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

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

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

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

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

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

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

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