Committee notes that the labour proceedings reform bill was adopted by means of Act No. 9343 of 25 January 2016 and will come into force in July 2017. The major changes in the law include quicker labour proceedings through incorporation of the principle of orality; the reorganization and specialization of labour jurisdiction; and the elimination of cost categorization and the provision of legal assistance free of charge. The Committee welcomes these changes in the law and notes that the Government has requested technical assistance from the Office in order to implement them.

The Committee recalls that it has been making comments for a number of years on the following matters:

Articles 2 and 4 of the Convention. Registration of trade unions and acquisition of legal personality. In its previous comments, the Committee recalled the need for Bill No. 13475, in amending section 344 of the Labour Code, to establish a short specific period during which the administrative authority is required to reach a decision on the registration of trade unions and after which, in the absence of a decision, legal personality is deemed to have been obtained. The Government indicates that Bill No. 13475 is at a standstill within the legislative process and that, in any case, it does not include the abovementioned provision in its content. However, the Government indicates that it will examine the possibility of including this aspect in the Bill in question or otherwise consider a separate alternative. The Committee also notes that the CTRN emphasizes in its observations that the legislative cycle of Bill No. 13475 expired on 8 November 2016. The Committee trusts that the Government will take the necessary steps in the near future to explicitly include the abovementioned time periods in Bill No. 13475 or other legislation and requests the Government to keep it informed in this respect.

Article 3. Right of organizations to elect their representatives in full freedom. Obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee noted in its last observation that Bill No. 13475 no longer includes a requirement for the executive board to be appointed each year. The Committee notes that, in relation to this matter too, the Government indicates that Bill No. 13475 is at a standstill within the legislative process and does not include the abovementioned provision in its content, and that it will examine the possibility of including this aspect in the Bill or otherwise consider a separate alternative. The Government also reiterates that in practice the Ministry of Labour guarantees the full autonomy of organizations to determine the periods of office of their executive committees. The Committee requests the Government once again to take steps to amend section 346(a) of the Labour Code to bring it into line with the Convention and with the practice followed by the authorities, and to keep it informed in this respect.

Prohibition on foreigners from holding office or exercising authority in trade unions (article 60(2) of the Constitution and section 345(e) of the Labour Code). The Committee noted in its last observation that a proposed constitutional reform had been submitted to the plenary of the Legislative Assembly to resolve the issue. The Committee notes that the proposed constitutional reform is still active within the Legislative Assembly (legislative file No. 17.804). The Committee requests the Government to provide information on any further developments regarding the proposed constitutional reform.

Right of organizations to organize their activities and to formulate their programmes in full freedom. The Committee previously commented on the requirement to have the support of 60 per cent of persons who work in the enterprise, workplace or establishment concerned in order to declare strike action (section 373(c) of the Labour Code). The Committee notes with satisfaction that the Labour Proceedings Reform Act amends the abovementioned section and replaces it with the provision that, to achieve the minimum support for the strike to be legal: (a) the strike call must be approved by the general assembly of the union or unions at the enterprise, institution, establishment or workplace concerned that account, individually or collectively, for 50 per cent of the workers; and (b) in the event that there is no single union, or no union in combination with others, that accounts for the aforementioned percentage of membership, a ballot will be held and the strike will be deemed to be approved if at least 35 per cent of all workers at the enterprise have voted and at least “50 per cent plus one” of the votes cast are in favour of the strike (section 381).

The Committee also previously commented on the prohibition of the right to strike for “workers engaged in rail, maritime and air transport enterprises” and “workers engaged in loading and unloading on docks and quays” (section 376(c) of the Labour Code). The Committee had already noted the Government’s indication that the Constitutional Chamber of the Supreme Court of Justice had declared the strike prohibitions referred to by section 376(a), (b) and (e) of the Labour Code to be unconstitutional (vote No. 1998-01317). Observing that the Labour Proceedings Reform Act has not amended section 376 of the Labour Code, the Committee firmly hopes that the Government will take the necessary steps to amend this provision to remove the prohibition contained in clause (c) and also to ensure the legislation’s conformity with the abovementioned declaration of unconstitutionality. The Committee requests the Government to keep it informed in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

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

In its previous comments, the Committee asked the Government to send its observations on the 2009 and 2011 communications by the International Trade Union Confederation (ITUC), and particularly on: (i) the ITUC’s assertion that in the event of a strike, trade unions are required to give the names of the strikers; and (ii) the alleged breach of the Act prohibiting trade union activities by solidarista associations in certain banana and pineapple plantations. The Committee observes that the Government has not replied to the first of the above assertions and accordingly requests it to do so. The Committee notes the ITUC’s comments of 30 August 2013, as well as the Government’s observations thereon.

The Committee notes that the Government has ordered the labour inspectorate to carry out visits in the pineapple sector and that the Government reports that in the course of the visits there were no complaints of any violations of trade union rights; the chamber of employers stated that it respects labour rights. The Committee observes that the Government does not refer by name to the enterprises in the pineapple sector mentioned by the ITUC, or to the banana sector (other than to point out that cases concerning this sector have been submitted to the Committee on Freedom of Association). It requests the Government to ensure that the labour inspectorate carries out visits in this sector as well in order to satisfy itself that trade union rights are observed, including in plantations where there are solidarista associations The Committee requests the Government to provide information on any developments in this regard.

With regard to the 2011 comments by the Confederation of Workers Rerum Novarum (CTRN), the Committee notes the Government’s response that the case concerning the JAPDEVA Workers’ Union (SINTRAJAP) in the ports sector was examined by the Committee on Freedom of Association, which found no grounds for continuing its examination. The Government denies that there was any interference in the affairs of the abovementioned union. The Government adds that the constitutional reform regarding solidarista associations treats the latter as an instrument for workers’ economic and social growth and does not seek to substitute them for trade unions and that the People’s Development Bank (referred to by the CTRN) is in the process of revising the collective agreement.

The Committee notes that the Government has conducted consultations and gathered information on complaints by trade unions concerning the Ministry of Public Education and the Supreme Electoral Court; in the former institution, agreements have been reached with trade union organizations to guarantee the exercise of fundamental rights. The Government states that it will send further information. As regards the second of the above institutions, the administrative enquiry led to a decision to dismiss the case concerning a public servant accused of dereliction of duty; it was furthermore agreed that a meeting would be held to come to an agreement on trade union leave.

Lastly, the Committee notes that in its 2013 communication, the CTRN refers for the most part to problems already raised by the Committee and provides some examples and information by way of illustration.

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

In comments that are still pending, the Committee referred to the following issues and legislative provisions:

Articles 2 and 4 of the Convention. Registration of trade unions and obtention of legal personality. In its previous comments, the Committee had recalled the need for Bill No. 13475, in amending section 344 of the Labour Code, to establish a specific and short period during which the administrative authority is to reach a decision on the registration of trade unions and after which, in the absence of a decision, legal personality is deemed to have been obtained. The Government reiterates in its latest report that in practice registration procedures are carried out without any delay and that, if applications fall short of the legal documentary requirements, applicants are asked to remedy the defects and are entitled to appeal. The legal time limits are 15 days for the Department of Trade Union Organizations and, if it issues a favourable opinion within that period, the Ministry of Labour issues its decision as soon as possible thereafter, and in any event within one month of the report being issued. The Committee notes that, according to the Government, the issue raised by the Committee, in addition to being superseded in practice, is no longer valid in relation to the law, as the General Act of the public administration provides that, where the statutory time limits are not respected, those concerned may appeal to the respective higher authority. The Committee again invites the Government to set out these deadlines explicitly in Bill No. 13475.

Article 3. Right of organizations to elect their representatives in full freedom. Prohibition upon foreigners from holding office or exercising authority in trade unions (article 60(2) of the Constitution and section 345(e) of the Labour Code). The Committee observed previously that Bill No. 13475 amends section 345(e) of the Labour Code so that it no longer provides that the members of the executive board of a trade union must be of Costa Rican nationality or of Central American origin, or foreign nationals married to a Costa Rican woman and having completed five years of permanent residence in the country. Nevertheless, the Bill provides that the bodies of trade unions have to comply with the provisions of article 60 of the Constitution, which provides that “foreign nationals shall be barred from positions of management or authority in trade unions”. The Committee noted that a draft reform of the Constitution had been submitted to the Legislative Assembly to overcome the problem. The Committee requests the Government to provide information on further developments regarding this proposed constitutional reform.

Obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee noted previously that Bill No. 13475 no longer includes a requirement for the executive board to be appointed each year. The Committee notes the Government’s repeated indication that in practice the Ministry of Labour ensures the full autonomy of organizations to determine the duration of the mandates of their executive boards. The Committee again requests the Government to take measures to amend section 346(a) of the Labour Code so as to adapt it to the practice followed by the authorities, and to provide information in this respect.

Right of organizations to organize their activities and to formulate their programmes in full freedom. Restrictions on the right to strike. The Committee noted previously that a judge of the Supreme Court of Justice had informed an ILO mission that of the 600 or so strikes that had occurred over the last 20–30 years, ten at most have been declared lawful; furthermore, according to the trade union federations, the procedure to set a strike in motion could last for years. In addition, the legislation establishes the following restrictions: (i) the requirement of “60 per cent of persons who work in the enterprise, workplace or establishment concerned” – section 373(c) of the Labour Code; and (ii) prohibition of strikes by “workers engaged in rail, maritime and air transport enterprises” and “workers engaged in loading and unloading on docks and quays” – section 373(c) of the Labour Code.

The Committee noted previously that the Bill to reform labour procedures – for which the ILO afforded technical assistance – had been submitted to the Legislative Assembly, had been endorsed by the trade union organizations and employers’ associations, except for a few provisions, and took account of most of the recommendations made by the ILO supervisory bodies. The Committee nonetheless observed that although the Bill contained improvements over the legislation in force, it would be advisable to introduce further changes in order to achieve full conformity with the Convention.

The Committee notes the Government’s statement that the Bill to reform labour procedures, which covers strike-related matters, was adopted by the Legislative Assembly, but the Executive vetoed it in 2012 in the light of the provisions of the Constitution concerning the continuity of the public service, in order to ensure the continuity of essential services and services of critical importance by the provision of minimum services. The Government reports that following consultations with various sectors including workers’ organizations, a proposal for an alternative model was produced, which was submitted to the Legislative Assembly and referred to the latter’s committees. The Committee also notes the information from the Government concerning the decision by the Constitutional Chamber of the Supreme Court of Justice finding section 376(a), (b) and (e) of the Labour Code on the prohibition of strikes in the public services to be unconstitutional and ruling that the majorities required to declare a strike shall not be such as to prevent the strike.

The Committee again observes with regret that the Bills submitted to the Legislative Assembly to align the legislation more closely with the Convention on a number of important subjects have not been passed. It observes that in February 2014 there are to be political elections and understands that the Bills referred to by the Government will have to be reactivated in Parliament to avoid being shelved. The Committee requests the Government to continue to promote the Bill to reform labour procedures along with the other Bills referred to above, and to provide information in this regard.

The Committee reminds the Government that it may seek ILO technical assistance in this process to help to achieve full conformity of the legislation with the Convention.

Bearing in mind the various ILO missions that have visited the country over the years and in view of the seriousness of the problems, and while expressing disappointment at the lack of results as regards the problems still pending, the Committee nonetheless expresses the hope that it will be able to note significant progress in the near future as regards both the legislation and practice. The Committee requests the Government to provide information in this regard in its next report.

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

The Committee notes the Government’s report and its reply to the comments of the International Trade Union Confederation (ITUC) of August 2011 concerning the application of the Convention. The Committee notes the report of the high-level technical assistance mission which visited San José in May 2011 in the context of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Article 3 of the Convention. Right of organizations to elect their representatives in full freedom. Prohibition upon foreigners from holding office or exercising authority in trade unions (article 60, second paragraph, of the Constitution and section 345(e) of the Labour Code). The Committee observed previously that Bill No. 13475 amends section 345(e) of the Labour Code so that it no longer provides that the members of the executive board of a trade union must be of Costa Rican nationality or of Central American origin, or foreign nationals married to a Costa Rican woman and having completed five years of permanent residence in the country. Nevertheless, the Bill provides that the bodies of trade unions have to comply with the provisions of article 60 of the Constitution, which provides that “foreign nationals shall be barred from positions of management or authority in trade unions”. The Committee noted previously that a draft reform of the Constitution, prepared with the assistance of the ILO along the lines requested by the ILO, had been submitted to the Legislative Assembly in 1998, but was shelved in 2009.

The Committee notes the Government’s indication in its report that, on 30 July 2010, a group of deputies once again submitted a Bill to amend article 60 of the Constitution, along the lines requested by the Committee, and that if it is approved it would involve the amendment of section 345 of the Labour Code, to guarantee equality of conditions for foreign nationals in access to trade union office. The Committee expresses the firm hope that the new Bill to reform the Constitution will be adopted in the very near future and it requests the Government to provide information in that regard.

Obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee noted previously that Bill No. 13475 no longer establishes the requirement for the executive board to be appointed each year. The Committee notes the Government’s repeated indication that in practice the Ministry of Labour ensures the full autonomy of organizations to determine the duration of the mandates of their executive boards. The Government adds that, in view of the examination of another Bill (to reform labour procedures) by the Legislative Assembly, Bill No. 13475 has not become law. The Committee requests the Government to take measures to amend section 346(a) of the Labour Code so as to adapt it to the practice followed by the authorities, and to provide information in this respect.

Right of organizations to organize their activities and to formulate their programmes in full freedom. Restrictions on the right to strike: (i) requirement of “60 per cent of persons who work in the enterprise, workplace or establishment concerned” – section 373(c) of the Labour Code; and (ii) prohibition of the right to strike for “workers engaged in rail, maritime and air transport enterprises” and “workers engaged in loading and unloading on docks and quays” – section 373(c) of the Labour Code.

The Committee noted previously the Government’s indication that the Bill to reform labour procedures, which benefited from ILO technical assistance, had been submitted to the Legislative Assembly, was supported by the trade unions and employers’ associations, with the exception of certain provisions, and took into account the recommendations of the ILO supervisory bodies. The Committee observed that the Bill:

• – proposes 40 per cent of the workers of the enterprise in order to call a strike (the employers’ associations rejected this percentage, citing the principle of democratic participation);
• – the right to strike is restricted only in essential services in the strict sense of the term, although these include the loading and unloading of perishable goods in ports; transport is considered an essential service as long as the journey has not been completed;
• – strikes may no longer be deemed unlawful before they have occurred (the Government emphasizes that this is already established by jurisprudence, and that trade unions are now heard during judicial procedures);
• – arbitration is introduced for disputes in essential services and in the public sector (in this respect, the Committee recalls that compulsory arbitration is only admissible in relation to public servants exercising authority in the name of the State and in essential services the interruption of which would endanger life, personal safety or health);
• – a special very short summary procedure is introduced for workers with trade union immunity; and
• – the maximum limit for strikes is set at 45 calendar days (following which arbitration is compulsory).

The Committee emphasizes that, despite the improvements introduced in the Bill in relation to the legislation that is currently in force, it would be necessary to make certain additional modifications to achieve full conformity with the Convention.

Also with regard to the right to strike, the Committee noted previously that a magistrate of the Supreme Court of Justice had indicated that of the 600 or so strikes that had occurred over the past 20 or 30 years, no more than ten had been declared unlawful. Furthermore, according to the trade union confederations, the procedure to set a strike in motion could last around three years.

The Committee notes the Government’s indication in its report that 234 amendments were submitted in 2011 to the Bill to reform labour procedures due to differences of views in the Legislative Assembly and that the achievement of consensus always requires time. The Committee notes that the report of the ILO mission undertaken in May 2011 in Costa Rica in the context of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), indicates that the mission promoted the Bill in the official meetings of the Legal Affairs Commission of the Legislative Assembly.

The Committee regrets to observe once again that the Bills submitted to the Legislative Assembly to achieve greater conformity between the legislation and the Convention on very important matters that are not meeting with success. The Committee requests the Government to continue promoting the Bill to reform labour procedures and to provide information on this subject.

Articles 2 and 4. The need for Bill No. 13475, in amending section 344 of the Labour Code, to establish a specific and short period during which the administrative authority is to reach a decision on the registration of trade unions and after which, in the absence of a decision, legal personality is deemed to have been obtained. The Government reiterates in its latest report that in practice registration procedures are carried out without any delay and that, if applications fall short of the legal documentary requirements, applicants are asked to remedy the defects and are entitled to appeal. The legal time limits are 15 days for the Department of Trade Union Organizations and, if it issues a favourable opinion within that period, the Ministry of Labour issues its decision as soon as possible thereafter, and in any event within one month of the report being issued. The Committee notes that, according to the Government, the issue raised by the Committee, in addition to being superseded in practice, is no longer valid in relation to the law, as the General Act of the public administration provides that, where the statutory time limits are not respected, those concerned may appeal to the respective higher authority. The Committee previously invited the Government to have these deadlines set out explicitly in Bill No. 13475. The Committee observes once again that the Bill is before the Legislative Assembly, but is not being examined, and it requests the Government to provide information on any developments in this respect.

Submission of legislative matters to a joint commission in the Legislative Assembly. Taking into account the differences of views in the Legislative Assembly on the content of the future Act to reform labour procedures (Bill No. 15990 and the other bills relating to trade union rights), the Committee once again requests the Government to promote a joint commission in the Legislative Assembly with representation of trade unions and employers, as proposed by the Higher Labour Council (a tripartite body) to the Legislative Assembly, to address controversial matters. The Committee reminds the Government that ILO technical assistance is at its disposal in this process with a view to contributing to bringing the legislation into full conformity with the Convention.

Taking into account the various ILO missions which have visited the country over the years and the gravity of the problems, the Committee, while expressing disappointment at the lack of results in relation to the pending issues, also expresses the hope that it will 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 in this respect in its next report.

Comments by trade union organizations. The Committee previously requested the Government to provide official statistical data on the number of trade unions and higher level organizations (in the public and private sectors) and the number of trade union members (the ITUC had indicated that trade unions were practically non-existent in the private sector). The Committee notes the Government’s indication in its report that the unionization rate has risen from 8.3 per cent (2007) to 10.3 per cent (2010), representing a total of 195,950 union members (of which 72,382 are in the private sector). According to the Government’s statistics, there are 281 unions, of which 127 are active in the private sector.

Finally, the Committee requested the Government to provide its observations on the ITUC’s communication, dated 26 August 2009, and particularly on: (1) its allegation that in the event of a strike the unions are required to provide the names of the strikers; (2) the alleged unlawful arrest of a trade union leader in the construction sector; and (3) the violation of the Act which prohibits trade union activities by solidarist associations in certain banana and pineapple ranches.

The Committee notes the Government’s indication that the (temporary) arrest of the person mentioned by the ITUC is not related to his trade union activities, but to his unlawful migrant status in the country; the refusal of his application for a residence permit had been notified to him in October 2004. The Committee notes the Government’s indication that it has requested comments from enterprises in the banana and pineapple sector so that they can reply to the ITUC’s allegations, which it considers to be unfounded, as details are not provided of the alleged violations of trade union rights. The Committee awaits this information and the Government’s reply to the ITUC’s allegation that in the event of a strike the unions are required to provide the names of the strikers.

The Committee notes the comments of the Union of Medical Science Professionals of the Costa Rican Social Security Fund (SIPROMECA) of July 2011 and the Government’s reply. The Committee also notes the comments of the Confederation of Workers Rerum Novarum (CTRN) of 31 August 2011 and those of the ITUC of August 2011 and requests the Government to provide its replies.

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

The Committee notes the Government’s report and its reply to the comments of the International Trade Union Confederation (ITUC), dated 28 August 2007, on the application of the Convention. In its previous observation, the Committee noted the report of the high-level technical assistance mission which visited San José from 2 to 6 October 2006 in the context of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee notes the reasons given by the Government for the delay in the examination of the Bills relating to the application of the Convention by the Legislative Assembly (the need to adopt additional legislation under the Free Trade Agreement). Furthermore, the Government organized a forum with the participation of members of Parliament to promote the draft reform of labour procedures.

Article 3 of the Convention. Right of organizations to elect their representatives in full freedom. Prohibition upon foreigners from holding office or exercising authority in trade unions (article 60, second paragraph, of the Constitution and section 345(e) of the Labour Code). The Committee observed previously that Bill No. 13475 (currently on the agenda of the Legislative Assembly) amends section 345(e) of the Labour Code so that it no longer provides that the members of the executive board of a trade union must be of Costa Rican nationality or of Central American origin, or foreign nationals married to a Costa Rican woman and having completed five years of permanent residence in the country. Nevertheless, the Bill provides that the bodies of trade unions have to comply with the provisions of article 60 of the Constitution, which provides that “foreign nationals are barred from positions of management or authority in trade unions”. The Committee noted previously that a draft reform of the Constitution, prepared with the assistance of the ILO, had been submitted to the Plenary of the Legislative Assembly in 1998. The Committee regrets to note the Government’s indication in its report that the draft reform of the Constitution has been shelved as the four-year period has elapsed. The Government expresses its good will to make all the necessary efforts to promote this issue among the members of the Legislative Assembly. The Committee previously drew the Government’s attention to the importance of amending not only section 345 of the Labour Code, but also article 60, second paragraph, of the Constitution, to abolish the excessive restrictions that are currently placed on the right of foreign nationals to hold trade union office, which are inconsistent with Article 3 of the Convention. The Committee reiterates its comments in this respect.

Obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee noted previously that Bill No. 13475 no longer establishes the requirement for the executive board to be appointed each year. The Committee notes the Government’s indication that in practice the Ministry of Labour ensures the full autonomy of organizations to determine the duration of the mandates of their executive boards.

Right of organizations to organize their activities and to formulate their programmes in full freedom. Restrictions on the right to strike: (i) requirement of “60 per cent of the persons who work in the enterprise, workplace or establishment concerned” – section 373(c) of the Labour Code; and (ii) prohibition of the right to strike for “workers engaged in rail, maritime and air transport enterprises” and “workers engaged in loading and unloading of docks and quays” – section 373(c) of the Labour Code.

The Committee noted previously that, according to the Government, on 25 August 2005 the judicial authorities referred to the Executive for its submission to the Legislative Assembly a Bill to reform labour procedures, which benefitted from ILO technical assistance. The Committee noted that, according to the Government, the Bill takes into account the ruling of 27 February 1998 by the Constitutional Chamber and the recommendations of the Committee on Freedom of Association, and has been endorsed by the trade union organizations and employers’ associations, except with regard to certain provisions. The Committee observed previously that the Bill:

–           proposes 40 per cent of workers in order to call a strike (the employers’ associations rejected this percentage, citing the principle of democratic participation);

–           the right to strike is restricted only in essential services in the strict sense of the term, although these include the loading and unloading of perishable goods in ports; transport is considered an essential service as long as the journey has not been completed;

–           strikes may no longer be deemed unlawful before they have occurred;

–           arbitration is introduced for disputes in essential services and in the public sector (in this respect, the Committee recalls that compulsory arbitration is only admissible in relation to public servants exercising authority in the name of the State and in essential services the interruption of which would endanger life, personal safety or health); and

–           a special and very short summary procedure is introduced for workers with trade union immunity.

Moreover, in a direct request, the Committee observed previously that the Bill establishes a maximum limit for strikes of 45 calendar days (after which arbitration is compulsory).

With regard to the right to strike, the Committee also noted that a magistrate of the Supreme Court of Justice had indicated that of the 600 or so strikes that had occurred over the past 20 or 30 years, no more than ten had been declared lawful. Furthermore, according to trade union federations, the procedure to set a strike in motion could last up to three years.

The Committee notes that in its latest report the Government indicates that: (1) the Bill to reform labour procedures has been placed on the agenda of the Plenary of the Legislative Assembly as a result of the Government’s promotional activities; and (2) the establishment of a joint commission of the Legislative Assembly to further the Bill was decided upon and agreed to in the Higher Labour Council (a tripartite body).

Articles 2 and 4. The need for Bill No. 13475, in amending section 344 of the Labour Code, to establish a specific and short period during which the administrative authority is to reach a decision on the registration of trade unions and after which, in the absence of a decision, legal personality is deemed to have been obtained. The Committee notes the Government’s repeated indication in its latest report that in practice registration procedures are carried out without any delay and that, if they fall short of the legal documentary requirements, applicants are asked to remedy the matter and are entitled to appeal. The Department of Trade Union Organizations has 15 days within which to respond and, if it issues a favourable opinion within that period, the Ministry of Labour issues its decision as soon as possible thereafter, and in any event within one month of the report being issued. The Committee notes that, according to the Government, the issue raised by the Committee, in addition to being superseded in practice, is no longer valid in relation to the law, as the General Act on the public administration provides that, where the statutory time limits are not respected, those concerned may appeal to the respective higher authority. The Committee previously invited the Government to have these deadlines set out explicitly in Bill No. 13475 and notes the Government’s indication in its latest report that it has forwarded a copy of this request to the President of the Legislative Commission. The Committee requests the Government to indicate any developments in this respect.

Submission of legislative matters to a joint commission in the National Assembly. The Committee notes the Government’s indication in its report of its complete readiness and will to resolve the problems raised.

The Committee previously noted the initiatives taken by the high-level mission with a view to expediting the draft texts submitted to the Legislative Assembly on the matters raised by the Committee of Experts and that, when attending a special session of the Higher Labour Council (a dialogue body composed of some of the most important representatives of trade unions and employers and the Minister of Labour), the mission consulted its members and it was agreed unanimously to call on the Legislative Assembly to establish a joint commission with the technical assistance of the ILO to examine the Bill to reform labour procedures. It was also resolved that the Council would examine the other draft texts pending on labour matters with a view to studying them and facilitating their passage to the extent to which consensus was achieved.

The Committee hopes that the above joint commission in the National Assembly will address all pending matters without delay. The Committee requests the Government to provide information in this respect. The Committee notes that the Government has requested the technical assistance of the ILO to ascertain the conformity of the Bill to reform labour procedures (No. 15990) with the principles of Conventions Nos 87 and 98 and it suggests that such assistance should be provided as soon as the joint commission is established in the Legislative Assembly.

The Committee once again emphasizes that the pending matters raise important issues relating to the application of the Convention. Taking into account the various ILO missions that have visited the country over the years and the gravity of the problems, the Committee 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 this matter in its next report.

Comments by trade union organizations. The Committee noted previously that the Union or Public and Private Enterprise Workers (SITEPP) indicates that the unionization rate in the country is only 2.5 per cent in the private sector and that the commitments made to the ILO over many years relating to the draft legislation submitted to the Legislative Assembly have only been vain promises. The Committee notes that, according to the Government, the unionization rate is 9.37 per cent. The Committee requests the Government to provide official statistical data on the number of trade unions and higher level organizations (in the public and private sectors) and the number of trade union members. The Committee also notes the Government’s reply to the previous comments of the ITUC referring to acts of violence against the premises of a trade union and death threats against a trade union leader. The Committee notes that it consists of a criminal matter (and not unfair labour practices), and that the judicial authorities are competent as the matter relates to acts of common vandalism.

Finally, the Committee requests the Government to provide its comments on the ITUC’s communication, dated 26 August 2009 and particularly on: (1) its allegation that in the event of a strike the unions are required to provide the names of the strikers; (2) its statement that unions are practically non‑existent in the private sector; (3) the alleged unlawful arrest of a trade union leader in the construction sector; and (4) the violation of the Act by prohibiting trade union activities by solidarist associations in certain banana and pineapple ranches.

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

The Committee notes the Government’s report and the observations made by the Public and Private Enterprise Workers’ Union (SITEPP) and the International Trade Union Confederation (ITUC), dated 21 May and 28 August 2007, on the application of the Convention. The Committee also notes the report of the high‑level technical assistance mission which visited San José from 2 to 6 October 2006 in the context of Convention No. 98.

1. Prohibition upon foreigners from holding office or exercising authority in trade unions (article 60, second paragraph, of the Constitution and section 345(e) of the Labour Code). The Committee noted previously that Bill No. 13475 (currently on the agenda of the Legislative Assembly) amends section 345(e) of the Labour Code so that it no longer provides that the members of the executive board of a trade union must be of Costa Rican nationality or of Central American origin, or foreign nationals married to a Costa Rican wife and having completed five years of permanent residence in the country. Nevertheless, the Bill provides that the bodies of trade unions must comply with the provisions of article 60 of the Constitution, which provide that “foreigners are barred from positions of management or authority in trade unions”. The Committee noted previously that a draft reform of the Constitution, prepared with the assistance of the ILO, had been submitted to the Plenary of the Legislative Assembly in 1998, but it appears not to be on the current agenda of the Legislative Assembly. The Committee drew the Government’s attention to the importance of amending not only section 345 of the Labour Code, but also article 60, second paragraph, of the Constitution in order to abolish the excessive restrictions that are currently placed on the right of foreign nationals to hold trade union office, which are inconsistent with Article 3 of the Convention.

2. Obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee noted previously that Bill No. 13475 no longer establishes a requirement for the executive board to be appointed each year.

3. Restrictions on the right to strike: (i) requirement of “60 per cent of the persons who work in the enterprise, workplace or establishment concerned” – section 373(c) of the Labour Code; and (ii) prohibition of the right to strike for “workers engaged in rail, maritime and air transport enterprises” and “workers engaged in loading and unloading on docks and quays” – section 373(c) of the Labour Code.

The Committee previously noted with interest that, according to the Government, on 25 August 2005 the Judiciary referred to the Executive for submission to the Legislative Assembly a Bill on the reform of labour procedures, which benefited from ILO technical assistance. The Committee noted that, according to the Government, the above Bill takes into account the ruling of 27 February 1998 by the Constitutional Chamber and the recommendations of the Committee on Freedom of Association, and has been endorsed by the trade union organizations and employers’ associations, except with regard to certain provisions. The Committee observed that the Bill:

–           proposes 40 per cent of workers in order to call a strike (the employers’ associations rejected this percentage, citing the principle of democratic participation);

–           the right to strike is restricted only in essential services in the strict sense of the term, although these include the loading and unloading of perishable goods in ports; transport is considered to be an essential service only as long as the journey has not been completed;

–           strikes may no longer be deemed unlawful before they have occurred;

–           arbitration is introduced for disputes in essential services;

–           a special and very short summary procedure is introduced for workers with trade union immunity.

Moreover, in a direct request, the Committee observed that the Bill establishes a requirement for 40 per cent of the workers in order to call a strike and subjects strikes to a limit of 45 calendar days (after which arbitration is compulsory).

Furthermore, with regard to the right to strike, the Committee noted previously that a magistrate of the Supreme Court of Justice had indicated that of the 600 or so strikes that had occurred over the past 20 or 30 years, no more than ten had been declared lawful. Furthermore, according to the trade union federations, the procedure to set a strike in motion could last up to three years.

Need for Bill No. 13475, in amending section 344 of the Labour Code, to establish a specific and short period within which the administrative authority is to reach a decision on the registration of trade unions and after which, in the absence of a decision, legal personality is deemed to have been obtained. The Committee notes the Government’s indication that in practice registration applications are processed without delay and, if they fall short of documentary requirements, applicants are asked to remedy the matter and are entitled to appeal. The Department of Trade Union Organizations has 15 days within which to respond and, if it issues a favourable report within that period, the Ministry of Labour issues its decision as soon as possible thereafter and in any event within one month of the report being issued. The Committee requested the Government to have these deadlines established explicitly in Bill No. 13475.

The Committee notes that in its report the Government: (1) expresses its complete readiness and will to resolve the problems referred to and reiterates the statements made in its report in 2005; (2) has supported in the Legislative Assembly a draft reform of the Constitution formulated with the technical assistance of the ILO to overcome the prohibition on foreign nationals from having access to trade union office, and forwarded the comments of the Committee of Experts to the President of the Legislative Assembly; (3) in practice, the Ministry of Labour guarantees the full autonomy of trade union organizations to determine the duration of the mandate of trade union executive boards and the amendment of the legislation on this point is contained in Bill No. 13475; (4) with regard to the restrictions on the right to strike, the Bill to reform labour procedures (No. 15990) is undergoing the legislative process and the Government has convened a forum, with ILO assistance and with the participation of the authorities and the social partners, with a view to achieving consensus; Plenary Accord (Supreme Court of Justice) No. 16-2000 determines the judicial body competent as the depository of strike notifications, and the time scale and appeal procedures (very rapid) to which such a procedure is subject; and (5) with regard to the need to establish a specific and short period of time for the administration to issue an opinion on the registration of trade unions, in practice this problem has been resolved (decisions relating to administrative appeal procedures have to be notified within 15 days); nevertheless, a copy of the Committee’s comment has been forwarded to the President of the Legislative Commission which is responsible for the analysis of Bill No. 13475.

The Committee notes the initiatives taken by the high-level mission with a view to expediting the draft texts submitted to the Legislative Assembly on the matters raised by the Committee of Experts in the context of Convention No. 98. It notes with interest that, when attending a special session of the Higher Labour Council (a dialogue body composed of some of the most important representatives of trade unions and employers, and the Minister of Labour), the mission consulted its members on whether they would be prepared to conclude an agreement to facilitate the adoption of the Bill to reform labour procedure, call for the establishment of a joint commission in the National Assembly to agree on aspects of this Bill on which divergencies persist and subsequently consider facilitating other legislative texts also related to matters falling within the terms of reference of the mission. This agreement was concluded as follows: it was agreed unanimously to call on the Legislative Assembly to establish a joint commission with the technical assistance of the ILO to examine the Bill to reform labour procedure. It was also resolved that the Council would examine the other draft texts pending on labour matters with a view to studying them and facilitating their passage to the extent to which consensus was achieved. The Minister proposed that the request to the Assembly should be formulated in a joint note by the Executive, the Judiciary and the Higher Labour Council. The Minister undertook to seek the rapid examination of the Bill to reform labour procedure, the establishment of the joint commission and, finally, the agreement of the President of the Republic to receive the members of the Higher Labour Council.

The Committee hopes that the above joint commission in the National Assembly will be established without delay and will address all the pending matters. The Committee requests the Government to keep it informed in this respect. The Committee notes that the Government has requested the technical assistance of the ILO to ascertain the conformity of the Bill to reform labour procedure (No. 15990) with the principles of Conventions Nos 87 and 98 and hopes that such assistance will be provided as soon as possible.

The Committee notes that the SITEPP indicates that the unionization rate in the country is only 2.5 per cent in the private sector and that the commitments made to the ILO over many years relating to the draft legislation submitted to the Legislative Assembly have only been vain promises. The SITEPP refers in particular to matters relating to the application of Convention No. 98. The Committee requests the Government to provide its comments on the observations made by the ITUC relating to the application of the Convention, and recalls that the legislative issues referred to concern a series of issues relating to the application of the Convention in practice. The Committee emphasizes that certain of these comments refer to acts of violence against trade union premises and death threats against a trade union leader and it requests the Government to order the appropriate investigations and to keep it informed in this respect. 

The Committee emphasizes once again that the matters pending raise important issues relating to the application of the Convention. Taking into account the various ILO missions that 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 keep it informed in this respect.

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

The Committee takes note of the Labour Procedures Reform Bill, before the Legislative Assembly, which amends some provisions of the legislation on the right to strike.

The Committee notes in particular that the Bill establishes a requirement for 40 per cent of the workers in order to call a strike, subjects strikes to a limit of 45 calendar days (after which arbitration is compulsory) and includes the loading and unloading of perishable goods among the essential public services in which strikes are forbidden.

In the Committee’s view, these provisions are not fully consistent with the principles set forth in the Convention. It accordingly requests the Government to undertake an in-depth discussion with the social partners on these matters with a view to giving proper effect to the abovementioned principles in the legislation.

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

The Committee notes the Government’s report and the observations made by the Rerum Novarum Workers’ Confederation (CTRN) and the International Confederation of Free Trade Unions (ICFTU).

1. Provisions prohibiting foreigners from holding office or exercising authority in trade unions (article 60, second paragraph, of the Constitution and section 345(e) of the Labour Code). The Committee observed previously that Bill No. 13475 (currently on the agenda of the Legislative Assembly) amends section 345(e) of the Labour Code, so that it no longer provides that the members of the executive board of a trade union must be of Costa Rican nationality or of central American origin, or foreign nationals married to a Costa Rican wife and having completed five years of permanent residence in the country. The Committee pointed out that the Bill nonetheless establishes that the bodies of trade unions must comply with the provisions of article 60 of the Constitution, which provide that "foreigners are barred from positions of management or authority in trade unions". The Committee further noted that a draft reform of the Constitution, prepared with the assistance of the ILO, had been submitted to the Plenary of the Legislative Assembly in 1998 but that it appears not to be on the current agenda of the Legislative Assembly. The Committee draws the Government’s attention to the importance of amending not only section 345 of the Code, but also article 60, second paragraph, of the Constitution in order to abolish the excessive restrictions on the right of foreigners to hold trade union office, which are inconsistent with Article 3 of the Convention. The Committee requests the Government to keep it informed on this matter.

2. Obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee notes that there is no requirement in Bill No. 13475 for the executive board to be appointed each year.

3. Restrictions on the right to strike: (i) requirement of "60 per cent of the persons who work in the enterprise, workplace or establishment concerned" -section 373(c) of the Labour Code; (ii) prohibition of the right to strike for "workers engaged in rail, maritime and air transport enterprises" and "workers engaged in loading and unloading on docks and quays" - section 373(c) of the Labour Code.

The Committee notes with interest that, according to the Government, on 25 August 2005 the Judiciary referred to the Executive for submission to the Legislative Assembly a Bill on the reform of labour procedures which benefited from ILO technical assistance. The Committee notes that, according to the Government, the Bill takes into account the ruling of 27 February 1998 by the Constitutional Chamber and the recommendations of the Committee on Freedom of Association, and has been endorsed by the trade union organizations and employers’ associations except with regard to certain provisions. The Committee observes that the Bill:

-  proposes 40 per cent of workers in order to call a strike (the employers’ associations rejected this percentage, citing the principle of democratic participation);

-  the right to strike is restricted only in essential services in the strict sense, although these include the loading and unloading of perishable goods in ports; transport is considered to be an essential service only as long as the journey has not been completed;

-  strikes may no longer be deemed unlawful before they have occurred;

-  arbitration is introduced for disputes in essential services;

-  a special and very short summary procedure is introduced for workers with trade union immunity.

Furthermore, with regard to the right to strike, the Committee had previously noted an observation by a magistrate of the Supreme Court of Justice to the effect that of the 600 or so strikes that had occurred over the past 20 or 30 years, no more than ten had been declared lawful; furthermore, according to the trade union federations, the procedure to set a strike in motion could last up to three years. The Committee requests the Government to keep it informed of progress in the enactment of the Bill to reform labour procedures.

Need for Bill No. 13475, in amending section 344 of the Labour Code, to establish a specific and short period within which the administrative authority is to reach a decision on the registration of trade unions, and after which, in the absence of a decision legal personality is deemed to have been obtained. The Committee notes that, according to the Government: in practice, registration applications are processed without delay and if they fall short of documentary requirements the applicant is asked to remedy the matter and is entitled to appeal. The Department of Trade Union Organizations has 15 days within which to respond, and if it issues a favourable report within that period, the Ministry of Labour issues its decision as soon as possible thereafter and in any event within one month of the report. The Committee requests the Government to have these deadlines established expressly in Bill No. 13475.

The Committee points out that the matters pending raise important problems in terms of applying the Convention, and expresses the hope that in the near future it will be able to note substantial progress in both law and practice. It requests the Government to keep it informed on these matters.

The Committee is addressing a request directly to the Government concerning certain issues related to the right to strike in the new Bill.

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

The Committee notes the comments on the application of the Convention made by the Confederation of Workers Rerum Novarum (CTRN) and the International Confederation of Free Trade Unions (ICFTU), as well as the reply provided by the Government.

The Committee will examine these observations and the Government’s reply next year in the context of the regular reporting cycle on the application of the Convention, together with the other pending issues (see 2003 observation, 74th Session).

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

The Committee notes the Government’s report.

1. Prohibition upon foreign nationals from holding office or exercising authority in trade unions (article 60(2) of the Constitution and section 345(e) of the Labour Code). The Committee noted previously that Bill No. 13475 (which is currently on the agenda of the Legislative Assembly) amends section 345(e) of the Labour Code so that it no longer provides that the members of the executive board of a trade union must be of Costa Rican nationality, or of Central American origin, or foreign nationals married to a Costa Rican wife and having completed five years of permanent residence in the country; nevertheless, the above Bill provides that the bodies of trade unions must comply with the provisions of article 60 of the Constitution, which provides that "foreign nationals are prohibited from exercising direction or authority in unions". The Committee noted that a draft reform of the Constitution, prepared with the assistance of the ILO, had been submitted to the plenary of the Legislative Assembly in 1998, but that this text does not appear to be on the agenda of the current Legislative Assembly. The Committee drew the Government’s attention to the importance of amending not only section 345 of the Labour Code, but also article 60(2) of the Constitution to abolish the current excessive restrictions on the right of foreign nationals to hold trade union office, which are incompatible with Article 3 of the Convention. The Committee notes that, according to its report, the Government has forwarded a copy of the Committee’s comments to the President of the Legislative Assembly for information and the corresponding action. The Committee also notes that Bill No. 13475 is still on the agenda of the Legislative Assembly. The Committee requests the Government to report any developments at the legislative and/or constitutional level to guarantee the trade union rights of foreign nationals.

2. The obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee notes with interest that Bill No. 13475 no longer requires the appointment of the executive board each year. The Committee requests the Government to report on developments in the processing of the above Bill.

3. Restrictions on the right to strike: (i) necessity to obtain the approval of "60 per cent of the persons who work in the enterprise, workplace or establishment concerned" (section 373(c) of the Labour Code); and (ii) prohibition of the right to strike for "workers engaged in rail, maritime and air transport enterprises" and "workers engaged in loading and unloading on docks and quays" (section 373(c) of the Labour Code). The Committee notes that the Government has provided the text of the ruling by the Constitutional Chamber of the Supreme Court of Justice of 27 February 1998 declaring the above figure of 60 per cent to be constitutional. The Committee notes that, according the Government, based on the case law of the Supreme Court, the only prohibition of strikes that persists concerns essential services the interruption of which could endanger the life, personal safety or health of the whole or part of the population.

The Committee emphasizes that the exercise of the right to strike should not be subjected to legal or practical requirements which make its lawful exercise very difficult or impossible. The Committee considers that the various points raised are incompatible with the right of workers’ organizations to organize their activities and to formulate their programmes in full freedom, as set out in Article 3 of the Convention. The Committee requests the Government to take measures with a view to the amendment of the legislation to reduce the percentage of workers required to call a strike and to guarantee clearly that a strike may be called by workers in rail, maritime and air transport enterprises.

The Committee notes Directive No. 28 of the Executive Authority, dated 15 September 2003, issued in relation to a strike, which considers as essential services oil refineries and ports and orders the authorities to take the necessary measures to maintain the provision of the above services.

The Committee emphasizes that the above services are not essential services in the strict sense of the term and that the exercise of the right to strike should be guaranteed in such services, without it being possible, for example, to replace striking workers by other workers. The Committee trusts that in future the Government will not have recourse to directives of this type in non-essential services.

In its previous observation, the Committee also noted that a magistrate of the Supreme Court of Justice observed in ruling No. 16-2000 of the Constitutional Chamber that of the approximately 600 strikes that have occurred over the past 20 or 30 years, a maximum of ten have been declared legal. The Committee notes that case law has now clarified the judicial procedures relating to the lawful or unlawful nature of strikes and that hearings are currently held of the trade union organizations concerned within short periods of time. The Committee requests the Government to provide information on the proportion of strikes declared unlawful over the past two years, with an indication of the sectors concerned.

4. Necessity for Bill No. 13475, in amending section 344 of the Labour Code, to establish a short period within which the administrative authority may reach a decision concerning the registration of trade unions, and after which, if no decision has been issued, it is understood that they have obtained legal personality. The Committee notes the Government’s statement that, in practice and in accordance with the law, the administrative bodies reach a decision as soon as possible and in any event after no more than one month (after which, the assumption of an affirmative decision prevails in the event of the silence of the administration). The Committee requests that section 344 be amended to establish a specific short period.

5. Finally, the Committee notes that the Government has submitted its comments to the Higher Labour Council (a national tripartite body) with a view to their analysis by the commission responsible for examining draft labour legislation. The Committee emphasizes that the pending matters raise substantial problems with regard to the application of the Convention and hopes that it will be able to note important progress in the near future in both law and practice. The Committee requests the Government to keep it informed in this respect.

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

The Committee notes the Government’s report and the observation made by the Rerum Novarum Confederation of Workers in a communication dated 31 August 2001.

1. Prohibition upon foreign nationals from holding office or exercising authority in trade unions (article 60(2), of the Constitution and section 345(e) of the Labour Code). The Committee notes that Bill No. 13475 (which is currently on the agenda of the Legislative Assembly) amends section 345(e) of the Labour Code so that it no longer provides that the members of the executive board of a trade union must be of Costa Rican nationality, or of Central American origin, or foreign nationals married to a Costa Rican wife and having completed five years of permanent residence in the country; nevertheless, the above Bill provides that the bodies of trade unions must comply with the provisions of Article 60 of the Constitution, which provides that "foreigners are prohibited from exercising direction or authority in unions". The Committee notes that a draft reform of the Constitution, prepared with the assistance of the ILO, had been submitted to the Plenary of the Legislative Assembly in 1998, but that this text does not appear to be on the agenda of the current Legislative Assembly. The Committee draws the Government’s attention to the importance of amending not only section 345 of the Labour Code, but also article 60(2), to abolish the current excessive restrictions on the right of foreign nationals to hold trade union office, which are incompatible with Article 3 of the Convention. The Committee requests the Government to provide information on this matter.

2. The obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Code). The Committee notes with interest that Bill No. 13475 no longer requires the appointment of the executive board each year.

3. Inequality of treatment between solidarist associations and trade unions with regard to the management of compensation funds for dismissed workers. The Committee notes the Workers’ Protection Act of 16 February 2000 and notes with satisfaction that sections 30 and 74 of the Act allow trade union organizations to establish administrators to manage occupational deposit funds and pension funds.

4. Restrictions on the right to strike: (i) necessity to obtain the approval of 60 per cent of the persons who work in the enterprise, workplace or establishment concerned (section 373(c) of the Labour Code); and (ii) prohibition of the right to strike for workers engaged in rail, maritime and air transport enterprises and workers engaged in loading and unloading on docks and quays (section 373(c) of the Labour Code). The Committee notes that on these matters the Government refers to the wording of the ruling by the Constitutional Chamber of 27 February 1998 (which is still awaited) or indicates that the Committee’s recommendations will be considered by the authorities with a view to a possible amendment. The Committee hopes that the Government will transmit the full ruling in question as soon as it is available.

Moreover, the Committee notes that a magistrate of the Supreme Court of Justice indicated that, of the approximately 600 strikes that have occurred over the past 20 or 30 years, a maximum of ten have been declared legal, and that, according to the trade union federations, the procedure for calling a strike may take three years.

The Committee emphasizes that the exercise of the right to strike should not be subject to legal or practical requirements which render its legal exercise very difficult or impossible. The Committee considers that the various points raised are incompatible with the right of worker’s organizations to organize their activities and to formulate their programmes in full freedom, as set out in Article 3 of the Convention, and that these matters need to be given priority by the authorities and the social partners. The Committee requests the Government to provide information in its next report on the measures adopted.

5. Necessity for the Labour Code to reflect the ruling by the Supreme Court of Justice that section 14 of the Labour Code is unconstitutional in excluding from its scope (and therefore from trade union rights) workers in agricultural or stock-raising enterprises which permanently employ no more than five workers. The Committee notes with interest that the March 2001 edition of the Labour Code explicitly acknowledges this ruling that the above provision is unconstitutional.

6. Necessity for Bill No. 13475, in amending section 344 of the Labour Code, to establish a specific short period within which the administrative authority may reach a decision concerning the registration of trade unions, and after which, if no decision has been issued, it is understood that they have obtained legal personality. The Committee notes that the Government has not commented on this matter and requests it to amend section 344 as indicated.

Finally, the Committee has been informed of the establishment of a tripartite committee to examine the Committee’s comments with a view to reaching agreements with the parties on solutions which are acceptable with regard to the matters relating to freedom of association, so that they can be reflected in national law and practice. The Committee emphasizes that the pending matters raise substantial problems with regard to the application of the Convention and hopes that it will be able to note important progress in the near future in both law and practice.

The Committee requests the Government to keep it informed on these matters, including the progress made in processing Bill No. 13475.

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

The Committee notes the Government’s report, resolution No. 346-98 of August 1998, the draft reform of the Labour Code and Legislative Decree No. 832. It also notes the observations made by the Rerum Novarum Confederation of Workers (CTRN), the Costa Rican Transport Workers’ Union (SICOTRA) and the Ministry of Finance Employees’ Union (SINDHAC) with regard to the application of the Convention. It also recalls that its previous comments referred to various discrepancies between national law and practice and the guarantees set out in the Convention, in particular:

-  article 60(2) of the Constitution and section 345(e) of the Labour Code, under which foreign nationals are prohibited from holding office or exercising authority in trade unions;

-  sections 375 and 376(c) of the Labour Code, which prohibit the exercise of the right to strike in the rail, maritime and air transport sector;

-  the inequality of treatment between solidarist associations and trade unions with regard to the management of compensation funds for dismissed workers;

-  section 14 of the Labour Code, which excludes from the scope of the Code agricultural and stock-raising enterprises which permanently employ no more than five workers; and

-  the observations made by the Costa Rican Inter-Confederal Committee (CICC) and by the Workers’ Union of the Institute for Agricultural Development (UNEIDA) regarding the public authorities’ restrictions on trade union organizations with regard to the formulation of their statutes, the election of their representatives, the acquisition of legal personality and their activities, including strikes.

Prohibition upon foreign nationals from holding
office or exercising authority in trade unions

The Committee notes the submission by the Minister of Labour and Social Security of a draft amendment to article 60(2) of the Constitution of the country with regard to the prohibition upon foreign nationals from holding office or exercising authority in trade unions. Furthermore, the Committee notes that, in accordance with a Unanimous Affirmative Opinion issued by the Permanent Committee on Legal Matters of the Legislative Assembly respecting the Bill to amend various sections of the Labour Code and Legislative Decree No. 832, section 345(e) of the Labour Code, which prohibits foreign nationals from holding office or exercising authority in trade unions, should be repealed. The Committee expresses the strong hope that this Bill will be adopted in the very near future and that the repeal of this provision will be reflected in the Constitution (article 60(2)).

Prohibition upon exercising the right to strike
in the rail, maritime and air transport sector

The Committee notes that the Government currently prefers to remain silent on this issue while awaiting the publication of the considerations on issues of form and substance on which the Constitutional Chamber based its opinion on 27 February 1998 in declaring unconstitutional subsections (a) and (b) of section 376 (which prohibited the right to strike for public officials and agricultural workers, respectively), while maintaining this prohibition for workers in the rail, maritime and air transport sector (subsection (c)). In view of the time which has since elapsed and the fact that the CTRN, SICOTRA and the SINDHAC are criticizing the failure to comply with the Convention in the transport sector, the Committee expresses the strong hope that in the very near future the Government will take the appropriate measures to give legal recognition to the right to strike of workers in the above sectors. The Committee requests the Government to inform it in its next report of any legislative progress made in this respect and to forward a copy of the legislative text once it has been adopted.

Inequality of treatment between solidarist associations
and trade unions in relation to the management of
compensation funds for dismissed workers

The Committee asked the Government to modify its legislation so as to guarantee to the trade unions the faculty to administer the employment compensation in the same way as the solidarist associations in order to eliminate all inequality in this matter. The Committee notes with interest that, according to the Government, this inequality has been removed by means of the Workers’ Protection Act of 15 February 2000. This text was prepared jointly by representatives of employers, solidarist associations, cooperatives, trade unions and the Government, so that workers are able to choose in full freedom the authorized body which will administer the funds deposited in their name by their employer. The Committee requests the Government to provide the complete text of the above Act with its next report.

Exclusion of agricultural workers in small
enterprises from the scope of the Labour Code

With regard to section 14 of the Labour Code, subsection (c) of which excludes from its scope agricultural or stock-raising enterprises which permanently employ no more than five workers, the Committee notes that, according to the Government, this provision was declared unconstitutional in 1952 by a Decree which provided that "genuine agricultural or stock-raising establishments which employ five or fewer workers shall be governed by the provisions of this Code". The Committee regrets to note that this has not been reflected in the Code. The Committee therefore once again reminds the Government that, in accordance with Article 2 of the Convention, all workers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing to further and defend their occupational interests. The Committee requests the Government to send it an updated version of the Labour Code which also provides that agricultural workers in small establishments enjoy the guarantees set out in the Code and, in particular, the right to organize.

Government interference in the trade union activities
of the CICC and of the UNEIDA

With regard to the observations made by the Costa Rican Inter-Confederal Committee, the Committee notes with interest the Unanimous Affirmative Opinion of the Permanent Committee on Legal Matters of the Legislative Assembly, dated 16 March 1999, respecting the Bill to "reform various sections of the Labour Code and Legislative Decree No. 832", repealing subsection (a) of section 346 of the Labour Code, which establishes the obligation that the assemblies of workers’ organizations elect annually the executive committee.

The Committee nevertheless observes that the Bill does not envisage repealing the restrictions on the right to strike set out in subsection (c) of section 373 of the Labour Code, by virtue of which, to call a legal strike, the workers must "constitute at least 60 per cent of the persons who work in the enterprise, workplace or commerce in question". The Committee recalls in this respect that, if a member State deems it appropriate to establish in its legislation provisions for the requirement of a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see the 1994 General Survey on freedom of association and collective bargaining, paragraph 170).

The Committee also notes that, by virtue of new section 344 of the above Bill, the Social Organizations Department will merely fulfil the function of registration in relation to the granting of legal personality to trade unions. While welcoming this possible amendment, the Committee notes that in no event should administrative silence give rise to undue delays in the acquisition of legal personality by trade unions, and that the elapse of a reasonable period of time established by law without a response should be interpreted as indicating a positive outcome in this respect.

The Committee takes note of the comments of the Costa Rican Union of Chambers and Association of Private Enterprises (UCCAEP), which praises the action of the constitutional bodies in their efforts to adapt the national laws and practice to the Convention.

The Committee requests the Government to provide information in its next report on the measures which have been adopted or are envisaged to bring the law and practice into conformity with the Convention.

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

The Committee notes that the Government has not replied to its comments in regard to section 14(c) of the Labour Code, which excludes from its scope agricultural or stock-raising enterprises which permanently employ no more than five permanent workers. In this respect, the Committee once again reminds the Government that in accordance with Article 2 of the Convention all workers, without distinction whatsoever, have the right to establish and to join organizations of their own choosing.

In this respect, the Committee once again requests the Government to inform it of any measures adopted to ensure that agricultural workers enjoy the right of association.

The Committee also notes the comments of the Costa Rican Inter-Confederal Committee regarding the Ministry of Transport's restrictions on trade union organizations, the preparation of trade union statutes, the acquisition of legal personality and trade union activities, including strikes (a situation noted, for example, in the Workers' Union of the Institute for Agricultural Development).

The Committee notes the Government's statement in respect of the comments made by the Costa Rican Inter-Confederal Committee. In particular, the Committee notes with interest that by virtue of Circular No. 346-98, the Ministry of Labour and Social Security recognizes that section 346(a) which lays down the obligation that members of workers' organizations annually elect the Executive Committee, violates Article 3 of the Convention and article 60 of the Costa Rican Political Constitution, since workers' organizations should be able to determine, in full freedom and without any interference, the term of office held by their executive committees and other bodies which have been legally established. In this respect, the Committee requests the Government to adopt the necessary measures to amend this provision to enable workers' organizations to determine the term of office held by their executive committees through their constitutions and not as stipulated by law.

With regard to the non-acceptance of the Executive Committee of UNEIDA by the authorities of the Institute for Agricultural Development, the Committee notes the Government's statement in respect of the decision handed down by the courts to the effect that the Ministry of Labour is not competent to certify the legal personality of UNEIDA, since the act of rejecting the Executive Committee is an internal decision concerning the organization which elected it, and requests the Government to adopt the necessary measures to ensure that workers have the right to elect their representatives in full freedom and to carry out their programmes without interference.

The Committee had noted with satisfaction in its observation, in respect of the exercise of the right to strike, the decision handed down by the Supreme Court of Justice to the effect that sections 375(a) and 376(b) of the Labour Code, which prohibited the right to strike in the public, agricultural or stock-raising and forestry sectors, are unconstitutional.

The Committee request the Government to provide information on the above points in its next report.

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

The Committee notes the Government's report and recalls its previous comments regarding the following provisions:

-- section 60(2) of the Constitution, which prohibits foreigners from holding office or exercising authority in trade unions;

-- sections 375 and 376(a), (b) and (c) of the Labour Code, which prohibit the exercise of the right to strike in the public, agricultural and stock-raising, forestry, rail, maritime and air transport sectors.

In regard to the second question, the Committee also notes with satisfaction the information contained in the Government's report, in regard to the ruling on 27 February 1998 by the Constitutional Council of the Supreme Court of Justice which found unconstitutional the prohibition of the exercise of the right to strike in the public, agricultural and stock-raising and forestry sectors (sections 375 and 376(a) and (b) of the Labour Code).

Nevertheless, the Committee regrets that the prohibition on the right to strike in the rail, maritime and air transport sectors as provided for in section 376(c) of the Labour Code remains in force.

As regards the prohibition on foreigners holding office or exercising authority in trade unions (section 60(2) of the Constitution), the Committee also notes the Government's statement that the draft Bill to amend this provision, submitted to the Legislative Assembly in August 1997, was returned without any progress being made since the Executive Authority does not have the right to initiate reforms of the Political Constitution. In this respect, the Committee also notes with interest that, in accordance with the Government's statement, the Ministry of Labour and Social Security, to follow the necessary legal procedures, submitted a report to the President of the Legislative Assembly on 8 May 1998 to intercede in Plenary Session to pursue the submission of the Constitutional Reform Bill in question in accordance with the law.

The Committee refers to the question of inequality of treatment between solidarist associations and trade unions in regard to the management of compensation funds for dismissed workers and recalls that it also noted with interest the draft text on the Occupational Capitalization and Economic Democratization Fund, which gave effect to the Committee's request that trade union organizations should also be able to manage compensation funds for dismissed workers. In this respect, the Committee requests the Government to keep it informed of the situation on the draft text in question.

The Committee expresses the firm hope that the Government will continue to make every effort to repeal the legislation which prohibits the right to strike in the rail, maritime and air transport sectors and prevents foreigners from holding office or exercising authority in trade unions, if they so wish. The Committee requests the Government to keep it informed of any measures adopted on the above points.

Finally, the Committee is addressing a request directly to the Government.

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

The Committee notes that section 14(c) of the Labour Code excludes agricultural or stock-raising enterprises which occupy no more than five permanent workers. In this respect, the Committee reminds the Government that under Article 2 of the Convention all workers, without distinction whatsoever, have the right to establish and to join organizations of their own choosing.

On this matter, the Committee requests the Government to inform it of any measures adopted to ensure that agricultural workers enjoy the right of association.

The Committee also notes the comments of the Costa Rican Inter-Confederal Committee regarding the restriction on trade union organizations by the Ministry of Labour when preparing its own Constitution, obtaining legal personality and conducting trade-union activities, including strikes (a situation noted, for instance, in the Association of Footballers of Costa Rica and the Workers' Union of the Institute for Agricultural Development).

The Committee requests the Government to send its observations on the matters raised.

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

The Committee notes the Government's report as well as the information supplied by the Government representative and the debate which took place in the Conference Committee in June 1997 and recalls that its comments concerned the following provisions:

-- article 60(2) of the Constitution which prohibits foreigners from holding office or exercising authority in trade unions;

-- sections 368 and 369(a), (b) and (c) of the Labour Code (sections 375 and 376 under the new numbering as revised by legislative reforms up to 1996), which prohibit the exercise of the right to strike in the public sector, in the stock-raising and forestry sector and in the rail, maritime and air transport sector.

The Committee notes with interest that in August 1997 the Government submitted to the Legislative Assembly two Bills prepared with ILO technical assistance, to amend article 60, second paragraph, of the Constitution as well as section 369(b) of the Labour Code (section 376(b) under the new numbering as revised by legislative reforms up to 1996) for the purpose of bringing them into conformity as indicated by the Committee.

The first Bill repeals the prohibition on foreigners from holding office or exercising authority in trade unions, and the second repeals the prohibition on the exercise of the right to strike in the stock-raising and forestry sector.

The Committee requests the Government to keep it informed of any progress made regarding the adoption of the two Bills in question and to send it copies of the texts once they have been approved.

The Committee hopes that the Government will continue to make efforts to eliminate from legislation the prohibitions on the right to strike in the public sector (with the possible exception of public servants exercising authority in the name of the State) and in the rail, maritime and air transport sector (now sections 375 and 376 of the Labour Code). The Committee requests the Government to keep it informed of any measures adopted in this respect.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1695 (see the 302nd Report, paragraphs 246-255, approved by the Governing Body at its 265th Session in March 1996). The Committee recalls that its previous comments concerned:

- the prohibition on foreigners from holding office or exercising authority in trade unions (section 60(2) of the Constitution);

- the prohibition upon exercising the right to strike in the public sector and in the agricultural, stock-raising and forestry sectors (sections 368 and 369(a) and (b) of the Labour Code).

With reference to the prohibition placed on strikes by pilots in the airline LACSA (Case No. 1695), based on sections 368 and 369(c) of the Labour Code, the Committee draws the Government's attention to the principle whereby the right to strike may be limited, or even prohibited in the public service should be limited to public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see the General Survey on freedom of association and collective bargaining, 1994, paragraphs 158 and 159). In accordance with the above principle, transport services in general are not essential "in the strict sense of the term" and the Committee of Experts therefore concurs with the Committee on Freedom of Association in requesting the Government to take measures to amend the legislation so as to guarantee the right to strike in the air transport sector and, in general, in all services that are not essential in the strict sense of the term.

The Committee notes the Government's statement that it will transmit the comments of the Committee of Experts to the competent authorities and that the Assembly has still not approved the Bill respecting the occupational capitalization and economic democratization fund and the Bill on the statutory system of public employment and the civil service.

The Committee expresses the firm hope that the Government will take the necessary measures to eliminate from the legislation the prohibitions on the exercise of the right to strike in the public sector, as set out above, and in the agricultural, stock-raising and forestry sectors, as well as in transport services, and to introduce the possibility for foreigners to hold office in trade union organizations, at least after a reasonable period of residence in the country.

The Committee requests the Government to transmit any draft text that is formulated in relation to the above matters so that it can analyse its conformity with the principles of freedom of association.

[The Government is asked to provide a detailed report for 1997.]

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

The Committee notes that the Government's report was received when its work had already begun. It observes that the report does not contain any specific information to the questions raised. In these circumstances, the Committee can only repeat its previous observation which read as follows:

The Committee notes with interest two Bills which give effect to requests it had made for trade union organizations, and not just solidarist organizations, to be able to administer compensation funds for dismissed workers (the Bill respecting the occupational capitalization and economic democratization fund), under which the concept of public services for which strikes are prohibited is limited to essential services in the strict sense of the term, namely those the interruption of which could endanger the life, safety or health of the whole or part of the population (the Bill on the statutory system of public employment and civil service). The Committee recalls the importance of repealing subsections (a) and (b) of section 369 of the Labour Code, which excessively restricts strikes in the public, agricultural and forestry sectors. Finally, with regard to the prohibition on foreigners from holding office or exercising authority in trade unions (section 60(2) of the Constitution), the Committee notes that the Government has established a committee in the Ministry of Labour to undertake an exhaustive analysis of this matter and has formally requested the technical assistance of the Office with a view to assisting and guiding the process of modifying the Constitution and finding a solution which is in accordance with ILO principles. The Committee welcomes the considerable progress which has been made as regards the application of the Convention and requests the Government to keep it informed of developments relating to the two above Bills (for which technical assistance has been received from the Office) and the question of the possibility of foreigners being able to hold trade union office.

END OF REPETITION

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

The Committee notes the Government's report and the report of the direct contacts mission which visited Costa Rica from 4 to 8 October 1993.

The Committee notes Legislative Decree No. 7348 of 18 June 1993 and Act No. 7360 of 4 November 1993 to reform the Act on solidarist associations, the Labour Code and the Basic Act of the Ministry of Labour, which was adopted three weeks after the conclusion of the direct contacts mission.

In this respect, the Committee notes with satisfaction that Legislative Decree No. 7348 repeals sections 333 and 334 of the Penal Code, under which public officials and employees who went on strike could be punished by imprisonment and fines. The Committee also notes with satisfaction that Act No. 7360 of 4 November 1993 complies with various requests made by the Committee in its previous observation:

- with regard to the request by the Committee of Experts and the Committee on Freedom of Association that solidarist associations refrain from engaging in trade union activities and, in particular, in collective bargaining, the new Act prohibits these associations from "undertaking any kind of activity tending to combat or in any way hinder the formation and operation of trade unions and cooperative organizations"; "signing collective agreements or direct arrangements relating to labour"; "participating in hiring and collective labour agreements". The new Act also states that "When there is a trade union in an enterprise, to which at least a simple majority of its workers belong, the employer is prohibited from collective bargaining of any type with anyone but the union. Any agreement signed that conflicts with the provisions of this section shall not be registered or approved by the Ministry of Labour and Social Security, nor can it oppose trade union interests";

- with regard to the request by the Committee of Experts and the Committee on Freedom of Association that all unequal treatment of solidarist and trade union associations be eliminated, under the new Act trade unions may be formed with a minimum of 12 members (the same number as is required for solidarist associations);

- with regard to the request by the Committee of Experts and the Committee on Freedom of Association that effective protection be guaranteed against all types of anti-union discrimination, the new Act:

(a) prohibits "actions or omissions that tend to avoid, limit, restrain or prevent the free exercise of the collective rights of workers, their trade unions or coalitions", and also establishes that "any act arising from such actions or omissions is absolutely null and void and shall be penalized under the provisions of the Labour Code, its supplementary or appended Acts concerning infringements of prohibitive provisions";

(b) stipulates that the following shall enjoy labour stability: members of trade unions being formed (for a period of no longer than four months); certain trade union officials (while holding their posts and for six months subsequently); and candidates for the executive committee (for three months following announcement of their candidacy). In the case of the dismissal without just cause of workers enjoying labour stability, the Act stipulates that "the competent labour court shall declare such dismissal null and void, and shall subsequently order that the worker be reinstated and paid all outstanding wages, in addition to penalties for which the employer is liable pursuant to this Code and its supplementary and appended Acts";

(c) stipulates that "punishable infractions are those actions or omissions committed by employers, workers or their respective organizations that transgress the norms provided in Conventions adopted by the International Labour Organization, ratified by the legislative body, and the norms provided in this Code and in social security Acts". The new Act provides a list of penalties, which may be as high as 23 months of minimum wages.

The Government also stated that on 8 October 1993, the Supreme Court of Justice declared receivable an appeal for enforcement of constitutional rights (amparo), in direct application of Conventions Nos. 87, 98 and 135, ordering the reinstatement of the trade union members who had been dismissed without notification of the grounds of their dismissal.

With regard to the question of the exclusion from the scope of the Labour Code (and therefore from its provisions on freedom of association and collective bargaining) of small agricultural and stock-raising enterprises with no more than five permanent employees (section 14(c) of the Labour Code), the Committee notes with interest the text of Decree No. 2 of 29 January 1952 of the President of the Republic which declares the Labour Code applicable to the above enterprises, and the text of a decision by the Supreme Court of Justice of 22 July 1954 declaring section 14(c) of the Labour Code inapplicable on the grounds that it is contrary to section 63 of the Political Constitution.

Similarly, with regard to the Committee's request to guarantee the right of trade union leaders to hold meetings on plantations, the Committee notes an administrative order "of compulsory application" adopted by the Ministry of Labour and Social Security on 15 April 1993. The Committee notes that the above order provides that "vigilance shall be increased in all sectors, including plantations, to ensure that the right of association of workers and their trade union leaders is not impeded", with the provision that "in the event that violations are detected, the procedures shall be put into motion (by this is understood the labour inspection services) to apply the sanctions set out in the law".

The Committee also notes with interest two Bills which give effect to requests it had made for trade union organizations, and not just solidarist organizations, to be able to administer compensation funds for dismissed workers (the Bill respecting the occupational capitalization and economic democratization fund), under which the concept of public services for which strikes are prohibited is limited to essential services in the strict sense of the term, namely those the interruption of which could endanger the life, safety or health of the whole or part of the population (the Bill on the statutory system of public employment and civil service, which repeals subsections (a) and (b) of section 369 of the Labour Code, which excessively restricted strikes in the public, agricultural and forestry sectors).

Finally, with regard to the prohibition on foreigners from holding office or exercising authority in trade unions (section 60(2) of the Constitution), the Committee notes that the Government has established a committee in the Ministry of Labour to undertake an exhaustive analysis of this matter and has formally requested the technical assistance of the Office with a view to assisting and guiding the process of modifying the Constitution and finding a solution which is in accordance with ILO principles.

The Committee welcomes the considerable progress which has been made as regards the application of Conventions Nos. 87, 98 and 135 and requests the Government to keep it informed of developments relating to the two above Bills (for which technical assistance has been received from the Office) and the question of the possibility of foreigners being able to hold trade union office.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes that the Government's report has not been received.

1. Solidarist associations

The Committee notes the conclusions of the Committee on Freedom of Association at its May and November 1990 and May 1991 meetings following its examination of a complaint presented by the International Confederation of Free Trade Unions concerning the violation of trade union rights in the law and practice respecting solidarist associations and their impact on trade union organizations (see 272nd, 275th and 278th Reports of the Committee (Case No. 1483), paras. 389 to 444, 240 to 322 and 174 to 191, respectively), and the report of the direct contacts mission to Costa Rica in the context of this case.

According to the Act on Solidarist Associations and the above-mentioned reports, solidarist associations are associations of workers (including senior staff and personnel having the employer's confidence). They are often set up on the initiative of the employer, depend on a financial contribution from the employer and are financed in accordance with the principles of mutual benefit societies by both workers and employers for economic and social purposes of material welfare and of unity and cooperation between workers and employers.

The Committee expresses the firm hope, as does the Committee on Freedom of Association, that the Government will take the necessary legislative and other measures as a matter of urgency in order to:

- guarantee that solidarist associations do not become involved in trade union activities (including collective bargaining by means of direct settlements between an employer and a group of non-unionized workers);

- guarantee effective protection against all forms of anti-union discrimination (section 80 of the Labour Code in force allows dismissal without the grounds being specified if the corresponding compensation is paid, including in cases involving trade union leaders and workers carrying out trade union activities; moreover, the Labour Code provides for outdated fines for violations of the provisions on freedom of association - i.e. of between 300 and 1,000 colones; and

- guarantee the elimination of all inequalities of treatment between solidarist associations and trade unions (the Act on Solidarist Associations grants a series of advantages to solidarist associations over unions in certain areas: a lower minimum number of workers required, the possibility of engaging in profit-making activities, better access to compensation in cases of justified dismissal, the possibility of managing termination funds).

2. The right of trade union leaders to hold meetings on plantations

The Committee wishes to point out that on many occasions it has requested the adoption of a statutory provision guaranteeing the right of trade union leaders to hold meetings on plantations. In the absence of any information from the Government on this matter, the Committee once again requests the Government to take the necessary steps as soon as possible to ensure the adoption of a statutory provision of this kind.

3. Right to strike of trade unions of certain categories of workers

The Committee has pointed out that sections 369(a), (b), (d) and (e) of the Labour Code prohibits strikes in the public services, i.e. those in which the work is performed by persons in the employment of the State or a state institution, if the work in question carried out by the State or state institution is not of the same nature as work performed also by private enterprises carried on for profit; work performed by employees engaged in the sowing, cultivation, care or harvesting of agricultural or silvicultural products or in stock-raising and in the processing of produce in cases where it would deteriorate; and those declared by the State to fall into this category. The Committee has repeated in its comments that any prohibition or restriction of strikes should be confined to the following three cases: strikes in essential services in the strict sense of the term, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population; strikes by public servants acting in their capacity as agents of the public authority; and strikes during an acute national crisis. In these circumstances and in the absence of any information from the Government, the Committee stresses the need to amend section 369 of the Labour Code to bring it into conformity with the principles stated above, and asks the Government to take the necessary measures to that end.

4. Prohibition on foreigners from holding office or exercising authority in unions

In a previous direct request in which it addressed the application of the provision of Article 3 of the Convention establishing the free election of trade union leaders, the Committee noted the Government's statement concerning the prohibition on foreigners from holding office or exercising authority in unions (article 60(2) of the Constitution). The Committee considers that the legislation should be made more flexible to make it possible for organizations to elect their leaders freely and without interference and for foreign workers to have access to trade union functions, at least once a certain period of residence has been completed in the host country (see paragraph 160 of the 1983 General Survey on Freedom of Association and Collective Bargaining). The Committee asks the Government to take the necessary measures in this regard.

5. Right to organize of workers in small agricultural and stock-raising enterprises

In a previous direct request concerning the right to organize or workers in small agricultural and stock-raising enterprises (with up to five permanent employees), who are excluded from the scope of the Labour Code by virtue of section 14(c), the Committee considers that the right to organize and to bargain collectively should be guaranteed to these workers. It hopes that the legislation will be amended in this respect in the near future.

The Committee asks the Government to keep it informed of any developments in the matters referred to in the present observation and, in view of the fact that the Government has requested technical assistance from the International Labour Office, it expresses the hope that the legislation will be brought fully into conformity with the principles laid down in the Convention as soon as possible.

[The Government is asked to supply full particulars to the Conference at its 80th Session]

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

With reference to its previous comments on the application of Article 3 of the Convention as regards the free election of trade union officers, the Committee notes the Government's statements concerning the prohibition on foreigners from holding office or exercising authority in unions (article 60(2) of the Constitution). This restriction disappears when the foreigner acquires Costa Rican citizenship. According to the Government, in the case of Spanish Americans, citizenship can be acquired after only two years of residence in the country, while in other cases there is a minimum period of five years. The Committee considers that greater flexibility should be given to the legislation in order to make it possible for organisations to elect freely their leaders without interference and for foreign workers to have access to trade union functions, at least once a certain period of residence has been completed in the host country (see paragraph 160 of the 1983 General Survey on Freedom of Association and Collective Bargaining).

With regard to the right to organise of workers in small agricultural and stock-raising enterprises (with up to five permanent employees), who are excluded from the scope of the Labour Code by virtue of section 14(c), the Committee noted with interest in its previous direct request the Government's statements to the effect that in the draft integral reform of the Labour Code this provision of the current Labour Code has been deleted and that the only restriction on forming a trade union is to obtain the minimum number of 20 workers, which may be circumvented by combining with workers from other agricultural enterprises.

The Committee requests the Government to continue informing it of the measures that have been adopted on these two points in order to bring them into complete conformity with the Convention, and to transmit the text of the new Labour Code as soon as it is adopted.

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

The Committee notes the Government's report, and the interim conclusions of the Committee on Freedom of Association at its May and November 1990 meetings following its examination of a complaint presented by the International Confederation of Free Trade Unions (Case No. 1483) concerning the violation of trade union rights in the law and practice respecting solidarist associations and their impact on trade union organisations and on the exercise of the rights set out in the Convention (see the 272nd and the 275th Reports of the Committee, paragraphs 389 to 444 and 240 to 322). Since the Committee on Freedom of Association has not reached definitive conclusions concerning the above complaint and since, at the request of the Committee on Freedom of Association, the Government has agreed to a direct contacts mission, the Committee defers its examination of the questions raised concerning the solidarist movement, in order to be able to take account of the report of the above-mentioned mission and the subsequent conclusions of the Committee on Freedom of Association.

The Committee of Experts recalls that its previous comments related to:

- the right of trade union leaders to hold meetings on plantations;

- restrictions on the right to strike of trade unions of certain categories of workers.

1. The right of trade union leaders to hold meetings on plantations

The Committee wishes to point out that on many occasions it has requested the adoption of a statutory provision guaranteeing the right of trade union leaders to hold meetings on plantations. On the basis of the Government's previous report, the Committee had requested the Government to indicate which legislative or administrative measures it was referring to when it indicated that the right to hold meetings on plantations had to be regulated. The Committee notes that, in its latest report (received in November 1990), the Government indicates that, within a period of approximately six months, a draft text of an integral reform of the Labour Code, in relation to which the ILO Office in Costa Rica has been collaborating, will be submitted to the Legislative Assembly in order to adapt the regulations in question to the principles of the ILO. Since the Government's reply is not sufficiently precise, the Committee requests it to include in the draft text of the integral reform of the Labour Code a specific provision guaranteeing the right of trade union leaders to hold meetings on plantations.

2. Right to strike of trade unions of certain categories of workers

The Committee has pointed out on numerous occasions that section 369(a), (b), (d) and (e) of the Labour Code prohibits strikes in the public services, that is: those in which the work is performed by persons in the employment of the State or a state institution, if the work in question carried out by the State or a state institution is not of the same nature as work performed also by private enterprises carried on for profit; work performed by employees engaged in the sowing, cultivation, care or harvesting of agricultural or silvicultural products or in stock-raising, and in the treatment of produce in cases where it would deteriorate, and those declared by the State to fall into this category. The Committee repeated in its comments that any prohibition or restriction of strikes should be confined to the following three cases: strikes in essential services in the strict sense of the term, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population; strikes by public servants acting in their capacity as agents of the public authority; and strikes during an acute national crisis.

In its latest report, the Government once again states that the draft text of the integral reform of the Labour Code is intended to adapt the regulations governing these matters to ILO principles. Although the draft includes improvements, the Committee nevertheless considers, in relation to section 450(b) of the above draft, that transport and fuel enterprises and loading and unloading in airports and docks do not appear prima facie to constitute essential services in the strict sense of the term. The Committee therefore trusts that the committee set up to draft the integral reform of the new Labour Code will bring this point into full conformity with the Convention.

The Committee requests the Government to keep it informed of developments concerning the points raised in its observation and hopes that in the near future the legislation will be brought into full conformity with the principles set out in the Convention.

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

The Committee addressed a direct request to the Government concerning the following matters:

- the prohibition of foreigners from holding trade union office;

- the right to organise of workers in small agricultural and stock-raising enterprises, who are excluded from the scope of the Labour Code.

Article 60 of the Constitution indeed prohibits foreigners from holding trade union office. Furthermore, under the terms of section 14(c) of the Labour Code, agricultural or stock-raising enterprises which employ permanently not more than five employees are excluded from its scope.

The Committee notes the Government's statements concerning the prohibition of foreigners from holding office or exercising authority in unions (article 60(2) of the Constitution). This restriction disappears when the foreigner acquires Costa Rican citizenship. According to the Government, in the case of Spanish Americans, citizenship can be acquired after only two years of residence in the country while in other cases there is a minimum period of five years.

While taking due note of these indications, the Committee considers that greater flexibility should be given to the legislation in order to make it possible for organisations to elect freely their leaders without interference and for foreign workers to have access to trade union functions, at least once a certain period of residence has been completed in the host country (see paragraph 160 of the 1983 General Survey of the Committee of Experts on Freedom of Association and Collective Bargaining).

With regard to the right to organise of workers in small agricultural and stock-raising enterprises, who are excluded from the scope of the Labour Code by virtue of section 14(c), the Committee notes with interest the Government's statements to the effect that in the draft integral reform of the Labour Code this provision of the current Labour Code has been completely suppressed and that the only restriction on forming a trade union is obtaining the minimum number of 20 workers, which may be circumvented by combining with workers from other agricultural enterprises.

The Committee requests the Government to inform it of the measures that have been adopted on these two points in order to bring them into complete conformity with the Convention and to transmit the text of the new Labour Code as soon as possible.

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

The Committee notes the information supplied by the Government in its report.

The Committee recalls that its previous comments related to:

- the right of trade union leaders to hold meetings on plantations;

- restrictions on the right of trade unions of certain categories of workers to formulate their programmes for furthering and defending the interests of their members, including recourse to strikes.

1. The right of trade union leaders to hold meetings on plantations

In its last report, the Government states that section 60 of the Political Constitution enshrines the right to freedom of association. That section provides that: "both employers and workers may organise freely, for the exclusive purpose of obtaining and preserving economic, social, or occupational benefits." This section of the Constitution is given full effect through the obligation placed on employers to provide appropriate facilities for workers so that they can carry out their tasks rapidly and effectively. Accordingly, workers have every right to hold meetings in plantations, although this right has to be regulated so that the exercise of the right does not disturb the normal work of the farms or harm property.

While noting the information that has been supplied, the Committee requests the Government to indicate rapidly the legislative or administrative measures to which it refers when it indicates that the right to hold meetings in plantations has to be regulated, since this point has been the subject of its observations for several years.

2. Right of workers to formulate their programmes of action, including recourse to strikes

The Committee recalls that section 369 (a), (b), (d) and (e) of the Labour Code prohibits strikes in the public services, that is: those in which the work is performed by persons in the employment of the State or a state institution, if the work in question is not of the same nature as work performed also by private undertakings carried on for profit; work performed by employees engaged in the sowing, cultivation, care or harvesting of agricultural or sylvi-cultural products or in stock-raising, and in the treatment of products in cases where they would deteriorate, and those declared by the State to fall in this category. The Committee considers that the prohibition of strikes should be confined to the following three cases: strikes in essential services in the strict sense of the term, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population; strikes by public servants acting in their capacity as agents of the public authority; and strikes during a grave national crisis.

The Committee notes the Government's indications in its report to the effect that the committee set up to draft the integral reform of the new Labour Code has included substantial amendments to the restrictions laid down in the national legislation that is currently in force respecting strikes. Nevertheless, in relation to section 450(b) of the above draft, the Committee considers that transport and fuel enterprises and loading and unloading in airports and docks do not appear prima facie to constitute essential services in the strict sense of the term. The Committee therefore trusts that in the near future the committee set up to draft the integral reform of the new Labour Code will bring this point into full conformity with the Convention.

The Committee requests the Government to keep it informed of developments concerning the points raised in its observation.