Report in which the committee requests to be kept informed of development - Report No 356, March 2010

Case No 2518 (Costa Rica) - Complaint date: 30-AUG-06 - Closed

Allegations: The complainant organizations allege the slowness and ineffectiveness of administrative and judicial procedures in cases involving anti-union practices, the impossibility of exercising the right to strike given that most strikes are declared illegal by the judicial authorities, discrimination in favour of permanent workers’ committees to the detriment of trade unions and numerous acts of antiunion discrimination in enterprises in the banana sector

1. 631. The Committee last examined the substance of this case at its March 2009 meeting, when it presented an interim report for approval by the Governing Body [see 353rd Report, paras 796–828, approved by the Governing Body at its 304th Session].
2. 632. The Government sent its observations in a communication dated 15 June 2009.
3. 633. Costa Rica has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 634. At its March 2009 meeting [see the 353th Report, para. 828], the Committee made the following recommendations:
   • (a) The Committee expects that the various bills currently in progress in relation to the slowness and ineffectiveness of administrative and judicial procedures in cases of anti-union practices, on which the Government provides information, will be adopted in the very near future and that they will be in full conformity with the principles of freedom of association.
   • (b) As to the alleged discrimination in favour of the permanent workers’ committees to the detriment of the trade unions, while noting that the Government has submitted this issue to a tripartite body and that it intends to adopt measures regarding the report made by an independent investigator in this respect, the Committee expects that appropriate solutions will be found to the problem of collective agreements with non-unionized workers referred to when the case was last examined.
   • (c) In the absence of information from the Government regarding certain allegations, the Committee expects that, together with any information the enterprises might wish to transmit, the Government will send its observations in due course regarding the following recommendations made in November 2007, which are reproduced below:
     • – in regard to the Chiquita Cobal enterprise, the Committee requests the Government to inform it: (1) whether trade union officials Mr Teodoro Martínez Martínez, Mr Amado Díaz Guevara, member of the Committee on the Implementation of the Regional Agreement between the IUF/COLSIBA and Chiquita, Mr Juan Francisco Reyes and Mr Ricardo Peck Montiel have initiated judicial proceedings concerning their dismissals and, if so, of the status of these proceedings; (2) of the grounds for the dismissal of Mr Reinaldo López González and the reasons why the court ruling ordering his reinstatement was not executed, and to send it a copy of the agreement that is to be signed by the enterprise and the worker; and (3) of the grounds for the dismissal of Mr Manuel Murillo de la Rosa and the status of the court proceedings concerning his dismissal;
     • – in regard to the Chiquita-Chiriquí Land Company, the Committee requests the Government to inform it whether, in the process of the negotiations which the company says it has conducted with the trade union, it was decided to reinstate the dismissed trade unionists and members and, if not, to inform it of the grounds for the dismissals and whether judicial proceedings have been initiated in this regard.
   • (d) The Committee urges the Government, as previously requested, to take all steps at its disposal so as to promote collective bargaining between the employers and their organizations on the one hand, and the organizations of workers on the other, in order to regulate the conditions of work in the enterprise Desarrollo Agroindustrial de Frutales SA and to keep it informed in this respect.
   • (e) The Committee understands that the Government is prepared to accept a mission sent by the Subregional Office so that an independent inquiry can be carried out into the allegations concerning the keeping of blacklists in the banana sector, and hopes that the necessary measures will be taken to provide this assistance as soon as possible.

B. The Government’s reply

1. 635. In its communication of 15 June 2009, the Government sent its observations in relation to the recommendations made by the Committee at its March 2009 meeting.
2. 636. With regard to recommendation (a), the Government notes the recommendations made by the Committee concerning the present case, particularly with regard to the urgency of approving the various bills currently in progress in relation to the slowness and ineffectiveness of administrative and judicial procedures in cases of anti-union practices. In this regard, it should be recalled that the Government of Costa Rica has made efforts to promote the approval of the above bills and it reiterates its will to resolve the problems raised. The Government considers that the solution to the problems affecting the country has to be found through the joint efforts of the representatives of the three authorities of the Republic, the executive, legislative and judicial authorities, with a view to the adoption as laws of the Republic of the set of bills that are currently going through the legislative process and which are intended to strengthen the effect given in practice to Convention No. 98, under the terms indicated by the ILO. The Government is aware that the efforts to resolve the problems identified in the country need to be undertaken on a joint basis and indicates that work is being carried out on this process.
3. 637. To illustrate the interest of the Ministry of Labour and with a view to strengthening the measures to guarantee effective compliance with the principle of collective bargaining in the public sector, the Minister of Labour, via official letter No. DMT-088-2009 of 27 January 2009, requested the Minister of the Office of the President to push forward the whole group of bills to contribute to strengthening the right of collective bargaining, including the bills approving Conventions Nos 151 and 154 of the ILO and the draft reform of labour procedures. Despite the fact that approval is still pending for the these bills, in which the highest authorities of the country are showing interest, when analysing the delay in the approval of the bills, on which the Committee of Experts was consulted, the events in the country in recent years have to be taken into consideration. In the first place, on 7 October 2007, in a binding referendum, the Free Trade Agreement concluded by Central America, the Dominican Republic and the United States was approved. With the implementation of this Agreement, the Members of Parliament embarked on the examination, discussion and approval of a series of bills which had to be tabled alongside the Treaty and which formed an additional legislative agenda. These bills took up the attention of the Members of Parliament until the end of 2008 in both their ordinary and extraordinary sessions. In brief, the long discussions on the Free Trade Agreement and the approval of the additional laws delayed examination of the reforms to labour procedures and compliance with the Agreement of the Higher Labour Council of October 2006.
4. 638. In addition, at the present time, the Government is focusing its efforts on dealing with the situation arising out of the global financial crisis as it affects the families of Costa Rica, men and women workers, enterprises and, in general terms, the financial sector of the country, as other governments throughout the world are doing. In this respect, Costa Rica is no exception and this situation is even having an impact on the order in which draft legislation is examined by the Legislative Assembly, which is currently engaged in the examination of the bills tabled under the “Escudo Plan” presented by the President of the Republic. The Escudo Plan does not constitute a reform of the Labour Code, but consists of a series of temporary measures, the principal objective of which is social protection and economic stimulus in the face of the international crisis. The Plan is based on four pillars, which are the beneficiaries of the Government’s measures: families, workers, enterprises and the financial sector. One of the components of the Plan is Bill No. 17315 on the protection of labour in times of crisis, which provides for the possibility of the conclusion of an agreement between employers and workers under which, in the light of the crisis, enterprises undertake to reduce the number of hours worked by their employees, without reducing the value of the hour not performed by the worker, on condition that there are no dismissals. Managers and high-level executives are also urged to reduce their salaries.
5. 639. Furthermore, through this Bill it is hoped to promote new working arrangements in law, which will have a direct effect on the creation of employment, as it has had in other countries. The Bill is currently going through the legislative process of being discussed and examined. Alongside the Bill, it is intended to promote telework in private enterprises, which will offer major benefits for the public sector, as it involves a reduction in costs. Enterprises will accordingly have to consider reducing costs through this system before cutting back their staff. In addition to these measures, it is planned to implement a programme of grants to train 5,000 workers in enterprises affected by the crisis with a view to encouraging enterprises not to reduce their payroll, but to keep their employees on and at the same time train them in fields such as English, computer skills and the management of micro-, small and medium-sized enterprises.
6. 640. Moreover, on 11 March 2009, the launch was officially announced of the Young Entrepreneurs Programme. This is a proposal intended for young persons between 18 and 35 years of age who want to become entrepreneurs. The Programme is designed to develop an enterprise culture among the young, providing them with the essential skills to become good entrepreneurs and persons who contribute to national development. Another important measure is the extension of the period of health insurance coverage for persons who have stopped working, so that for six months after leaving their jobs, they and their families continue to be covered by the scheme to which they were paying contributions while they find another job. The Escudo Plan has been submitted to the International Labour Office for analysis and its comments are currently awaited.
7. 641. The Government indicates that, on 5 May 2009, the President of the Republic received in the Presidential Residence a group of representatives of the social sectors with a view to listening to and considering their Ten-Point Proposal to address the crisis in the country. This response is based on two principal approaches: the first is from the viewpoint of the supply of decent work, and the second from the viewpoint of the demand for decent work. The first element proposes the promotion of productive activities by refocusing on the socio–productive function of the financial system, guaranteed security and food sovereignty, as well as agricultural employment. A system of conditional transfers is also established to promote decent work by minimizing dismissals for economic reasons and promoting social, labour and environmental investment. As these initiatives are intended to mitigate the negative impact of the global economic crisis in the various sectors of the national economy, they require the attention of the Members of Parliament for their examination and rapid implementation, which makes it necessary to leave aside temporarily the examination and approval of other draft legislation, including the bills relating to the effectiveness and rapidity of protection procedures against anti-union discrimination and for collective bargaining in the public sector.
8. 642. The Government of Costa Rica therefore retains the hope that, once the response to the economic crisis has been dealt with, the Legislative Assembly will take up again all the bills relating to anti-union discrimination and collective bargaining in the public sector and that they will be approved in the near future. With regard to the progress of the various bills in the Legislative Assembly, it should be noted that Bill No. 13475 to reform various sections of the Labour Code, of Act No. 2 of 27 August 1943, and sections 10, 15, 16, 17 and 18 of Decree No. 832 of 4 November 1949, and their amended texts, is near the top of the agenda of the Legislative Plenary. Bill No. 15990 to reform labour procedures is currently being examined by a subcommittee set up by the Standing Committee on Legal Affairs of the Legislative Assembly and it is hoped that it will be tabled during the ordinary sessions to be held from May to October 2009.
9. 643. The Bill to reform labour procedures is an integrated proposal incorporating the recommendations of the ILO Committee on Freedom of Association in relation to the matters under examination. It is the outcome of a broad consultation process set in motion by the Supreme Court of Justice. It has benefited from the financial support of the Government of Canada and from ILO technical assistance. Emphasis should be placed on the participation of titular and substitute magistrates of the Second Chamber, labour judges, law professionals specializing in labour law, officials of the Ministry of Labour and Social Security, representatives of employers’ chambers and of trade unions, among others. The Bill addresses the subject of the slowness of procedures in the case of anti-union action and strengthens the right to collective bargaining in the public sector. Essentially, it seeks to simplify judicial procedures and make them more rapid, including those relating to anti-union acts, by replacing written proceedings by oral hearings, as well as strengthening the application in practice of the right to collective bargaining in the public sector and reinforcing protection against anti-union acts.
10. 644. It is important to indicate that official letter No. DMT-552-2009, of 25 May 2009, submitted to the subcommittee of the Standing Committee on Legal Affairs of the Legislative Assembly the study on the Bill to reform labour procedures, which was prepared with the technical assistance requested by the Ministry of Labour to ensure that all the terms of the Bill are in compliance with the provisions of ILO Conventions Nos 87 and 98. This was done so that the comments by ILO experts were taken into consideration in the analysis of the Bill. The bill respecting the negotiation of collective agreements in the public sector, and the addition of subsection 5 to section 112 of the General Act on the Public Administration, is being examined by the Standing Committee on Legal Affairs of the Legislative Assembly. It was placed in 91st position at the last sitting of the ordinary session held on 26 November 2008 and a legal report has now been prepared by the Technical Services Department of the Legislative Assembly, through official letter No. ST019-2008. It is expected that it will be tabled during the ordinary session at the initiative of the Members of Parliament.
11. 645. In view of the significance of the joint efforts made by the executive and judicial authorities and the principal social partners, guided by ILO technical advice, the Government hopes that the bills, once they have been analysed and studied by the Legislative Plenary session, will be adopted as laws of the Republic in the near future. On various occasions, the Committee on Freedom of Association has been informed of the comments received from the Second Chamber and the Constitutional Chamber of the Supreme Court of Justice. In the present case, the comments are being forwarded that were received from the current President on 15 April 2009. The President of the Second Chamber transmitted his observations to the Office of the President of the Supreme Court of Justice on 31 March 2009. In his communication he indicated, with regard to the principle of collective bargaining, that the Supreme Court of Justice has endeavoured to achieve its effective implementation through legal provisions which make it possible and practicable in reality. In this respect, reference is made to the Bill to reform labour procedures, with the indication that the Bill has not received the agreement of the social organizations in relation to certain provisions, including those relating to the percentage of workers required to call a strike and engage in protest action. He adds that he held a meeting with the Standing Committee on Legal Affairs (where the Bill is currently being examined), with a view to determining the bills of interest to the judicial authorities, and on that occasion the Bill to reform labour procedures was included as a priority.
12. 646. With regard to the subject of the slowness of administrative and judicial procedures in cases of anti-union persecution, it should be noted that the Supreme Court of Justice, in addition to promoting the Bill to reform labour procedures, has made other significant efforts to resolve this problem, which are documented in the reports on its activities. These efforts include the allocation of increased human resources to the labour courts, as well as strengthening the operation of the courts through the extension of electronic links with external institutions, such as the CCSS, the INS and the Public Registry, with a view to facilitating judicial processes in labour procedures, and the purchase of digital recording equipment for use in oral hearings. Emphasis should be placed on the establishment of smaller labour tribunals in various areas of the country with a view to accelerating procedures, particularly as the rules governing these services are characterized by the principle of oral proceedings. It is hoped that these decisions will contribute to improving the service in this jurisdiction and that users can have their cases settled in a more appropriate time period. The Government adds that a workshop was successfully held on 2 June 2009 in the Legislative Assembly on “The Impact of the Reform of Labour Procedures”. The most important conclusions of this activity concern the importance of focusing discussion on the Bill to reform labour procedures on the points of divergence in the social sectors so as to make progress in its examination, thereby guaranteeing access to justice as a human right.
13. 647. The Government hopes to be able to make tangible progress in its efforts to give effect to ILO Convention No. 98, particularly through the establishment of a joint commission (unions, employers, the executive, legislative and judicial authorities), with the technical assistance of the ILO, with a view to promoting and developing consensus concerning the text of the Bill to reform labour procedures, which is currently before the legislative bodies.
14. 648. With regard to recommendation (b) concerning the examination of the ILO report on direct settlements, prepared by an independent investigator, it is necessary to note that it was submitted by the Minister of Labour to the Higher Labour Council, a tripartite body reporting to the Ministry of Labour and Social Security, and was discussed at its meetings on 30 April and 26 June 2008. Nevertheless, it has not been possible for the Council, at least at present, to continue the discussion of the report on direct settlements as it has had to attend to other priority subjects, including the reform of labour procedures and the Decent Work Country Programme. Examination of the report on direct settlements is the next priority on the Council’s agenda and it is hoped that the meetings will soon be held at which it will be examined fully in a tripartite context.
15. 649. With reference to recommendation (c), the Government notes the Committee’s recommendations concerning the absence of information regarding certain allegations in the context of Case No. 2518. Nevertheless, the Government reiterates that it forwarded the follow-up reports requested by the Committee in due time and form, with the information provided by the enterprises concerned. Notwithstanding this, the observations and recommendations of the 353rd Report of the Committee on Freedom of Association were communicated once again to the enterprises Chiquita Cobal SA and Chiriquí Land Company SA so that they could exercise their right of legitimate defence in relation to the supervisory body and provide the relevant information. In this respect, the Government indicates that in most of the cases referred to by the Committee the workers have initiated the corresponding official procedures, as indicated by the Atlántica Banana Company Ltd.
16. 650. In this regard, the Government wishes to forward the report containing the company’s reply, which was received with the communication dated 21 May 2009, and which refers to the cases of Mr Teodoro Picado, Mr Amado Díaz, Mr Ricardo Peck, Mr Reinaldo López, Mr Manuel Murillo and Mr Juan Reyes, workers at Chiquita Cobal. The report also contains information on the final negotiations through which Mr Ramiro Beker, Mr Demetrio López and Mr Norlando Ortiz, workers in the ranches of the Chiriquí Land Company, were reinstated. The text of the company’s comments on each specific case is quoted below:
    • – The case of worker Teodoro Martínez Martínez: judicial file No. 06-001828-0166-LA, before the Labour Court, Second Circuit of San José, based in Goicoechea. Cause of dismissal: addressed his immediate chief in an unruly and disrespectful manner. Date of the occurrence: 8 April 2006, during working hours. Current status: by decision of the judicial office, at 7.05 p.m. on 29 August 2008: “… The parties are hereby informed that they are to await the determination by this Office of the schedule for the next year to indicate the respective hearing …” (this refers to the hearing for conciliation and the submission of evidence). Attachment No. 1.
    • – The case of worker Amado Díaz Guevara: judicial file No. 06-001864-0166-LA, before the Labour Court, Second Circuit of San José, based in Goicoechea. Cause of dismissal: failure to comply with contractual obligations in relation to pruning, for which he was under contract, causing prejudice to the plantation; failing to inform his immediate superior of the true situation, claiming that the assigned work had been fully completed, which was not true. Date of the occurrence: 13 May 2006, Oropel ranch, in the jurisdiction of Sarapiquí. Current status: an appeal has been lodged against the ruling of the court of first instance, No. 3280, at 10.05 a.m. on 28 August 2008, which upheld the charges before the Labour Court. On 19 September 2008 the appeal was found receivable.
    • – The case of worker Ricardo Saturnino Peck Motiel: judicial file No. 07-000087-0166-LA, before the Labour Court, Second Circuit of San José, based in Goicoechea. Cause of dismissal: Mr Peck Montiel, in his work of protecting the fruit, for which he was hired by the Cocobolo ranch, in the jurisdiction of Sarapiquí, repeatedly failed to carry out his work, failing to follow the established procedures that were known to him in his work of protecting the fruit, as the achievement of the condition required to export the fruit depends on the efficient performance of this work, which is therefore essential for the cultivation of bananas. On previous occasions, prior to his dismissal, Mr Peck Montiel had received warnings for the same reason of failing to perform his work. His employment contract was terminated on 7 September 2006. Current status: the latest decision of the judicial office consists of the acknowledgement of receipt at 7.35 p.m. on 6 January 2009 of the action by the party.
    • – The case of worker Reinaldo López González: judicial file No. 00-000031-0166-LA, before the Labour Court, Second Circuit of San José, based in Goicoechea. Current status: this file dates from the year 2000, and we have no copy of it. The case has been settled by agreement between the parties, as noted in a document submitted to the judicial office on 13 February 2007, following payment to the complainant Mr López González by the Atlántica Banana Company Ltd. of the sum of 7 million colones. The court ordered the file to be placed in the archives and lifted the restraints that had been ordered “… As the parties have reached an out of court settlement …”.
    • – The case of worker Manuel Murillo de la Rosa: judicial file No. 98-003283-0166-LA, before the Labour Court, Second Circuit of San José, based in Goicoechea, against the Chiriquí Land Company. Current status: by ruling No. 4779, at 1.07 p.m. on 18 December 2008, the claims brought by Mr Manuel Murillo de la Rosa were “set aside with all their demands”. The ruling is currently under appeal before the Labour Tribunal, 3.56 p.m., 4 February 2009.
    • – The case of worker Juan Francisco Reyes: after reviewing our files of the claims brought against the Atlántica Company Ltd. in the courts, we have not found any brought by Mr Juan Francisco Reyes (of unknown second family name); however, we will send notification immediately if the file is found.
17. 651. The Atlántica Banana Company Ltd. has accordingly provided information on the current status of the cases referred to by the Committee, some of which have already been resolved through out of court settlements, while others are awaiting their judicial outcome, as indicated in the documentation provided by the company. The Government of Costa Rica is clear in its intention to punish the existence of anti-union practices and has no hesitation in applying the full rigour of the law in those cases in which there is evidence that such unlawful acts have been committed. In this respect, the Government of Costa Rica is fully prepared to resolve the judicial proceedings concerning alleged unfair labour practices, such as those referred to in the present case, through the adoption of reasonable policies to guarantee the rights of unionized workers, in accordance with the constitutional guarantees of due process and legitimate defence. The Government is working on this together with the three authorities of the Republic, namely the legislative, judicial and executive authorities.
18. 652. With regard to recommendation (d), the Government notes the Committee’s recommendations concerning the promotion of collective bargaining between employers and their organizations, on the one hand, and organizations of workers, on the other, with a view to regulating conditions of work in the enterprise Desarrollo Agroindustrial de Frutales SA In this respect, it should be noted that a collective agreement is concluded between one or more workers’ organizations and one or more employers, or one or more employers’ organizations, with the objective of regulating the conditions under which work is to be performed and other related matters. It has the force of law between the parties which conclude such an agreement, and must be understood to include all the provisions relating to trade union guarantees set out in the ILO Conventions that have been ratified by the country, in accordance with section 54 of the Labour Code.
19. 653. The Basic Act respecting the Ministry of Labour and Social Security, No. 1860, establishes in section 39 the functions of the competent institution, namely the Directorate of Labour Affairs of the Ministry. These include: “… Intervening amicably in labour disputes with a view to endeavouring to resolve them, keeping under constant review labour disputes which arise, analysing their causes and proposing appropriate means for their avoidance in future, or of rendering their consequences less serious; and reviewing collective labour agreements, making appropriate comments so that they are in accordance with the law.” This responsibility is shared between the Departments of Social Organizations and of Industrial Relations, which provide advice to both workers and employers. Advisory services are also provided under budget line 800-TRABAJO and by the Department for External Advisory Services of the Directorate of Legal Affairs. Section 39(f) of Act No. 1860, referred to above, also sets out as a function of the Directorate of Labour Affairs: “… Convening employers and workers with a view to concluding a collective labour agreement which is to be raised to the category of a legislative contract, or for the purpose of revising contracts of this nature.” In this respect, it should be noted that the intervention of officials of the Ministry of Labour is always at the initiative of the parties. This means that the Ministry cannot initiate collective bargaining in a private enterprise or public institution without previously being so requested by the workers or a workers’ organization, by virtue of the freedom of trade unions and employers to decide whether to conclude a collective agreement in the institution or enterprise concerned.
20. 654. Once the intervention of the Ministry has been requested, the officials of the Directorate of Labour Affairs are able to promote and initiate collective bargaining, providing legal advisory services to the parties concerned, taking up an impartial position and acting as an amicable intermediary. In addition, the Department of Industrial Relations of the Directorate of Labour Affairs keeps a register of the collective agreements concluded, with a view to complying with the approval procedure set out in the Labour Code. The enterprises or institutions concerned are under the obligation to submit a copy of the collective agreement once it has been concluded, under firm penalty of it being null and void if this step is omitted, as collective agreements acquire legal status as from the date on which a copy is submitted to the above Department. In this way, the Ministry of Labour controls the lawfulness of the provisions of such agreements.
21. 655. In the present case, the Directorate of Labour Affairs indicates that it has no record of any communication or letter sent by the trade union of the enterprise Desarrollo Agroindustrial de Frutales SA, under the terms of the Labour Code, with a view to notifying or requesting the intervention of the Ministry for the purpose of promoting the negotiation of a collective agreement. Furthermore, it should be noted that the company referred to above was merged in February 2009 with the Corporación de Desarrollo Agrícola del Monte, in a takeover by the latter.
22. 656. With reference to recommendation (e), the Government notes the consent of the supervisory body to consider the sending of a mission by the ILO Subregional Office to carry out an independent inquiry in the banana enterprise sector in relation to the allegations concerning the keeping of blacklists. In this respect, it should be emphasized that it is of great importance for the Government to have an official report to determine the truth in this sector of the national economy so that the necessary and appropriate measures can be taken in accordance with the mission’s findings and recommendations.

C. The Committee’s conclusions

1. 657. The Committee observes that the Government sent its observations on the recommendations that it made when it last examined this case.
   • Recommendation (a)
2. 658. The Committee indicated that it expected that the various bills currently in progress in relation to the slowness and ineffectiveness of the administrative and judicial procedures in cases of anti-union practices, on which the Government provided information, would be adopted in the very near future and that they would be in full conformity with the principles of freedom of association. The Committee notes the Government’s indication that: (1) the solution to the problems raised has to be found through the joint efforts of the representatives of the State authorities with a view to the adoption in law of the set of bills that are currently going through the legislative process and which are intended to strengthen the effect given in practice to Convention No. 98; (2) to illustrate the interest of the Ministry of Labour and with a view to strengthening the measures to guarantee effective compliance with the principle of collective bargaining in the public sector, the Ministry of Labour, via official letter of 27 January 2009, requested the Minister of the Office of the President to push forward the whole set of bills with a view to contributing to strengthening the right to collective bargaining, including the Bills to approve Conventions Nos 151 and 154 and the draft reform of labour procedures; (3) despite the fact that approval is still pending for these bills and the interest shown by the highest authorities of the country, when analysing the delay in the approval of the bills the events in the country in recent years have to be taken into consideration (the approval of the Free Trade Agreement with the Dominican Republic and the United States and the various bills which had to be tabled alongside the above Agreement, as well as the various bills designed to address the situation resulting from the global financial crisis); (4) the hope is retained that once the response to the economic crisis has been dealt with, the Legislative Assembly will take up again all the bills relating to anti-union discrimination and collective bargaining in the public sector and that they will be approved in the near future; (5) the Bill to reform labour procedures is an integrated proposal incorporating the recommendations of the Committee on Freedom of Association in relation to the matters under examination, and it addresses the subject of the slowness of procedures in cases of anti-union acts and strengthens the right to collective bargaining in the public sector (on 25 May 2009, the study prepared on the Bill to reform labour procedures to ensure that all the terms of the Bill are in compliance with the provisions of Conventions Nos 87 and 98 was submitted to the subcommittee within the Standing Committee on Legal Affairs); (6) the Supreme Court of Justice, in addition to promoting the Bill to reform labour procedures, has made other significant efforts, including the allocation of increased human resources to the labour courts and strengthening the operation of the courts with a view to facilitating judicial processes in the labour procedures; and (7) it is hoped to make tangible progress in relation to the application of Convention No. 98 and in particular to establish a joint commission (unions, employers, the executive, legislative and judicial authorities) with the technical assistance of the ILO,- with a view to promoting and developing consensus concerning the text of the Bill to reform labour procedures, which is currently before the legislative bodies.
3. 659. The Committee expects that the bills referred to by the Government, which have been before the Congress for years, and particularly the Bill to reform labour procedures, which in the Government’s view addresses the subject of the slowness of procedures in cases of anti-union acts and strengthens the right to collective bargaining in the public sector, will be adopted in the near future.
   • Recommendation (b)
4. 660. With regard to the alleged discrimination in favour of the permanent workers’ committees to the detriment of trade unions, the Committee noted that the Government had submitted this issue to a tripartite body and that it intended to adopt measures regarding the report made by an independent investigator in this respect, and it indicated that it expected that appropriate solutions would be found to the problem of collective agreements with non-unionized workers. The Committee notes the Government’s reiterated statement that the report in question was submitted to the Higher Labour Council – a tripartite body – in 2008, and the indication that it has not been possible for the Council to continue the discussion of the report as it has had to attend to other priority subjects, including the reform of labour procedures and the Decent Work Country Programme. The Committee further notes the Government’s indication that the report is the next priority on the agenda of the Council and that it is hoped that the meetings will soon be held to examine the report fully in a tripartite context. The Committee regrets the delay that has occurred in the discussion of the above report and expects that it will be examined in the very near future and that the appropriate measures will be adopted without delay in this respect.
   • Recommendation (c)
5. 661. The Committee requested the Government to send its observations regarding the allegations concerning the enterprise Chiquita Cobal, and to inform it:
   • – whether the trade union officials, Mr Teodoro Martínez Martínez, Mr Amado Díaz Guevara (member of the Committee on the Implementation of the Regional Agreement IUF/Colsiba/Chiquita), Mr Juan Francisco Reyes and Mr Ricardo Peck Montiel, have initiated judicial proceedings concerning their dismissals and, if so, of the status of these proceedings. The Committee notes the Government’s indication that: (1) the case of Mr Teodoro Martínez Martínez is before the Labour Court, Second Judicial Circuit of San José; the grounds for his dismissal were that he addressed his immediate chief in an unruly and disrespectful manner on 8 April 2006 during working hours, and that in August 2008 the determination of the date of the hearing for conciliation and the submission of evidence was awaited; (2) the case of Mr Amado Díaz Guevara is before the Labour Court, Second Judicial Circuit of San José; the grounds for dismissal were the failure to comply with contractual obligations in the work of the plantation, causing prejudice to the plantation; he also failed to inform his immediate superior of the true situation by claiming that the assigned work had been carried out; the ruling of the court of first instance upheld the charges and an appeal has been lodged with the Labour Tribunal; and (3) the case of Mr Ricardo Saturnino Peck Montiel is before the Labour Court, Second Judicial Circuit of San José; the grounds for dismissal were the repeated failure to follow the established procedures for the protection of the fruit; the latest decision by the judicial office in relation to the action brought by the party was on 6 January 2009; in this respect, the Committee regrets the long period that has elapsed since the commencement of the current court proceedings without rulings being handed down up to now. The Committee trusts that the current judicial proceedings will be brought to a conclusion rapidly and requests the Government to keep it informed of their outcome;
   • – of the grounds for the dismissal of Mr Reinaldo López González and the reasons why the court ruling ordering his reinstatement was not executed, and to provide a copy of the agreement that the enterprise and the worker were about to sign. The Committee notes the Government’s indication that the file dates from the year 2000 and that it does not have a copy of it. According to the indications of the judicial authorities, the plaintiff received the sum of 7 million colones from the enterprise and the respective court ordered the file to be placed in the archives and lifted the restraints that had been ordered. In the light of this information, the Committee will not pursue its examination of these allegations;
   • – of the grounds for the dismissal of Mr Manuel Murillo de la Rosa and the status of the judicial proceedings concerning his dismissal. The Committee notes the Government’s indication that, in a ruling of 18 December 2008, the claims brought by the worker were set aside with all their demands and that the ruling has been under appeal before the Labour Tribunal since February 2009. The Committee requests the Government to provide a copy of the ruling of the court of first instance. The Committee also expects that the judicial authorities will rule in the near future on the appeal and requests the Government to keep it informed of the final outcome;
   • – with regard to the case of Mr Juan Francisco Reyes, the Committee notes the Government’s indication that it has not found any claim in the files, which was brought against the Atlántica Banana Company Ltd by the worker. Noting this information, the Committee will not further pursue its examination of this allegation.
6. 662. With reference to the Chiquita-Chiriquí Land Company, the Committee requested the Government to inform it whether, in the process of the negotiations that the company conducted with the trade union, it was decided to reinstate the dismissed trade unionists and members and, if not, to inform it of the grounds for the dismissals and whether judicial proceedings had been initiated in this regard. In this respect, the Committee notes with interest the Government’s indication that, as a result of the negotiations held, Mr Ramiro Beker, Mr Demetrio López and Mr Norlando Ortiz were reinstated.
   • Recommendation (d)
7. 663. The Committee urged the Government to take all steps at its disposal to promote collective bargaining between employers and their organizations, on the one hand, and the organizations of workers, on the other, in order to regulate conditions of work in the enterprise Desarrollo Agroindustrial de Frutales SA and to keep it informed in this respect. The Committee notes the Government’s indication that: (1) the Basic Act governing the Ministry of Labour and Social Security establishes the functions of the competent institution, namely the Directorate of Labour Affairs of the Ministry, which include intervening amicably in labour disputes with a view to endeavouring to resolve them and reviewing collective labour agreements, making appropriate comments so that they are in accordance with the law; (2) also, in accordance with the above Act, it is the function of the Directorate of Labour Affairs to convene employers and workers with a view to concluding a collective labour agreement which is to be raised to the category of a legislative contract, or for the purpose of revising contracts of this nature; (3) the intervention of officials of the Ministry of Labour is always at the initiative of the parties, and accordingly the Ministry cannot initiative collective bargaining in a private enterprise or public institution without previously being so requested by the workers or a workers’ organization, and by employers, to determine whether to conclude a collective agreement; (4) once the intervention of the Ministry has been requested, the officials of the Directorate of Labour Affairs are able to promote and initiate collective bargaining, providing legal advisory services and taking up an impartial position; (5) in the present case, the Directorate of Labour Affairs indicates that it has no record of a communication or letter sent by the trade union of the enterprise with a view to notifying or requesting the intervention of the Ministry for the purpose of promoting collective bargaining; and (6) the enterprise Desarrollo Agroindustrial de Frutales SA was merged in February 2009 with the Corporación de Desarrollo Agrícola del Monte, in a takeover by the latter.
8. 664. In this respect, the Committee recalls that it was alleged that it was impossible to engage in collective bargaining in the enterprise, for which reason the authorities could intervene with a view to bringing the parties closer so that they could reach an agreement on the terms and conditions of employment of the workers. Under these circumstances, the Committee requests the Government, should it be requested to do so by the trade union organizations, to make every possible effort to promote collective bargaining between these organizations and the representatives of the Corporación de Desarrollo Agrícola del Monte (which was merged with and took over the enterprise Desarrollo Agroindustrial de Frutales SA).
   • Recommendation (e)
9. 665. The Committee understood that the Government was prepared to accept a mission sent by the ILO Subregional Office so that an independent inquiry could be carried out in the banana sector into the allegations concerning the keeping of blacklists, and it hoped that the necessary measures would be taken to provide this assistance as soon as possible. In this respect, the Committee notes the Government’s indication that it is of great importance to have an official report to determine the truth in this sector of the national economy so that the necessary and appropriate measures can be taken in accordance with the mission’s findings and recommendations. The Committee expects that the mission will be undertaken in the very near future and requests the Government to keep it informed of any developments in this respect.

The Committee's recommendations

1. 666. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the bills referred to by the Government, and particularly the Bill to reform labour procedures, which in the Government’s view addresses the subject of the slowness of procedures in cases of anti-union acts and strengthens the right to collective bargaining in the public sector, will be adopted in the near future.
   • (b) As regards to the alleged discrimination in favour of the permanent workers’ committees to the detriment of trade unions, and the report made by an independent investigator in this respect, the Committee expects that the report will be examined in the very near future and that the appropriate measures will be adopted without delay in this respect.
   • (c) With respect to the dismissals of the trade union leaders, Mr Teodoro Martínez Martínez, Mr Amado Díaz Guevara (member of the Committee on the Implementation of the Regional Agreement IUF/Colsiba/Chiquita), Mr Ricardo Peck Montiel and Mr Manuel Murillo de la Rosa, the Committee regrets the long period that has elapsed since the commencement of the current court proceedings without rulings being handed down up to now, trusts that the current judicial proceedings will be brought to a conclusion rapidly and requests the Government to keep it informed of their outcome.
   • (d) The Committee requests the Government, should it be asked to do so by to the trade union organizations, to make every possible effort to promote collective bargaining between these organizations and the representatives of the Corporación de Desarrollo Agrícola del Monte (which was merged with and took over the enterprise Desarrollo Agroindustrial de Frutales SA).
   • (e) With regard to the possibility of the ILO Subregional Office undertaking an independent inquiry in the banana sector into the allegations concerning the keeping of blacklists, the Committee notes the acceptance of such a mission by the Government and expects that it will be carried out in the very near future. The Committee requests the Government to keep it informed of any developments in this respect.