Informe provisional - Informe núm. 181, Junio 1978

Caso núm. 821 (Costa Rica) - Fecha de presentación de la queja:: 20-JUN-75 - Cerrado

117. The Committee already examined these cases in November 1977, when it submitted the interim conclusions contained in paragraphs 194 to 220 of its 172nd Report. The Governing Body approved this report at its 204th Session (November 1977).

1. 117. The Committee already examined these cases in November 1977, when it submitted the interim conclusions contained in paragraphs 194 to 220 of its 172nd Report. The Governing Body approved this report at its 204th Session (November 1977).
2. 118. 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).
3. 119. The allegations outstanding refer to the dismissal or arrest of trade union officials and to interference by the Social Security Fund in a trade union assembly. The Government sent further information by a letter of 13 April 1978.

A. Dismissal of trade union officials

1. 120. According to the National Union of Social Security Employees (UNDECA), Mr. Carlos Manuel Acuña Castro, Deputy General Secretary UNDECA, had been dismissed on 17 June 1975 from his post as legal inspector at the Social Security Fund on the grounds that he had been attending courses at the law faculty, whereas in reality, according to the complainants, he had merely sat for the examinations with the authorisation of his employer. The complainants considered that this situation was the consequence of the complaint presented to the Council of State (Contraloría general de la República) on the subject of the interference of the Social Security Fund in the general assembly of the union and the participation of Mr. Acuña Castro in the elections.
2. 121. The General Confederation of Workers (CGT) and the Union of Bank Employees of Costa Rica (UNEBANCO) referred to the situation of Mr. Christián Sobrado Chaves, General Secretary of UNEBANCO. It was alleged that Mr. Sobrado Chaves had been dismissed without due cause on 24 February 1977, after the Higher Labour Court had pronounced the dismissal unjustified. Furthermore, according to the complainants, this measure was a violation of the arbitration award in force at the bank. Mr. Sobrado Chaves had been reproached with unjustified absence from work although, according to the complainants, he had absented himself with the authorisation of his immediate supervisors to carry out activities related to a collective dispute which the bank workers had brought before the labour judge.
3. 122. As regards the dismissal of Mr. Carl Os Manuel Acuña Castro, the Government referred to a circular issued by the office of the Chairman of the Social Security Fund. It affirmed that the versions given of the case were untrue and that the measure in question constituted a sanction for a misdemeanour committed by a worker and should not be artificially connected with other events which had nothing to do with the case. The Government stated that on 13 January 1976 the court of first instance, the San José labour court, judged that the suit filed by Mr. Acuña Castro against the Social Security Fund was receivable. On 1 April 1976 the court of second instance, the Higher Labour Court of San José, upheld this judgement. Finally, the Social Security Fund had filed an appeal before the Supreme Court for the quashing of the sentence. The Supreme Court had not yet given judgement.
4. 123. The Government further indicated that on 19 August 1976 the Bank of Costa Rica had applied to the labour courts which were examining the collective labour dispute raised by the bank workers for, authorisation to dismiss Mr. Christián Sobrado Chaves. The bank had alleged that the accused had committed unpardonable breaches of discipline. The courts considered that the dismissal was unjustified. On 24 February 1977, Mr. Sobrado Chaves was dismissed on the grounds of unjustified absences from work. The bank informed him that, since the arbitration of the collective labour dispute was completed, it was at full liberty to apply the disciplinary sanctions corresponding to the misdemeanour concerned. The Government indicated that the case in question was now under examination by the judicial authorities as the judges had expressed the view that the grounds for dismissal were controversial and might be diversely construed.
5. 124. In November 1977, the Committee noted that these two cases had been brought before the competent courts, where they were still pending. On its recommendations, the Governing Body had requested the Government to supply the text of any judgements rendered.
6. 125. The Government attaches to its communication of 13 April 1978 the judgement rendered by the Division of Cassation of the Supreme Court concerning the dismissal of Mr. Acuña Castro by the Costa Rican Social Security Fund. This decision, dated 18 August 1976, confirms those of the lower jurisdictions. It states that the judges consider that the reasons given by the employer for the dismissal of Mr. Acuña Castro were unjustified and orders the Fund to pay him nine months' wages as compensation, taking account of his seniority in employment. The judges nevertheless consider that Mr. Acuña Castro did not prove that he had been dismissed on account of his trade union activities and was accordingly not entitled to compensation on this account.
7. 126. In addition, states the Government, proceedings have been instituted before the San José labour court against the Bank of Costa Rica in the case of Mr. Sobrado Chaves. The proceedings, which began on 28 April 1977, are not yet completed.
8. 127. The Committee notes the decision of the Supreme Court concerning the first of the persons cited by the complainants. In this connection, the Committee has pointed out on a number of occasions that a worker may frequently find it difficult or even impossible to furnish proof that he has been the victim of an act of anti-union discrimination. In the present case, the competent courts judged that Mr. Acuña Castro, Deputy General Secretary of the National Union of Social Security Employees, had been dismissed without just cause. In these circumstances, the Committee considers it desirable that the Government should re-examine this case and envisage the possibility of reinstating Mr. Acuña Castro.
9. 128. In addition, the Committee feels obliged to point out that, although the aforementioned order of the Supreme Court is dated 18 August 1976, the Government made no mention of it in its earlier communications (dated 2 May 1977). The Committee can only regret that this was not done, and trusts that the Government will communicate a copy of the judgement given in the case of Mr. Sobrado Chaves as soon as this has been rendered. In the latter connection, the Committee notes that Mr. Sobrado Chaves was dismissed over a year ago and that the legal proceedings are not yet completed. It wishes to recall the importance which it attaches to the application of a rapid procedure for the examination of alleged cases of dismissal because of trade union activities

B. Arrest of trade union officials

1. 129. The CGT also alleged that Mr. Luis Fernando Alfaro Zúñiga, General Secretary of the Trade Union Association of Employees of the Costa Rican Electricity Institute, had first been removed from his job and subsequently, owing to a strike which had been called by the general assembly of the union for 20 to 26 July 1976, had been charged by the public prosecutor's office with incitement to strike and other offences. He was imprisoned and was refused bail.
2. 130. In addition, stated the complainants, Mr. Mario Devandas Brenes, General Secretary of the National Federation of Public Service Workers (FENATRAP), had been dismissed from his job at the National Institute of Housing and Town Planning (where he was also general secretary of the union) and subsequently, on the grounds of a strike called by the workers of the institute, had been charged with the same offences as Mr. Alfaro Zúñiga and detained under the same conditions. These two persons were being held at the public prison of Heredia, along with common law offenders.
3. 131. The Government replied that Mr. Luis Fernando Alfaro Zúñiga had made subversive speeches during the strike called on 19 July 1976 at the Costa Rican Electricity Institute. For this reason, the Public Prosecutor of the Republic had charged him before the municipal court of Tibás with riot, incitement to a collective stoppage of services and conduct prejudicial to public order. The trial had not yet been completed.
4. 132. As regards the case of Mr. Mario Devandas Brenes, continued the Government, he had been charged with the same offences as Mr. Alfaro Zúñiga, for which he was also being prosecuted before the municipal court of Tibás.
5. 133. The Committee took note of this information. It nevertheless noted that the facts impugned go back to July 1976 and that the trade unionists concerned have not yet been brought to trial. Moreover, it was not possible to determine with any certainty whether the persons concerned were still detained. The Committee recalled the importance it attached to the principle that in all cases, including those in which trade unionists are charged with offences of a political nature or under common law, which the Government considers to have no bearing on their trade union activities, the persons concerned should be tried rapidly by an impartial and independent judicial authority. On its recommendations, the Governing Body had drawn the Government's attention to this principle and requested it to supply the texts of the judgements rendered in the two cases.
6. 134. In its letter of 13 April 1978 the Government states that proceedings have been instituted against the two abovementioned trade unionists before the Higher Court of San José, which has ordered them to be released on 50,000 colons bail each
7. 135. It would appear from available information that proceedings have been instituted against two trade union officials for strikes in public services. They have nevertheless been released on bail. The Committee has stressed on a number of occasions that recognition of the right of public employees to organise does not imply the right to strike.
8. 136. Nevertheless, since the right to strike is an essential means available to the workers and their organisations for defending and promoting their occupational interests, the Committee has pointed out in a number of cases concerning Costa Rica that, where strikes are prohibited or severely restricted in essential services or in the civil service, adequate guarantees should be ensured to safeguard the interests of the workers to the full. Among such guarantees the Committee has made special mention of adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards are binding in all cases on both parties; these awards, once they have been made, should be fully and promptly implemented. In the present case, section 368 of the Labour code prohibits strikes in the public services, and any disputes which may arise between employers and workers in these sectors must be referred to the labour courts for settlement.
9. 137. Nevertheless, in one of the above-mentioned cases relating to Costa Rica, the complainants alleged that, under the special act setting up the Costa Rican Electricity Institute, this body was not obliged to submit to compulsory arbitration. The Government had supplied no information on this point. The Committee considered that, if the allegation was correct, the workers of the institute would be deprived not only of the right to strike but also of the other safeguards mentioned to protect their occupational interests. The Committee therefore feels it to be necessary, in the present case, for the Government to specify whether section 368 was applicable to the collective labour disputes at the Costa Rican Electricity Institute and the National Institute of Housing and Town Planning.

C. Interference by the Social Security Fund in a trade union meeting

1. 138. The National Union of Social Security Employees alleged that the Costa Rican Social Security Fund had interfered with the holding of the union's general assemblies; in particular, it had engaged in manoeuvres to impose certain persons on the trade union leadership and to remove the new executive Committee which had been legally elected.
2. 139. The Government had supplied no comments in this connection. In November 1977 the Committee recalled that freedom of assembly and election by trade union organisations, without interference by employers and the public authorities, constitutes an essential guarantee of the free exercise of trade union rights. Furthermore, Article 2 of Convention no. 98 stipulates that workers' organisations shall enjoy adequate protection against any acts of interference by employers (either directly, or by their agents or members) in their establishment, functioning or administration. In particular, acts which are designed to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations, are deemed to constitute acts of interference. The Governing Body had requested the Government to communicate its observations on this aspect of the case.
3. 140. The Government has still not supplied comments in this connection.
4. 141. The Committee regrets that the Government has not yet seen fit to reply to these allegations, which refer to incidents that took place three years ago. In an earlier case relating to Costa Rica, the Committee pointed out that in ratifying Convention No. 98 the Government had undertaken to secure the implementation of the guarantees contained in Article 2 of the said Convention, and was accordingly under the obligation to take steps to ensure that the occupational organisations were provided by the national legislation with the means to enforce the rights guaranteed to them under the said provisions.) The Committee subsequently noted that Costa Rican legislation contained no specific provisions to protect workers' organisations from acts of interference by employers and their organisations. According to section 15 of the Labour Code "any case not provided for by this Code, the regulations hereunder 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". The Committee had also pointed out that Convention No. 98, by virtue of its ratification by Costa Rica, had been incorporated in the national legislation, and accordingly considered that it would be most appropriate for the Government 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.
5. 142. The Committee considers that these conclusions are also applicable in the present case. It would appear from an observation made by the Committee of Experts on the Application of Conventions and Recommendations in 19773 that a draft law concerning collective labour relations containing provisions giving protection to workers' organisations against acts of interference has been submitted to the legislative assembly but has not yet been adopted.

The Committee's recommendations

1. 143. In these circumstances, and as regards the case as a whole, the Committee recommends the Governing Body:
   • (a) as regards the dismissal of two trade union officials, to request the Government, for the reasons set forth in paragraph 127, to envisage the possibility of reinstating Mr. Acuña Castro in his employment, and also to request it to transmit the text of the judgement given in the case of Mr. Sobrado Chaves, with the reasons adduced therefor;
   • (b) as regards the arrest of two other trade union officials:
   • (i) to recall the considerations and principles set forth in paragraphs 135 and 136 regarding strikes in public services;
   • (ii) to request the Government, for the reasons set forth in paragraphs 136 and 137, to state whether the procedure for the peaceful settlement of disputes provided for under section 368 of the Labour Code is applicable to disputes in the Costa Rican Electricity Institute and the National Institute of Town Planning;
   • (iii) to note that Messrs. Alfaro Zúñiga and Devandas Brenes have been released on bail, and to request the Government to transmit the texts of the judgements pronounced in their cases, with the reasons adduced therefor;
   • (c) as regards the interference by the Social Security Fund in a trade union assembly, to urge the Government, for the reasons set forth in paragraphs 141 and 142, to adopt without delay the draft provisions regarding the protection of workers' organisations against acts of interference by employers or their organisations;
   • (d) to take note of the present interim report.