Definitive Report - Report No 66, 1963

Case No 239 (Costa Rica) - Complaint date: 24-AUG-60 - Closed

1. 96. This case was examined by the Committee at its 26th Session (November 1960), when the Committee submitted to the Governing Body an interim report contained in paragraphs 307 to 334 of the 49th Report of the Committee which was approved by the Governing Body at its 147th Session (November 1960); and, more recently, at its 27th Session (February 1961), when the Committee submitted another interim report contained in paragraphs 163 to 201 of its 52nd Report, which was approved by the Governing Body at its 148th Session (March 1961).
2. 97. Paragraph 201 of the 52nd Report of the Committee reads as follows:
3. 201. As regards the case as a whole, the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to interference with trade union meetings:
   • (i) to draw the attention of the Government to the importance of having regard, when it is taking the necessary measures to fulfil its responsibility for the maintenance of public order, to the possibility of the exercise of trade union rights being endangered, and to the desirability of taking adequate steps to ensure that its police officers observe the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Costa Rica;
   • (ii) to draw the attention of the Government to the fact that when the authorities send their representatives to assemblies or general meetings of trade unions, held on union premises, or other private union meetings, the presence of such representatives may be considered as an interference, from which the public authorities should refrain in virtue of Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87);
   • (b) to take note of the present interim report as concerns the allegations relating to anti-union acts by employers, eviction from trade union offices, the banning of certain trade union meetings, the detention of trade union leaders and the application for registration made by the Sole Federation of Workers of the Southern Pacific, it being understood that the Committee will report further thereon as soon as it is in possession of the supplementary observations and information which it has requested from the Government.
4. 98. Costa Rica has ratified 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).
5. 99. Having been invited by the Government of Costa Rica to send a mission to investigate the accusations made by the complaining organisations, the Director-General of the I.L.O appointed as his representative Mr. H. S. Kirkaldy, Professor of Industrial Relations at the University of Cambridge, and Reporter of the Committee of Experts on the Application of Conventions and Recommendations of the I.L.O, " to investigate the facts which are the subject of the various complaints of alleged infringements of trade union rights in Costa Rica submitted to the I.L.O by different trade union organisations in that country and to make a report thereon to the Director-General ". Mr. Kirkaldy, accompanied by an official of the International Labour Office, carried out this mission from 15 to 28 August 1962 and submitted a report thereon to the Director-General. The Committee has examined the report of the Director-General's representative and has found most useful the factual information collected on the spot when examining the allegations.
6. 100. The case covers eight series of allegations concerning respectively anti-union acts by employers, the banning of certain trade union meetings, eviction from trade union offices, the detention of trade union leaders, the application for registration by the Sole Federation of Workers of the Southern Pacific (FUTRA), the right of way, a draft decree and intervention in trade union meetings. As regards the last two allegations, the Committee submitted its final conclusions to the Governing Body in paragraph 334 (b) of its 49th Report and in paragraph 201 (a) of its 52nd Report, respectively.

A. A. The complainants' allegations

• Allegations relating to Anti-Union Acts by Employers
  101. 101 The FUTRA, in its communication dated 12 September 1960, and the Chiriqui Land Company Workers' Union, in its communication dated 22 August 1960, declare that on several occasions they have requested the Minister of Labour to intervene, as a conciliator or by initiating court action, to put an end to the persecution of the trade unions and of their leaders by the banana companies through newspapers subsidised by the companies (cuttings are annexed to the complaint). Among particular instances cited by the FUTRA are alleged pressure on workers at Corredores by their employers to cause them to leave their union, and alleged moves by the Costa Rican Banana Company and the Chiriqui Land Company to set up an employer-dominated " Committee of Employees " in rivalry with the union, supported by a press campaign, leaflets dropped by aircraft, etc. (as described in the copy of the FUTRA's letter of 4 April 1960 addressed to the Minister of Labour, annexed to the complaint). In these machinations, declare the complainants, the employers often use senior employees as their agents, so that they can disclaim responsibility. The Chiriqui Land Company Workers' Union also complains in its communication dated 22 August 1960 of alleged attempts by the employers to use the Committee of Employees to smash their union. Both complainants declare that, although their Government has ratified 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), all their requests to the competent Minister to intervene, by conciliation or by initiating court action, have been ignored (they furnish copies of various letters stated to have been addressed to the Minister in this connection).
  102. 102 In its communication dated 5 February 1961 the Chiriqui Land Company Workers' Union declares that the United Fruit Company has taken many employment regulation measures in order to reduce production costs and that, when the unions have resisted, the Company has spent thousands of dollars on propaganda stigmatising the unions as Communist. It is alleged that the Government has allowed persecution of the unions to continue and that the Ministry of Labour is making a pretence of conducting studies and investigations and is placing obstacles in the way of unions which do not obey the dictates of the United States Embassy. This is the purpose, declare the complainants, of a notice recently issued warning the unions of the possible consequences of " illegal activities " on their part. The complainant furnishes a copy of the notice, according to which the Ministry warns that it will ask the courts to dissolve any union which departs from its basic purpose of securing economic, social and occupational advantages and which engages in or supports any political activity.
  103. 103 The Government replies to the charges made by the FUTRA in its communications dated 1 and 2 November 1960 in the following terms. The Ministry of Labour, declares the Government, is unjustly accused of not having intervened as it should have done, as a conciliator or by initiating court action, when, in fact, on the receipt by the said Ministry of the FUTRA's request to this effect it detached a labour inspector to make exhaustive inquiries into the circumstances of the facts complained of. According to the report submitted by this official - the text of which is annexed by the Government-the accusations made are without foundation. The fact that no legal action has been undertaken as a result of these events-continues the Government-cannot be interpreted as a denial of justice, since on the one hand, in the light of the evidence available, the Government could not share the view of the complainants that such acts had been committed or that they were unlawful, and on the other hand, in virtue of clearly stated legislation in force, any person, whether an ordinary citizen or a legally constituted body, who considers that his rights have been infringed has free access, for the purpose of redress, to the courts, which are moreover, in virtue of the " power to prosecute ex officio ", obliged to carry the procedure through all its processes until a judgment is given.
  104. 104 To refute the allegation that it has brought pressure to bear on workers to cause them to leave their union, the Government likewise draws attention to the report of the labour inspector. This official describes interviews he had with various persons directly concerned in the events in question, to wit: the Head of the Office of Labour and Social Affairs of the banana company, some of the workers who had left the union, and finally with the originator of the complaint, Mr. Solis Barboza. According to the first of these, in no case had the company brought pressure to bear to cause workers to leave the union, and those who had left had done so of their own free will. The workers with whom the labour inspector spoke confirmed this, saying that their withdrawal was entirely voluntary, and questioning revealed that they were not aware of any of their fellow-workers having been the object of pressure of this kind. Finally, Mr. Solis Barboza, when pressed to give the full name of any worker who had been thus coerced, found himself unable to remember a single one.
  105. 105 The Government's reply Company and the Chiriqui Land Company sponsored the so-called " Committee of Employees " to counteract the activities of the union. The Government declares that this committee is a de facto association formed by workers of the two largest banana companies, but not as an agency of them. In support of its declaration it annexes two telegrams which were sent to the Minister of Labour, one by the Manager of the Costa Rican Banana Company and the other by the Committee of Employees. Both state that the committee in question is not a dependent body of the undertakings, does not take orders or instructions from them and receives no financial help from them. The Government also annexes an advertisement published by the Committee of Employees on 13 February 1960 in the newspaper La Nación explaining the nature and objectives of the said committee in answer to those who contended that it was linked with the undertakings. In the opinion of the Government the existence of this committee is perfectly normal under the democratic system of freedom of association as laid down in sections 25 and 28 of the Political Constitution of Costa Rica. Without any evidence-argues the Government-that the Committee acts as an agency of the undertakings, no investigation can be undertaken into its activities on the basis that they are attacks on freedom of association. In the meantime, continues the Government, any expression of opinion on its part which appears to the unions to be insulting or libellous must come under the jurisdiction of the Penal Courts, before which the interested parties may bring the appropriate actions. The same explanations are given in the letter sent by the Minister of Labour to Mr. Solis Barboza on 29 July 1960, a copy of which is annexed.
  106. 106 The Government denies responsibility with regard to the allegation that the undertakings, so as to be able to act with impunity, make use in their anti-union campaign of senior employees, in particular of a member of the Legislative Assembly, who has affirmed that links exist between the unions in the Southern Pacific banana areas and international communism. Freedom of expression-observes the Government-guaranteed by the Constitution, prevents the Ministry of Labour from prohibiting or punishing such statements. It is for the offended persons themselves to apply to the courts so that they may determine where the responsibility lies.
  107. 107 The Committee, at its February 1961 session, considered that the first question was whether it was really the duty of the Government to intervene, as claimed by the complainants, by initiating court action or as a conciliator. The Committee considered that the question of whether a government should exercise statutory powers to institute legal proceedings in cases of alleged interference by an employers' organisation with a workers' organisation was a matter for the government itself to decide, having regard to whether or not proceedings were justified and were likely to be successful in any given case, provided that refusal to act by the government did not amount to a denial of justice or to a failure to ensure the application of a guarantee provided for in an international instrument, such as a Convention, which that government had ratified.
  108. 108 In the present case, as indicated by the Government, before making any move it wished to ascertain the veracity of the facts complained of and the infringements of the law involved. Its further action would be decided on the basis of the results obtained. The facts complained of amounted in essence to two: pressure by the undertakings on their employees to cause them to leave their union, and the sponsoring by the undertakings of a " Committee of Employees " set up, according to the complainants, in rivalry with their union. It was necessary to establish first of all if such events had taken place, and, if so, whether they took on the character of a violation of trade union rights. With regard to the first fact mentioned above, the Ministry of Labour detached one of its inspectors to investigate the circumstances of the complainants' accusations. The report made by this official led the Government to deduce that the accusation was without foundation. With regard to the second fact, the Government accepted the specific statements of the Committee of Employees and of the management of the undertakings, according to which the two bodies had no connection with each other. The Government draws attention to this evidence in stating that since it did not share the opinion of the parties concerned, it did not feel obliged to take the steps requested by them. Now, for the refusal of the Government to take the matter before the courts to have been, in these circumstances, a denial of justice, the complainants would have to have no other means available of obtaining vindication of the rights which they considered to have been infringed. But the Government declares that they could have applied to the courts themselves under the provisions of the Labour Code of 1943 and its amendments. Section 557 provides ample opportunity for recourse to the courts " to institute the appropriate proceedings in case of offences against the labour and social welfare laws ". Section 558 goes even further by stipulating that the reporting of such offences shall be obligatory for "...(b) all private individuals who become aware of the commission of an offence which constitutes a contravention of any of the prohibitory provisions of this Code ". Finally, the competence of labour judges and courts to take cognisance of such disputes implies that they should take action on such complaints as may be submitted to them in conformity with procedure whenever the acts of individuals or organisations appear to be in conflict with the statutory provisions.
  109. 109 At its February 1961 session the Committee stated that it was also necessary to consider whether failure by the Government to start proceedings is consistent with the international obligations which it has assumed. In ratifying the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Government of Costa Rica undertook to guarantee the implementation of the guarantees contained in Article 2 of the said Convention, which provides that " workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration. In particular, acts which are designed to promote the establishment of workers' organisations under the domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations, shall be deemed to constitute acts of interference within the meaning of this Article." In these conditions the Government is under the obligation, in order to give effect to the provisions of this Convention, to take steps to ensure that the occupational organisations are provided by the national legislation with the means to enforce the rights which are guaranteed to them under the said provisions.
  110. 110 Before attempting to reach final conclusions on this question as to whether the refusal by the Government to intervene was justified or not from the point of view of national justice or international responsibilities, the Committee pointed out that there was one essential element in the Government's reply which appeared to call for further clarification. It does not seem clear which sections of the Labour Code could have been invoked by the complainants as a basis for initiating legal action in respect of an alleged violation of the provisions of the said Code. Sections 70 (c) and (i), 271 and 275 (d) contain various guarantees designed to protect the right of individual workers against acts of this nature by employers, in the same way as they are protected under the terms of Article 1 of the abovementioned Convention. But the Code does not appear to contain provisions dealing with the protection of workers' organisations against acts of interference by employers or employers' organisations as laid down in Article 2 of the said Convention.
  111. 111 In these circumstances the Committee decided at its February 1961 session, before making definitive recommendations to the Governing Body, to request the Government to specify which sections of the Labour Code could have been invoked by the complainants in bringing an action before a labour court to obtain vindication of their allegations of interference with the rights, not of individual workers, but of their organisations, particularly as concerns the question of the " Committee of Employees ", or, secondarily, what other legal proceedings could have been undertaken by the complainants to enforce their rights in the event that they succeeded in proving their allegations.
  112. 112 The Committee notes that, as regards the Committee of Employees which is alleged to have been set up with the purpose of opposing the activities of the trade unions, the Director-General's representative states in his report that " The Committee of Employees is not a registered trade union. According to some members of its executive with whom I spoke, it was set up originally during the 1959-60 strike, with the purpose of informing public opinion concerning the political nature of the strike and of opposing any such acts of violence as had been threatened by some trade union leaders. At that time, the members of the Committee amounted to more than 800 workers. They maintained that it was a spontaneous and private effort on the part of certain employees who thought that their employment and livelihood were being endangered by the irresponsible and dangerous activities of the trade unions which were harmful not only to the company but also to its employees. I was further assured that no links ever existed with the company and no financial support is received from the employers.... The funds of the Committee, I was told, came from the regular contributions of its members as well as the voluntary contributions of local merchants and workers.... At present, the Committee of Employees seems to confine its activities to the operation of some credit and saving co-operatives, and no longer engages in anti-trade union activity. The exact relation of the Committee of Employees with the company is hard to define. The company representatives with whom I talked strenuously denied that they had been instrumental in forming, financing or supporting the Committee. On the other hand they expressed no disapproval of its activities, past or present, and it has always included among its prominent members some of the higher officials of the company."
  113. 113 The Committee notes, as regards the alleged pressure exerted by employers on workers, with a view to making them resign their trade union membership, that the representative of the Director-General indicates in his report that: " This seems to be one of the main problems of the unions, which contend that their membership is dwindling away because of the pressure that is brought to bear on their members. According to the figures which were given to me by the trade unions, the Golfito Workers' Union had over 1,900 members in October 1960 and no more than 475 members in June 1962. The Chiriqui Land Company Workers' Union saw its membership reduced from over 400 to 54 in the same period. In March 1960, after complaints by the trade unions, a labour inspector reported on an inquiry he had made in this respect. On this occasion he interviewed a number of workers who had resigned from the union, but could not establish any case in which pressure was definitely and undoubtedly exerted by agents of the Banana Company to induce workers to leave the union. The inspector also asked one of the union leaders to quote some concrete cases, but without result. When I saw the Minister of Labour and Social Welfare I was shown a report submitted by another labour inspector on 5 July 1962, who had been commissioned to inquire into a number of resignations reported on 3 April 1962 on behalf of the Golfito Workers' Union on the ground of alleged pressure by the company. This inspector interviewed the workers concerned, nine of whom declared that they had resigned voluntarily and two under pressure of company representatives. During my discussions with the representatives of the company, I was assured that it was by no means the policy of the company to bring pressure to bear on workers to leave their unions or to exercise any form of discrimination against union members. In all the offices of the company on the different estates they told me that forms were available to enable union members to require the company to exercise the check-off of trade union dues. In the same way forms were available to enable them to terminate the check-off and resign from the unions. In Golfito I had a meeting with the labour inspector who reported on 5 July 1962 in, regard to his investigation. He told me that he interviewed the workers concerned either in his own office or on the plantations. He denied vigorously the allegation of the unions that these interviews took place in the presence of representatives of the employers which was a procedure he said he would never have countenanced. I myself met some of these workers, who corroborated their statements to the inspector as well as the fact that they had been interviewed without witnesses. During my stay in the Golfito Division I met individually mostly in their houses on the estates, over 30 workers whom I asked about their personal experiences in this matter.... All the workers I interviewed at the request of the unions declared that they had been asked by company representatives to leave the union. Some of them alleged that they had been prejudiced when they refused and others that they had not. None of them had resigned their membership. Most of the workers whose names were given to me by the unions were employed on one estate and it seemed to me that the atmosphere on this estate was extremely tense and altogether different from that on other estates where I interviewed workers either at the request of the unions or on my own initiative. In this case trade union officials had visited the estate on the day before my visit. Of the workers interviewed at random, most stated they were not trade union members and did not want to join a trade union. The reasons stated for this attitude were various. A few stated that they did not want to have anything to do with the unions because they were Communist-dominated or engaged only in politics. Others gave as their reason that they feared reprisals on the part of the employer. The remainder said they were not interested in the unions but some of these told me that they had heard of union members being victimised by the company. Of these workers chosen by me at random only a very few turned out to be union members. None of these considered that he had suffered any prejudice because of his union membership. One of them stated that he had been promised by his foreman a wage increase if he resigned his membership; he did so but the wage increase did not materialise; he rejoined the union and had suffered no prejudice. This was the only one of the workers interviewed by me at random who alleged that any pressure had been brought to bear on him personally either to resign from or refrain from joining a union."
  114. 114 The Committee also notes that the Director-General's representative indicates in his report " that no specific provision exists in the Labour Code whereby an employer is prevented from setting up a company-dominated union " and that " in the opinion of the officials of the Ministry of Labour and Social Welfare with whom I discussed the matter, registration would be denied to such a union because it would be contrary to the spirit of the law and at the same time an infringement of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which through its ratification has been incorporated into the national legislation ".
  115. 115 The Committee notes, on the one hand, the absence of specific provisions in the legislation to protect workers' organisations from acts of interference by employers and their organisations and, on the other hand, the fact that section 15 of the Labour Code provides that " any case not provided for by this Code, the regulations thereunder or acts supplementary or related thereto shall be decided in accordance with the general principles of labour law, equity and local custom and usage; in default thereof the provisions laid down in the Conventions and Recommendations adopted by the International Labour Organisation shall be applied in the first place, in so far as they are not contrary to the laws of the country, and thereafter the principles and enactments of ordinary law ", and the fact that the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), by virtue of its ratification by Costa Rica, has been incorporated in the national legislation of this country; the Committee considers therefore that it would be most appropriate for the Government of Costa Rica to examine the possibility of adopting clear and precise provisions ensuring the adequate protection of workers' organisations against any acts of interference by employers and their organisations.
  116. 116 In these circumstances the Committee recommends the Governing Body to suggest to the Government the possibility of adopting clear and precise provisions ensuring the adequate protection of workers' organisations against any acts of interference by employers or their organisations, in conformity with Article 2 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has been ratified by Costa Rica.
• Allegations relating to the Banning of Certain Trade Union Meetings
  117. 117 In one of the documents annexed to the FUTRA's complaint of 12 September 1960 it is stated that the Costa Rican Banana Company, through the Security Service of Palmar Sur, imposed a ban as from 6 September 1960 on trade union meetings in the sectors occupied by the workers, where they had been held, according to the complainants, for over 17 years.
  118. 118 In its communication dated 5 February 1961 the Chiriqui Land Company Workers' Union alleges that the Union general meeting was to have been held on the same day at Laurel in the premises, owned by the company, in which such meetings had been held for the last eight years. Permission for the meeting had been given by the Ministry of the Interior but, despite this, it is alleged, the Chief Political Officer for the Golfito area (the local representative of the President of the Republic) stated that the meeting could not be held " because the Company will not permit it ".
  119. 119 The Government replies, in its communication of 2 November 1960, to the charges made by the FUTRA, by stating that it has not considered it proper to order the companies to permit meetings of workers on land over which, in accordance with the law, they exercise the right of ownership, but that in conformity with its policy of obtaining the maximum number of safeguards for the Costa Rican trade union movement, it expects to be able to secure the inclusion, and the acceptance by the companies, of provisions in the trade union regulations now being prepared which will permit such meetings, provided that they are for exclusively trade union purposes. The Government has not yet presented its observations on the matters raised by the Chiriqui Land Company Workers' Union.
  120. 120 At its February 1961 meeting, the Committee noted that in a previous case, when called upon to examine allegations concerning the opposition of plantation employers to the carrying out of trade union activities on their private property, the Committee, while recognising fully that the plantations were private property, took the view that as the workers not only work but also live on the plantations, so that it is only by entering the plantations that trade union officials can normally carry on any trade union activities among the workers, it is of special importance that the entry of trade union officials to the plantations for the purpose of lawful trade union activities should be readily permitted, provided that there is no interference with the carrying on of the work during working hours and subject to any appropriate precautions for the protection of the estate.
  121. 121 At that meeting, the Committee also recalled that the same considerations led the Committee on Work on Plantations, in a resolution concerning industrial relations on plantations (Bandung, December 1950), to affirm the principle that the employers of plantation workers " should provide such unions with facilities for the conduct of their normal activities, including free office accommodation, freedom to hold meetings and freedom of entry ".
  122. 122 In these conditions the Committee, having regard to the importance which it attaches to the principles cited above, expressed the hope that the Government, in accordance with the intentions expressed in its communication of 2 November 1960, would take such steps as were necessary to endeavour to effect an arrangement between the employers and the complaining organisation with respect to the holding of trade union meetings. Before making its final recommendations to the Governing Body, however, the Committee requested the Government to furnish its observations on the matters raised in the latest communication from the Chiriqui Land Company Workers' Union.
  123. 123 The Committee notes that, as regards the allegations made by the Chiriqui Land Company Workers' Union, the Director-General's representative indicates in his report that " the company representatives stated that the Chief Political Officer had never been asked to break up the meeting because the company will not permit it This was confirmed to me by the person in question, who no longer holds a public office but is an employee of the company. He explained that, on the occasion referred to, the union meeting had become a political meeting where pro-Communist views were being expressed. According to the instructions he had received from his superiors, no Communist meetings should be allowed. On the other hand, he presumed that when the Governor issued the permit to hold the public meeting he did not know that it was going to be held on private premises; the organisers had no permission from the company to have this meeting on its premises. For all these reasons he decided on his own to break up the meeting. The company representatives stated that all these union meetings usually end up with a political discussion. That this sometimes takes place was indeed confirmed to me by the trade union representatives themselves."
  124. 124 As regards private meetings on estates, the Director-General's representative states in his report that " the company representatives declared that they do not and cannot object to them. However, in order to be a private meeting it had, according to their understanding, to be held in a closed room. If the discussions can be heard outside the room, they contended that it is no longer a private meeting. In this respect I heard complaints from the trade unions that individual workers had been victimised because of meetings that had taken place in their homes. I discussed the matter relating to public and private trade union meetings with the Minister of Labour and Social Welfare, who declared that this was one of the questions he intended to take up personally with the company."
  125. 125 The Committee also notes, as regards the distinction made between public and private meetings, that the Director-General's representative states in his report that: " The general principle, I was informed, is that unions need no authorisation to hold a private meeting but that they require a permit issued by the authorities if the meeting is to be public. Various allegations were contained in the complaints submitted by the trade unions about union meetings being broken up by the police, and the Government in its replies has contended that these were public meetings being held without permission. The trade unions, on the other hand, affirmed that they were private meetings being held in the corridor of a house (i.e. the balcony open to the air on one side and providing access on the other side to the rooms of the house), in an open space under a house built on stilts, etc. I heard a number of additional complaints dealing with the same problem. It was usually a case of the authorities interfering with a meeting being held without a permit which they considered to be public and which the union considered to be private. I discussed the question of what is a private and what is a public meeting with several government authorities, trade union leaders and employers' representatives. Although there was no unanimous view on the question, both government officers at all levels and company representatives gave a restrictive interpretation of those terms; the trade union leaders, on the other hand, were more liberal in their interpretation. According to the general opinion of government officers and company representatives, a meeting was private if held between four walls, but there was little consistency on the question of whether doors and windows had to remain shut or could be open; in some cases it was held that windows could be opened for ventilation; in some cases no objection was taken to the opening of doors at least to allow entry of late-comers; the main consideration appeared to be to prevent people who were not in the enclosed space from hearing the discussions. The trade union representatives thought that a meeting is not public unless it is held in a public square or on the street. There is no legal definition of public and private meetings, and no regulations or instructions seem to have been sent to the local authorities for their guidance in the application of the law. The National Constitution merely says in its article 26 that Meetings on private premises do not need previous authorisation. Meetings to be held in public places shall be regulated by law. None of the cases reported by the trade unions of interference with allegedly private meetings has been brought before the higher judicial authorities, and final judicial decisions do not seem to exist with regard to such specific cases as are mentioned above. Arbitrary proceedings are, therefore, possible at the local level; sometimes the organisers are arrested for some hours, and I have been informed of cases where the organisers of a meeting were told to close the doors because no permit for a public meeting had been issued, and persons arriving thereafter were prevented from entering the premises. On the other hand, there appeared to be cases where the authorities have acted in a much less restrictive manner but the trade unions feel that their activities have been unduly and wrongly restrained."
  126. 126 The Committee, while taking note of the statement made by the Minister indicating that he intended to deal personally with this matter with the company, stresses once again the importance which it attaches to the right of plantation workers to hold trade union meetings. Moreover, the Committee considers it of vital importance, with a view to avoiding any misunderstanding, that standards should be prescribed making a clear distinction between what is meant by a private meeting and by a public meeting and that these standards should be made known to all persons who, in one capacity or another, are required to supervise their application.
  127. 127 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the importance which it attaches to the right of plantation workers to hold trade union meetings, and to suggest to the Government that it might be appropriate to adopt clear provisions as to the meaning to be attached to the term " public meeting ", and to the term " private meeting ".
• Allegations relating to Eviction from Trade Union Offices
  128. 128 These allegations were made by the Chiriqui Land Company Workers' Union in a letter dated 20 October 1960, to which they attach a copy of a complaint made to the General Inspector of Authorities concerning the events in question. These events are alleged by the complainants to have been the following. On Thursday, 13 October 1960, the Chief of Police at Puerto González is said to have ordered his subordinates to evict the union from a house which it had occupied for more than six years on the Laurel estate, and which had been provided by the Chiriqui Land Company for union offices and living quarters for the official in charge of them. The police threw out in the street all the books, papers and documents which they found in the office and removed the tables and benches. On the protest being made that these were the property of the union, a police officer replied-according to the complainants-that the company wanted no union there. Moreover, continue the complainants, the Chief Political Officer in the Golfito area has declared to the Press that he will avert any strike in the banana zone even if to do so causes bloodshed, from which it is clear, they conclude, that the right to strike is seriously imperilled.
  129. 129 With its communication dated 8 February 1961 the Government forwarded a copy of a report made on the matter of the alleged eviction by the Chief Political Officer for the Golfito area to the Ministry of the Interior. The Government declares that the full legal procedure was followed, that the rules governing judicial procedure were respected and that the eviction order was put into effect in decent and courteous fashion. In the attached report it is stated that the Chiriqui Land Company authorised its agent to institute proceedings " with the Puerto González Police Office " with a view to evicting Mr. Gregorio Mayorga Correa (a leader of the FUTRA) from a house owned by the company-it is stated that he had ignored earlier requests to vacate one-half of this building, No. 9104, located on the Laurel estate. The company's agent therefore requested that eviction proceedings be taken pursuant to section 2 (1) and (2) of the Code of Civil Procedure to cause Mr. Gregorio Mayorga Correa to vacate one-half of the said building or, in the event of his refusal, to have him evicted by the police. The police served personal notice on 19 September 1960 and then, on 27 September, served written notice on the defendant to evacuate the premises within eight days or be evicted. The defendant submitted his arguments, which were rejected by the Chief of Police. On 13 October the Chief of Police evicted the defendant and put his chattels on to the street; the defendant took them away. The entire procedure, says the Government, was in accordance with existing administrative law provisions and, especially, section 691 (1) and (2) of the Code of Civil Procedure.
  130. 130 With reference to the statements alleged to have been made to the Press by the Chief Political Officer, the Government declares that the allegations are too vague, omitting all references to the dates and names of the newspapers concerned, to permit of any observations being made beyond a statement that such officers do not themselves make decisions on matters of policy.
  131. 131 The Committee at its February 1961 meeting noted that the allegation related to the eviction of a trade union officer from premises occupied by him and apparently used as a trade union office where union documents were kept, these premises being the legal property of the Chiriqui Land Company. Irrespective of the question of legal ownership, under the procedure as described in the Government's reply, both the making and the application of eviction orders appeared to be within the authority of the police without the necessity of obtaining any order from a court of law. This procedure would seem to be unusual. Before reaching final conclusions on this aspect of the case, the Committee decided to request the Government to confirm whether, in fact, people may be evicted from property in such circumstances without the need for application to be made to a court of law.
  132. 132 The Committee notes that the Director-General's representative states as follows in his report: " When discussing this matter with the trade union leaders they objected to the summary proceedings that had taken place, allegedly in violation of the Code of Civil Procedure. They also pointed out that, although the proceedings had been instituted against an individual, in the end the authorities removed from the premises not only his belongings but also those of the union. By means of this procedure the company, they contended, had succeeded in evicting the union from the premises which had been given to it as part of the terms of settlement of a strike. I discussed this matter, as well as the general problem of trade union offices on the estates, with the representatives of the company. It was explained to me that one-half of a building on the Laurel estate had been given to the co-operative of FETRABA and that, once it had been dissolved because of financial irregularities, the company decided to have the full possession of its property restored and, therefore, had to evict a former member of the board of the co-operative. As regards the general problem of trade union offices, I was told that in previous years the company had provided the unions with premises to hold meetings and carry out their activities. However these premises had not always been used for trade union activities, and, therefore, the company preferred that the unions should confine their offices to the civil villages. I went to see the building from which the eviction took place. According to witnesses to whom I talked, the union and its caretaker were evicted from the lower part of the house, whereas the co-operative went on functioning in the upper part for some time. In any event, the eviction took place in October 1960 and the co-operative of FETRABA was only dissolved on 28 August 1961. I was informed during my discussions at the Ministry of Labour and Social Welfare that the question of trade union offices on the estates is another problem which the Minister intends to discuss personally with the company."
  133. 133 The Committee notes, on the one hand, that there is a contradiction between the company's statement that it had proceeded to evict a member of the board of the co-operative of FETRABA when the latter had been dissolved because of financial irregularities, and the dates at which the eviction took place (October 1960) and at which the FETRABA co-operative was dissolved (August 1961); and, on the other hand, that the eviction appears to have been aimed in fact against Mr. Mayorga, leader of the FUTRA, who lived in the lower part of the house which also served as trade union premises, and that the co-operative continued to operate in the upper part of the house.
  134. 134 The Committee takes note of the statement made by the Ministry of Labour and Social Welfare to the Director-General's representative that the question of trade union offices on the estates was another problem which the Minister intended to discuss personally with the company.
  135. 135 When examining allegations concerning the question of the exercise of trade union activities in plantations in Case No. 34 relating to Ceylon, the Committee expressed certain views on this matter in paragraph 168 of its Fourth Report, in the following terms:
  168. 168..the Committee, while recognising fully that the estates are private property, considers that, as the workers not only work but also live on the estates, so that it is only by entering the estates that trade union officials can normally carry on any trade union activities among the workers, it is of special importance that the entry into the estates of trade union officials for the purpose of lawful trade union activities should be readily permitted, provided that there is no interference with the carrying on of the work during working hours and subject to any appropriate precautions for the protection of the estate. The Committee notes with satisfaction the statement of the Ceylon Government that in practice entry is not generally refused if prior notice is given or permission to enter obtained and therefore expresses the hope that this practice will become still more general and will be liberally applied. In this connection, the Committee also draws attention to the resolution adopted by the Plantations Committee of the I.L.O at its First Session providing that employers should remove existing hindrances, if any, in the way of the organisation of free, independent and democratically controlled trade unions by plantation workers and should provide such unions with facilities for the conduct of their normal activities, including free office accommodation, freedom to hold meetings and freedom of entry..."
  136. 136 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government, having regard to the particular situation of plantation workers, to the importance which it attaches to the principle enunciated by the Plantations Committee at its First Session that employers of plantation workers should provide unions with facilities for conduct of their normal activities, including free office accommodation.
• Allegations relating to the Detention of Trade Union Leaders
  137. 137 In its communication dated 22 August 1960 the Chiriqui Land Company Workers' Union alleges that on 24 July 1960, on the occasion of a union meeting on its own premises at Laurel, two union leaders, Mr. Alvaro Montero Vega and Mr. Juan Rafael Solis Barboza, were arrested and imprisoned by order of the Chief Political Officer for the Golfito area. In the annexes to the FUTRA's complaint dated 12 September 1960 it is stated that the arrest of these two persons, Vice-President and General Secretary of the FUTRA, followed closely after a visit by them to the President of the Republic to complain of anti-union persecution, on which occasion the President had promised to take appropriate action, this interview being reported in the Press next day. A further protest addressed to the President of the Republic is alleged to have been ignored. The complainants forward a cutting from the issue of La República dated 26 July 1960 reporting the fact of their arrest.
  138. 138 In its communication of 17 July 1961 the Chiriqui Land Company Workers' Union alleges that on 10 July 1961, during a meeting of the executive board of the Chiriqui Workers' Union, a detachment of police (guardias fiscales) suddenly arrived, forced the meeting to disperse and carried off certain officials of the union (José Meléndez, Josh Oconitrillo, Jesús Arce and Carlos Blanco); these officials were only set free " after strong protests from the local workers ". The complainants allege that these were not isolated cases and that some days earlier Messrs. Oconitrillo, Meléndez and Blanco had also been detained and had spent the night at the police station, before being taken the following day to the Puerto Golfito prison; they were subsequently released because they had committed no offence. The complainants add that other trade union officials have been jailed on similar pretexts.
  139. 139 It is not true, replies the Government in its communication of 1 November 1960, that the leaders Juan Rafael Solis Barboza and Alvaro Montero Vega were arrested on 24 July; what happened was that they attempted to hold a meeting without satisfying the formalities laid down by the law, which resulted in a sanction, but not their arrest. In support of this affirmation it annexes a letter from the Minister of Labour to the Minister of the Interior, together with the latter's reply. The Minister of the Interior states in his reply that Messrs. Alvaro Montero Vega and Juan Rafael Solis Barboza were surprised while holding a meeting without having complied with the prior formalities required by the law, as a consequence of which, in accordance with the provisions of section 26 of the Political Constitution of Costa Rica, section 263 of the Labour Code and section 137 of the Police Code, sanctions were imposed on them by the Political Department of Golfito, but at no time were they detained.
  140. 140 At its February 1961 meeting, the Committee noted that in previous cases in which it had been called upon to give a decision concerning complaints relating to infringements of the free exercise of the right to hold trade union meetings, the Committee had held that the right of trade unions to meet freely on their own premises, without the need for previous authorisation and in the absence of control by the public authorities, constituted an essential element of freedom of association.
  141. 141 In these circumstances the Committee decided, before making its final recommendations, to request the Government to provide further information as to the sanctions imposed and the legal formalities which it stated were not complied with in respect of the union meeting which is said to have been held on union premises on 24 July 1960.
  142. 142 The Committee notes that the Director-General's representative makes the following statement in his report: " On several occasions the unions have complained that their leaders were arrested by the local police or by the Customs Police. It was often very difficult to find the records of such proceedings, but, on the whole, the grounds for such detentions appear to be: the holding of public meetings without permission, engaging in political discussions during a trade union meeting and carrying allegedly subversive propaganda material.... These detentions are usually for a period of less than 24 hours and are of a preventive character. No further proceedings are generally instituted, either by the authorities or by the detainees, and so no authoritative interpretation of the law by judicial decision emerges."
  143. 143 The Committee, whilst reiterating the importance which it attaches to the principle cited in paragraph 140 above, notes that the various workers who were detained were released some hours later; in these circumstances, and subject to the above-mentioned principle, it considers that this aspect of the case does not call for further examination.
  144. 144 In the circumstances the Committee recommends the Governing Body:
       • (a) to draw the attention of the Government to the fact that the right of trade unions to meet freely on their own premises, without need for prior authorisation and without control by the public authorities, constitutes a fundamental element of freedom of association;
       • (b) to note that the various detained workers were released some hours later;
       • (c) to decide that this aspect of the case does not call for further examination.
  145. Allegations relating to the Application for Registration Made by the FUTRA
  145. 145 The complaining organisation declares in a communication dated 1 February 1961 that its establishment was decided upon at a congress of banana workers' unions held on 13 and 14 February 1960. Application for registration was made immediately to the Ministry of Labour. Between that time and November 1960, declare the complainants, the Ministry asked the Federation to make a number of changes in its draft rules, all of which the Federation accepted, but, in spite of this, the Ministry wrote to the Federation on 16 January 1961 stating that its application must stand over until the Ministry had made a survey of the different existing organisations of banana plantation workers. The complainants contend that this amounts to a refusal of registration. They cite the provisions of article 60 of the Constitution of Costa Rica and of sections 262, 274 and 288 of the Labour Code, and allege that these have been violated by the Ministry's failure to register their organisation.
  146. 146 At its February 1961 meeting the Committee decided to defer its examination of this aspect of the case, in the hope of receiving the Government's observations.
  147. 147 The Committee notes that the Director-General's representative stated as follows in his report: " The decision to establish the FUTRA was made in February 1960, upon which application for registration was made to the Ministry of Labour and Social Welfare. After a number of changes had been introduced in the draft rules of the Federation, following the request of the authorities, and the requirements of section 274 of the Labour Code had been complied with, the Legislative Assembly asked the Ministry in November 1960 to carry out a thorough investigation into the financial affairs of certain organisations, including the FUTRA. The Ministry of Labour and Social Welfare decided to postpone registration of the FUTRA and await the results of the investigation before taking any final action in that respect. In May 1962, after having received the report of the investigator, the Minister decided to refuse registration to the Federation on two grounds, first, the financial and administrative disorganisation of the constituent unions and the fact that the FUTRA (an organisation without legal personality) had received contributions from these unions, and secondly, the political activity engaged in by the FUTRA in favour of the marxist-leninist system introduced in Cuba. The financial investigation was carried out by an auditor on instructions of the Ministry. According to his report, the books of the unions were improperly kept, vouchers were missing, the distribution of income was not made in compliance with the rules, the reserves of the unions were being drawn upon and the greater part of the funds were spent on salaries of trade union officials; payments above a certain amount were frequently made without previous approval by the general assembly, thus infringing the law; on occasions the nature of the payments was not specified and money had even been lent without any receipt. It also appeared, according to the report, that the FUTRA had received funds from some of its constituent unions. As regards the political activities of the FUTRA, the Minister held that the Federation had carried out a propaganda campaign in favour of the Cuban revolution, organised meetings to this effect and incited the workers to strike in support of this revolution and in protest against the agreements signed in Punta del Este."
  148. 148 The Committee also notes that the Director-General's representative added in his report that " in his decision to refuse registration of the FUTRA, the Minister referred to section 280 (a) of the Labour Code, under which a trade union is to be dissolved by order of the Labour Code if it interferes in political electoral matters, initiates or encourages religious struggles, engages in activities contrary to the democratic régime established by the Constitution of the country, or in any other manner contravenes the prohibition laid down in section 263..." which prevents a trade union from engaging in any activity not connected with the promotion of its economic and social interests ". If the dissolution of a trade union is justified on these grounds, the decision of the Minister stated, it follows that the Ministry has even better grounds and indeed the obligation to deny registration to organisations that before acquiring legal personality seriously infringe such prohibitions. This decision to refuse registration of the FUTRA, it should be noted, was taken by the predecessor of the present Minister of Labour and Social Welfare. The FUTRA recently asked the present Minister of Labour and Social Welfare to reconsider the decision of his predecessor, arguing that, under the Labour Code, trade unions cannot be dissolved by administrative action, but only by order of a court, that the investigation which had taken place did not imply the dissolution of the constituent unions concerned, that these unions had not been deprived of their legal personality and that, therefore, they had the right to federate, that the Ministry was obliged under section 274 of the Labour Code to register the FUTRA, which had complied with all the requirements put forward by the Ministry, and that the decision denying registration was thus illegal.
  149. 149 The Committee points out that the procedure followed by the FUTRA with a view to obtaining registration is equivalent to making its establishment subject to prior authorisation.
  150. 150 In these circumstances the Committee considers it necessary to draw attention to the principle laid down in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which provides that " workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation "; this is applicable, in accordance with Article 6 of the Convention, to the establishment of federations and the Committee points out that, in virtue of the ratification of this Convention by the Government of Costa Rica, the latter is under an obligation to comply with all its provisions.
  151. 151 The Committee therefore recommends the Governing Body to draw the attention of the Government to the obligation which it undertook, by ratifying the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to apply all its provisions including, in this particular case, the provisions of Article 2 which specifies that " workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation ".
• Allegations relating to the Right of Way
  152. 152 In its communication of 22 May 1962 the Workers' Union of Golfito alleges that the trade union leaders are being forbidden to use the public roads in the plantations in order to prevent them from reaching the homes of the workers, and it adds that this is in violation of the status quo established between the banana company and the trade unions as a result of an agreement concluded following the intervention of the Presidents of the Republic.
  153. 153 The Committee notes that, in his report, the Director-General's representative states that " the trade unions allege that the Company, in violation of the Protection of Agriculture Act, 1943, intends to forbid some of their leaders to use the roads on the plantations, thereby preventing them from getting in touch with the workers. They contend that these are public roads by prescription, having been used for more than ten years, without restriction, by the general public and because they connect the different estates which have been considered as villages (poblaciones) by a former general manager of the Banana Company of Costa Rica himself (communication addressed to the Labour Judge of Golfito by Mr. Walter Mosley Hamer Turnbull on 28 March 1955). As an example of how the company proceeded at present, I was told by Mr. José Meléndez Ibarra, General Secretary of the Golfito Workers' Union, that he was detained on 4 April 1962 while standing on one of these roads in front of a packing plant of the company. The representatives of the company, however, told me that he entered the packing station building without permission. He was later convicted and he maintains that he was warned by the judge that he would no longer be allowed to enter any of the estates of the company. However, the unions also reported to me another case where Mr. Juan Rafael Solis Barboza, President of the FUTRA, was absolved of the charge of having trespassed on private property (section 104 of the Police Code), because this section had been repealed by the Protection of Agriculture Act, 1943. The representatives of the company told me that they did not prevent any person from entering its estates and that people freely used the roads on the plantations. However, they consider that these roads have not become public by prescription. It is the company that does the maintenance work and whenever a transport service wants to use the roads, previous permission has to be obtained from the company. The representatives also considered that the company might have to restrict free passage and transit on the plantations and the roads in some special cases, in order to defend its interests. The legal situation as regards the right of way on the premises of the company does not seem to be clear and no decision has been rendered so far by the Supreme Court. During my conversations in the Ministry of Labour and Social Welfare, I was told that this was another matter which the Minister would discuss personally with the company."
  154. 154 The Committee, while taking note of the intention of the Minister of Labour and Social Welfare to discuss this matter personally with the company, recommends the Governing Body to draw the attention of the Government to the importance which it attaches to the principle enunciated by the Plantations Committee of the I.L.O at its First Session as indicated in paragraph 135 above, that employers of plantation workers should provide for the freedom of entry of the unions of such workers for the conduct of their normal activities.
• Allegations relating to a Draft Decree
  155. 155 Although the Committee has examined in detail the allegations relating to a draft decree and has submitted its final conclusions to the Governing Body in paragraph 334 (b) of its 49th Report, it notes that the Director-General's representative indicates in his report that the Minister of Labour and Welfare stated that the draft decree " had been laid aside by the Government and that if in future the question of its revival should arise, the Government would consult the I.L.O prior to the adoption of a decision ".
  156. 156 The Committee takes note with interest of the statement made by the Minister of Labour and Social Welfare, according to which, if the question of the revival of the said draft decree should arise in future, the Government would consult the I.L.O prior to taking any decision on the matter.
  157. 157 In the circumstances the Committee recommends the Governing Body to express its satisfaction to the Government for the statement by the Minister of Labour and Social Welfare, according to which, if the question of the revival of the said draft decree should arise in future, the Government would consult the I.L.O prior to taking any decision on the matter.
• Allegations relating to Interference with Trade Union Meetings
  158. 158 Although the Committee has already examined in detail the allegations relating to interference with trade union meetings and has submitted to the Governing Body its final conclusions in paragraph 201 (a) of its 52nd Report, it notes that the Director-General's representative states in his report-as regards the recommendation made to the Costa Rican Government that " when the authorities send their representatives to assemblies or general meetings of trade unions, held on union premises, or other private union meetings, the presence of such representatives may be considered as an interference, from which the public authorities should refrain in virtue of Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) "-that " I was assured during my talks in the Ministry of Labour and Social Welfare that, on the basis of this decision, the Ministry would no longer send inspectors to private trade union meetings, unless so requested by the trade unions concerned ".
  159. 159 The Committee takes note with satisfaction of the assurances received by the Director-General's representative in the course of his conversations with the Ministry of Labour and Social Welfare, according to which the Ministry would no longer send inspectors to private trade union meetings, unless so requested by the trade unions concerned.
  160. 160 In the circumstances the Committee recommends the Governing Body to express its satisfaction to the Government for the assurances given by the Ministry of Labour and Social Welfare, according to which the Ministry would no longer send inspectors to private trade union meetings, unless so requested by the trade unions concerned.

The Committee's recommendations

1. 161. In all the circumstances the Committee recommends the Governing Body:
   • (a) to suggest to the Government the possibility of adopting clear and precise provisions to ensure the adequate protection of workers' organisations against any acts of interference by employers or their organisations, in conformity with Article 2 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has been ratified by Costa Rica;
   • (b) to draw the attention of the Government to the importance which it attaches to the right of plantation workers to hold trade union meetings and to suggest that it might be appropriate to adopt clear provisions as to the meaning to be attached to the terms " public meeting " and " private meeting ";
   • (c) to draw the attention of the Government, having regard to the particular situation of plantation workers, to the importance which it attaches to the principle enunciated by the Plantations Committee of the I.L.O at its First Session (Bandung, December 1950) that employers of plantation workers should provide their unions with facilities for the conduct of their normal activities, including free office accommodation and freedom of entry;
   • (d) as regards the allegations relating to the detention of trade union leaders:
   • (i) to draw the attention of the Government to the fact that the right of trade unions to meet freely in their own premises, without need for prior authorisation and without control by the public authorities, constitutes a fundamental element of freedom of association;
   • (ii) to note that the various workers detained were released some hours later;
   • (iii) to decide that this aspect of the case does not require further examination;
   • (e) to draw the attention of the Government to the obligation which it undertook, in ratifying the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to apply all its provisions including, in this particular case, the provisions of Article 2 which specifies that " workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation ";
   • (f) to express its satisfaction to the Government for the statement by the Ministry of Labour and Social Welfare, according to which if the question of the revival of the draft decree referred to in paragraph 155 above should arise in future, the Government would consult the I.L.O prior to taking any decision on the matter;
   • (g) to express its satisfaction to the Government for the assurances given by the Ministry of Labour and Social Welfare, according to which it will no longer send inspectors to private trade union meetings, unless so requested by the trade unions concerned.