Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 278, Junio 1991

Caso núm. 1483 (Costa Rica) - Fecha de presentación de la queja:: 21-DIC-88 - Cerrado

1. 174. In its last interim report on this case (see 257th Report, paras. 240-322, approved by the Governing Body at its 246th Session (November 1990)), the Committee requested certain information from the Government and, noting that the points of view expressed by the complainant organisation and the Government differed on several important issues, recommended the Governing Body to invite the Government to accept a direct contacts mission to Costa Rica so as to examine the allegations in full knowledge of the facts (see 257th Report of the Committee, paras. 321 and 322(h)). The Government accepted the mission in a communication dated 25 January 1991.
2. 175. The Committee notes that the mission took place from 3 to 10 April 1991 and was headed by Mr. Enrique Marín Quijada, Professor of Labour Law at the Central University of Venezuela and the Andrés Bello Catholic University; he was accompanied by Messrs. Bernard Gernigon, Chief of the Freedom of Association Branch of the ILO, and Alberto Odero, member of that Branch.
3. 176. The Committee notes that the mission was received by His Excellency, the President of the Republic, Rafael Angel Calderón Fournier, the Vice-President of the Republic, Germán Serrano Pinto, the Minister of Labour and Social Security, Carlos Monge Rodríguez, and several officials of the Ministry of Labour, and held meetings with the most representative workers' and employers' organisations, senior representatives of the Legislature and the Judiciary and professors of labour law, representatives of solidarist associations and other persons aware of the questions raised in the ICFTU's complaint. (Annexed to this paper are the mission report and the full list of persons and organisations with whom meetings were held.)
4. 177. The Committee observes with interest that the Government supplied the widest possible facilities to ensure the smooth running of the mission, and notes the strong spirit of cooperation shown by the authorities and the other interlocutors. It wishes to express its thanks to Mr. Enrique Marín for his detailed report on the issues raised in the complaint, of which it has taken due note. The Committee has also taken note of a communication from the Government dated 3 April 1991, delivered by hand to the mission, the contents of which are reproduced below.
5. 178. 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).

A. The Government's recent observations

1. 179. In its communication of 3 April 1991, the Government states that the ICFTU's accusations concerning alleged violations of freedom of association are not true and requests the closing of this complaint. The Government indicates that in Costa Rica it is not only the solidarist associations who administer or participate in the management of the termination funds. There is no factual or legal monopoly in favour of the solidarist movement in this area, or discrimination against the trade union movement. What has happened in reality is that a normative process has begun, through collective labour agreements, which governs trade union participation in the administration of the termination funds of the workers. An example of this is the collective agreements concluded in the Grecia municipality, in the Council for the Administration of Ports and Development of the Atlantic Zone (JAPDEVA in Spanish) and in the Costa Rican Petroleum Refinery (RECOPE), where clauses covering this very point have been included.
2. 180. The Government adds that it is still willing and has decided to prepare legislative amendments to revise the standards covering the activities of solidarism in Costa Rica (the Solidarist Act), guaranteeing that the scope of union action will not be subject to discrimination.
3. 181. With regard to the ballots organised to determine the certification of a union for negotiation purposes when there is a request from a permanent committee of workers to negotiate a direct settlement, the Government repeats the statements it made in November 1990 to the effect that, on this particular issue, only one ballot had been organised by the Ministry of Labour (General Labour Inspectorate) to solve the case of the BANDECO banana company when, on 25 June 1986, the voters favoured the direct settlement instead of the conventional instrument (the collective agreement).
4. 182. In addition, the Government sends statistics on the number of unions and solidarist associations and on the total number of workers belonging to each of them. This shows that, despite the existence of a higher number of registered solidarist associations, in a process of joining together, the number of workers affiliated to unions is in fact the higher. The Government also sends statistics on the number of collective agreements and direct settlements by branch of activities and indicates that, in total, there are also more collective agreements than direct settlements (the Government no doubt refers to the total number of collective agreements and direct settlements throughout the period under examination). According to the Government's statistics, in 1986 there were 335 unions (having 138,583 members) and 862 solidarist associations (having 32,143 members) and in 1990, 420 unions (with 154,469 members) and 1,154 solidarist associations (with 113,879 members); as for collective agreements and direct settlements, in 1980-81, 85 collective agreements and 24 direct settlements were concluded, in 1986-87, 44 collective agreements and 67 direct settlements, and in 1990 to 9 February 1991, 32 collective agreements and 40 direct settlements were signed.
5. 183. Since the report of the direct contacts mission gives a summary of the allegations, of the Government's replies and of the Committee's conclusions in its two previous examinations of the case, the Committee can proceed directly to its conclusions.

B. The Committee's conclusions

1. 184. The Committee observes that this case raises three basic issues: (1) the alleged interference of solidarist associations in union activities including collective bargaining through the signing of "direct settlements"; (2) the alleged existence of dismissals or other prejudicial acts based on trade union reasons or favouring membership of solidarist associations and the inadequate legal protection against this type of act; (3) the alleged unequal treatment between solidarist associations and unions in the legislation.
2. 185. As regards the alleged interference of solidarist associations in trade union activities including collective bargaining through "direct settlements" (concluded between an employer and a group of non-unionised workers, even when a union existed in the enterprise), the Committee observes that according to the report submitted by the representative of the Director-General, labour-related action (by the solidarist organisations) had resulted in the signature of a series of direct setlements. In addition, according to the mission report which cites government sources, the total number of current collective agreements in the private sector alone is 15, whereas there are 87 direct settlements. The Committee also notes that according to the mission report: "The interference by solidarist associations in trade union activities was shown to the mission by representatives of the Government, of the academic world, or by union representatives and employer representatives and at least by a portion of the solidarist representatives interviewed." The mission report goes on: "In particular, the President and the First Vice-President of the Republic agreed that, in practice, solidarism was carrying out trade union functions and that it was necessary to separate by law their roles. Government authorities gave assurances that there was a willingness to adopt shortly appropriate legislative or other types of measures to guarantee the real separation of functions between unions and solidarist associations."
3. 186. As for the alleged dismissals or other prejudicial acts based on trade union reasons or aimed at encouraging membership of solidarist associations, and the inadequate legal protection against this type of act, the Committee notes that the legislation does allow dismissal without the grounds being specified if the corresponding commpensation is paid (including cases involving trade union leaders) and that the fines for violations of the provisions of the Labour Code (at least those relating to freedom of association) are clearly outdated as the amount cited is 300 to 1,000 colones which is equivalent to less than US$9. The Committee also notes that, according to the mission report, there was "evidence from trade unions and from labour authorities that dismissals and other prejudicial acts based on trade union reasons had taken place and were continuing to take place". The mission report "noted wide consensus on the need to introduce detailed and appropriate legislation regarding trade union immunity (fuero sindical) which would grant effective protection. The Government, and in particular the President of the Republic, demonstrated the greatest willingness towards adopting effective legislation along these lines. The employers were not opposed to the principle of protection of trade union leaders (although they had misgivings regarding certain modalities) as long as the obligations concerning their leadership were laid out". The Committee also notes that there is currently draft legislation elaborated by the Ministry of Labour which would considerably strengthen the fines for violations of the Labour Code and which would establish a new system.
4. 187. As regards the treatment under the legislation of solidarist associations and trade union organisations, the Committee notes from the mission report that: "... there was no doubt that the law granted a series of advantages to solidarist associations over unions in certain areas (the minimum number of workers required, the possibility of engaging in profit-making activities, access to compensation in cases of justified dismissal, the possibility of managing termination funds, etc.)". In this respect, the Committee observes that for a solidarist association to be formed 12 workers were needed, whereas a union required 20; and yet most enterprises in Costa Rica employed barely 20 workers or less. The Committee also observes that, according to the mission report, "There was wide agreement (Government, trade union organisations and employer organisations) on the need to abolish the discrimination which presently existed concerning the termination funds between workers who were members of a solidarist association and other workers; this could be done through legislation which extended the advantages contained in the Act on Solidarist Associations and which would declare access to such funds as a right of all workers, no matter how their employment relationship had been terminated".
5. 188. From the information provided by the Director-General's representative in his mission report, the Committee concludes that the interference of solidarist associations in trade union activities including collective bargaining, through direct settlements signed between an employer and a group of non-unionised workers even when a union existed in the undertaking, does not promote collective bargaining as set out in Article 4 of Convention No. 98 which refers to the development of negotiations between employers or their organisations and workers' organisations. The Committee also considers that, since solidarist associations are financed partly by employers, are comprised of workers but also of senior staff and personnel having the employers' confidence and are often started up by employers, they cannot play the role of independent organisations in the collective bargaining process, a process which should be carried out between an employer (or an employers' organisation) and one or more workers' organisations totally independent of each other. This situation therefore gives rise to problems in the application of Article 2 of Convention No. 98 which sets out the principle of full independence of workers' organisations in carrying out their activities. The Committee therefore expresses the hope that the Government will urgently take the necessary legislative measures and other measures to guarantee that solidarist associations do not get involved in trade union activities.
6. 189. The Committee also observes that the current Labour Code allows dismissal without giving reasons if the corresponding compensation is paid (including the case of trade union leaders and of workers involved in trade union activities) and provides anachronistic fines for infringements of the provisions concerning freedom of association (between 300 and 1,000 colones, or less than US$9). It concludes that this situation does not provide adequate protection against acts of anti-union discrimination as set out in Article 1 of Convention No. 98. The Committee observes that the Committee of Experts on the Application of Conventions and Recommendations is of the opinion that the law concerning protection against anti-union discrimination is not in conformity with Article 1 of Convention No. 98. It thus expresses the hope that the Government will urgently adopt the necessary legislative measures or other measures to guarantee the effective protection against any form of anti-union discrimination.
7. 190. Lastly, as regards the treatment in the legislation of solidarist associations and trade union organisations, the Committee concludes that the legislation does grant solidarist associations a series of major advantages over unions in certain areas, in particular as regards the minimum number of workers required, access to compensation in cases of justified dismissal, the possibility of managing the termination funds, etc. In this respect, the Committee takes note of the Government's intention to give statutory recognition of access to termination funds as a right of all workers, no matter how their employment relationship had been terminated. It considers that the legislation should also set out equal requirements for unions and solidarist associations as regards the minimum number of workers required for their creation. The Committee therefore expresses the hope that the Government will urgently take the necessary legislative measures and other measures to abolish any inequalities of treatment.

The Committee's recommendations

1. 191. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a)The Committee takes note of the report of the direct contacts mission which took place in Costa Rica from 3 to 10 April 1991 and observes with interest that the Government supplied the widest possible facilities to ensure the smooth running of the mission and the strong spirit of cooperation shown by the authorities and the other interlocutors.
   • (b)The Committee notes that the legislative and practical situation has given rise to problems in Costa Rica concerning its application of Convention No. 98, and it notes with interest the Government's willingness to introduce legislation to ensure the real separation of functions between unions and solidarist associations and to adopt effective trade union immunity and other measures that would guarantee adequate protection against anti-union discrimination.
   • (c)The Committee expresses the hope that the Government will urgently take the necessary legislative measures and other measures to guarantee that solidarist associations do not get involved in trade union activities, as well as measures to guarantee effective protection against any form of anti-union discrimination and to abolish any inequalities of treatment.
   • (d)The Committee draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations, and recalls that the ILO is at the Government's disposal to provide technical assistance in preparing draft legislation on the questions at issue.
   • (e)The Committee requests the Government to keep it informed of developments in these matters.

ANNEX

1. Report on the direct contacts mission carried out in Costa Rica, from 3 to 10
2. April 1991, by Mr. Enrique Marín Quijada, Professor of Labour Law at the
3. Central University of Venezuela and the Andrés Bello Catholic University
4. I. Introduction
5. 1. On 21 December 1988 the International Confederation of Free Trade Unions
6. (ICFTU) submitted to the Committee on Freedom of Association a complaint
7. against the Government of Costa Rica, alleging the violation of trade union
8. rights (Case No. 1483). Following receipt of the Government's observations,
9. the Committee examined the case at its May and November 1990 meetings, and
10. submitted two interim reports to the Governing Body (see 272nd and 275th
11. Reports of the Committee, paras. 389 to 444, and 240 to 322, respectively,
12. approved by the Governing Body at its 246th and 248th Sessions (May-June and
13. November 1990)).
14. 2. In the most recent interim report on this case, the Committee requested
15. specific information from the Government, and noted that the points of view
16. expressed by the complainant organisation and the Government diverged in
17. several important respects; with a view to securing the fullest possible
18. information for the examination of the allegations, the Committee recommended
19. to the Governing Body that it request the Government to accept a direct
20. contacts mission to Costa Rica (see 275th Report of the Committee, paras. 321
21. and 322(h)). The Government accepted the mission in a communication of 25
22. January 1991.
23. 3. The Director-General of the ILO designated me as his representative for the
24. purposes of this direct contacts mission, which took place in Costa Rica from
25. 3 to 10 April 1991. I was accompanied by Mr. Bernard Gernigon, Chief of the
26. Freedom of Association Branch, and Alberto Odero, an official of that Branch.
27. 4. The mission interviewed His Excellency, Mr. Rafael Angel Calderón Fournier,
28. the President of the Republic, and Mr. Germán Serrano Pinto, the
29. Vice-President of the Republic, Mr. Carlos Monge Rodríguez, Minister of Labour
30. and Social Security, and other high officials of the Ministry of Labour, as
31. well as the most representative organisations of workers and employers. In
32. addition, the mission was received by senior representatives of the
33. Legislature and the Judiciary. Moreover, it met with several professors of
34. labour law, representatives of solidarist organisations and other individuals
35. familiar with the questions raised in the ICFTU complaint. (The complete list
36. of persons and organisations interviewed is appended to this report.)
37. 5. The Government offered the mission every assistance to ensure its success,
38. and I wish to express my gratitude for the spirit of cooperation shown by the
39. authorities and other persons interviewed.
40. II. Summary of the allegations and the Government's reply
41. 6. The allegations presented by the ICFTU refer, first, to the intervention of
42. solidarist associations in areas of industrial relations which are proper to
43. trade unions (collective bargaining, the participation of solidarist
44. representatives in economic and social bodies which are traditionally of a
45. tripartite nature), and to questions of inequality of treatment between
46. solidarist associations and trade unions both in law and in practice (the
47. minimum number of members required, the scope of lawful economic activites,
48. state subsidies) and, secondly, to the lack of legal protection against acts
49. of discrimination such as dismissal (the Labour Code authorises dismissals
50. without requiring employers to state the reasons which motivated them) or a
51. deterioration in the conditions of work owing to membership of a trade union
52. or participation in trade union activities, or to the failure to affiliate
53. with a solidarist association (the sanctions prescribed the the Code are
54. limited to a fine of 300 to 1,000 colones). The ICFTU had emphasised the boom
55. in the number of solidarist associations under employer control, and a
56. corresponding fall in the number of trade unions, a significant drop in the
57. number of collective agreements in recent years and their replacement by
58. "direct settlements" (concluded between a group of non-unionised workers and
59. the employer, even where trade unions existed), the dismissal of 74 trade
60. union leaders and trade unionists and the testimony of workers who had come
61. under pressure to affiliate with solidarist associations and to withdraw from
62. their trade unions.
63. 7. The Government stressed that the solidarist movement was an expression of
64. the constitutional right of association and that the growing popularity of the
65. solidarist movement at the expense of the trade union movement was due in many
66. cases to internal factors of trade union management which were beyond the
67. competence of the Government. The Government denied the allegation that
68. solidarist associations had been set up by law as a means of manipulation by
69. sectors outside the working class and that workers were obliged by law to
70. belong to them. The Government pointed out that section 8 of the Act on
71. Solidarist Associations provided that such associations, their executive and
72. administrative bodies and their legal representatives may not undertake any
73. type of activity aimed at preventing or in any way impeding the establishment
74. and operation of trade union and cooperative organisations, and that failure
75. to comply with this provision was punishable by dissolution of the
76. association.
77. 8. The Government also stated that solidarist associations were not trade
78. union organisations and had neither the nature or purpose of a trade union
79. body since they were set up by workers in the form of a mutual benefit society
80. (based on contributions from workers and from employers for various welfare
81. programmes), and were not designed to defend the class interests of the
82. workers' sector. Although the functions of solidarist associations and of
83. trade unions were different, there might be some similarity between the
84. activities of the former and the activities of trade unions in other
85. countries. The Government denied that solidarist associations interfered with
86. the aims and functions of trade unions, and pointed to the coexistence of
87. trade unions and solidarist associations in 38 institutions and enterprises in
88. both the public and private sectors. To prevent solidarist associations from
89. impinging on the attributes and functions of the trade unions, such as
90. collective bargaining, the Government had decided to submit a Bill to the
91. Legislative Assembly which would prohibit the management and administrative
92. bodies as well as the legal representatives of solidarist associations from
93. participating directly or indirectly in collective negotiations on labour
94. matters. The Government also stated that it had adopted the policy of refusing
95. to approve and register direct settlements reached by any group of workers and
96. their employer when negotiations were already under way with a view to
97. reaching a collective agreement (such bargaining being one of the attributes
98. of a trade union organisation).
99. 9. As regards the extent to which solidarist associations were independent of
100. the employer, the Government stated that although the employer made a monthly
101. contribution to solidarist funds, the Act on Solidarist Associations
102. established that the management boards must be made up solely of workers and
103. that positions on the board may not be held by anyone representing the
104. employer (whether directors, managers, auditors, administrators or other
105. agents); the Act nevertheless states that the employer may appoint a
106. representative who may speak but not vote at general assemblies and meetings
107. of the management board, subject to approval by these bodies.
108. 10. In addition, the Government has recognised that since the function of
109. trade unions organisations "is not capital growth but the defence of its
110. members' occupational and social interests, labour legislation has so far
111. prohibited them from engaging in profit-making commercial activities" and that
112. it is necessary and advisable to determine means of protecting the assets of
113. trade union organisations by affording them the possibility of making
114. profit-making investments, provided the profits were intended for specific
115. purposes compatible with those defined by law for trade unions.
116. 11. As regards the allegations of anti-union discrimination, the Government
117. replied to allegations of eight instances of discrimination (dismissal of
118. trade union leaders and of trade unionists who did not accept the solidarist
119. model, pressure on workers to join solidarist associations or to leave a trade
120. union, etc.), but merely stated for the rest that the allegations had no legal
121. foundation in the majority of cases and that, in view of the volume of
122. documentation involved, it was sending neither documents nor comments. The
123. Government nevertheless stated that it had set itself the priority of revising
124. labour legislation and bringing it up to date, including, in particular, a
125. specific chapter on unfair labour practices (acts or omissions designed to
126. constrain or prevent workers or groups of workers from exercising their rights
127. or to restrict these rights, actions including inducing workers to join or
128. leave particular unions, and unjustified or unlawful dismissal designed to
129. undermine workers' support of trade unions).
130. III. Conclusions formulated by the Committee on Freedom of Association
131. 12. At its meeting of May 1990, the Committee noted that the Act on Solidarist
132. Associations of 1984 provided that such associations may be formed by 12 or
133. more workers. Section 4 defines the associations as follows:
134. Solidarist associations are bodies of indeterminate duration which have their
135. own legal personality and which, to achieve their purposes (the promotion of
136. justice and social peace, harmony between employers and workers and the
137. general advancement of their members), may acquire goods of all kinds,
138. conclude any type of contract and undertake legal operations of any sort aimed
139. at improving their members' social and economic conditions so as to raise
140. their standard of living and enhance their dignity. To this effect they may
141. undertake savings, credit and investment operations and any other financially
142. viable operations. They may also organise programmes in the areas of housing,
143. science, sport, art, education and recreation, cultural and spiritual matters
144. and social and economic affairs and any other programme designed legally to
145. promote cooperation among workers and between workers and their employers.
146. Section 18 of the Act lists the income of solidarist associations as coming
147. from the following:
148. (a) The members' minimum monthly savings, the percentage of which shall be
149. determined by the general meeting. The percentage may in no case be less than
150. 3 per cent nor more than 5 per cent of the remuneration ... Members may save a
151. higher sum or percentage voluntarily ... Members authorise their employer to
152. deduct the relevant amount from their remuneration and to pay it to the
153. association ...
154. (b) The employer's monthly contribution on behalf of his workers, which shall
155. be determined by common agreement between the two sides in accordance with
156. solidarist principles ... (See 272nd Report, para. 441.)
157. 13. The Committee expressed its serious concern at the weakening of the trade
158. union movement in Costa Rica and the considerable decline in the number of
159. trade union organisations in recent years. It appeared to the Committee on the
160. evidence so far available that these phenomena were connected with the
161. development of solidarist associations. The Committee emphasised in this
162. connection the fundamental importance of the principle of tripartism advocated
163. by the ILO, which presupposed organisations of workers and of employers which
164. were independent of each other and of the public authorities. Given the
165. importance of this principle, the Committee expressed the hope that the
166. Government would take measures, in consultation with the trade union
167. confederations, to create the necessary conditions for strengthening the
168. independent trade union movement and for developing its activities in the
169. social field. (See 272nd Report, para. 442.)
170. 14. At its meeting of November 1990, the Committee formulated the following
171. conclusions. (See 275th Report, paras. 316 to 321.)
172. From all the information contained in the allegations and in the Government's
173. replies, the Committee infers that solidarist associations are associations of
174. workers which are set up dependent on a financial contribution from the
175. relevant employer and which are financed in accordance with the principles of
176. mutual benefit societies by both workers and employers for economic and social
177. purposes of material welfare (savings, credit, investment, housing and
178. educational programmes, etc.) and of unity and cooperation between workers and
179. employers; their deliberative bodies must be made up of workers, though an
180. employer's representative may be included who may speak but not vote. In the
181. Committee's opinion, although from the point of view of the principles
182. contained in Conventions Nos. 87 and 98 nothing prevents workers and employers
183. from seeking forms of cooperation, including those of a mutualist nature, to
184. pursue social objectives, it is up to the Committee- in so far as such forms
185. of cooperation crystallise into permanent structures and organisations- to
186. ensure that the legislation on and the functoning of solidarist associations
187. do not interfere with the activities and the role belonging to trade unions.
188. The Committee notes with satisfaction the decisions taken by the Government
189. and the intentions it expressed with respect to the important issues raised by
190. the present case, with a view to clarifying the role of unions and solidarist
191. associations and to improving the legislation. In practice, the Committee
192. welcomes the fact that:
193. - the Government has decided to submit a Bill to the Legislative Assembly
194. whereby the management and administrative bodies as well as the legal
195. representatives of solidarist associations would be prohibited from
196. participating directly or indirectly in collective negotiations on labour
197. matters, the purpose of the said Bill being to prevent solidarist associations
198. from impinging on the attributes and functions of the trade unions, such as
199. collective bargaining;
200. - the Government, as a matter of policy, has made a point of refusing to
201. approve and register direct settlements reached by any group of workers and
202. their employer when proceedings were already under way by a trade union
203. organisation with a view to reaching a collective agreement;
204. - the Government has set itself the priority of revising labour legislation
205. and bringing it up to date, including in particular a specific chapter
206. ("unfair labour practices") on anti-union discrimination (actions or omissions
207. designed to constrain or prevent workers or groups of workers from exercising
208. their rights or to restrict these rights; actions including inducing workers
209. to join or leave particular unions; and unjustified or unlawful dismissal
210. designed to undermine workers' support of trade unions);
211. - the Government deems it necessary and advisable to determine means of
212. protecting the assets of trade union organisations by affording them the
213. possibility of making profit-making investments, provided the profits are
214. intended for specific purposes compatible with those defined by law for trade
215. unions.
216. The Committee strongly hopes that the Government will take all necessary
217. measures to implement as soon as possible its decisions and intentions
218. concerning collective bargaining, anti-union discrimination the and economic
219. activities of the trade unions, that it will consult the social partners in
220. that respect, and that it will speed up the proceedings concerning the Bills.
221. As regards the allegations of anti-union discrimination and interference
222. (dismissals of trade unionists who do not accept the solidarist model,
223. pressure exerted on workers to join solidarist associations or to leave trade
224. unions, etc.), the Committee regrets that the Government has replied to only
225. eight of the numerous allegations made by the complainant organisation
226. (presented in September 1989). The Committee requests the Government to answer
227. the other allegations.
228. As regards the allegations that there is a drop in the number of collective
229. agreements and an increase in the number of direct settlements, the Committee
230. has not received the comparative table of collective agreements and direct
231. settlements to which the Government refers in its reply.
232. The Committee notes that the Government has presented statistics, according to
233. which, so far, balanced amounts of public subsidies have been paid to trade
234. unions and to solidarist associations, it has also sent the text of a Bill
235. which establishes a tax ("the solidarist stamp") for the benefit of the
236. solidarist movement. The Committee asks the Government to indicate whether it
237. intends to maintain this balance in the future. In addition, the Committee
238. wishes to be informed of the Government's views regarding the possibility of
239. the law allowing trade union organisations to make use of the funds set aside
240. for termination benefits in order to undertake activities in the social field.
241. Finally, the Committee notes that the points of view expressed by the
242. complainant organisation and the Government differ on several important
243. issues, for instance as regards the alleged unequal treatment of unions and
244. solidarist associations under the legislation and by the authorities, the
245. allegation that the solidarist associations impinge upon the unions' exclusive
246. attributes and functions and the situation, in practice, concerning acts of
247. anti-union discrimination. In order to have all the necessary information to
248. examine these allegations, the Committee recommends the Governing Body to
249. request that the Government accept a direct contacts mission to Costa Rica.
250. IV. Major aspects examined
251. 15. Based on the mission's findings, the following paragraphs will examine
252. various aspects of the complaint concerning, first, the activities of
253. solidarist associations in industrrial relations and, second, the treatment
254. accorded to solidarist associations and trade union organisations, as well as
255. acts of anti-union discrimination. First, however, and in keeping with the
256. guidelines of the Committee on Freedom of Association in the present case (see
257. 275th Report, para. 316, reproduced in para. 14 of this report), it may be
258. useful to review in general terms the development of solidarism and its
259. repercussions on freedom of association.
260. The development and implications of solidarism
261. 16. Solidarism is a deeply rooted concept in Costa Rica, although it has a
262. number of slightly different meanings, depending on whether it refers to an
263. idea, to a movement, or to associations. First of all, solidarism is a concept
264. which was introduced in 1947 by Alberto Martén, a Costa Rican citizen, with a
265. view to promoting the joint action of employers and workers, to the benefit of
266. the latter. In addition, it is common to speak of a solidarist movement, which
267. promotes and fosters associations along one of at least two major
268. orientations: that espoused by the Costa Rican Solidarist Union, a civil
269. association, and that of the John XXIII Social School, created by the
270. Archbishop of San José. Lastly, there are the solidarist associations; the
271. first of these was set up in 1949 under the inspiration of Mr. Martén, under
272. the General Act on Associations; since 1984 they have been governed by the Act
273. on Solidarist Associations.
274. 17. It is important to note that the three definitions of solidarism (as an
275. idea, movement or association) may, in practice appear somewhat confused, and
276. that there is some rivalry in the use of the term. In particular, references
277. to a solidarist movement generally concern the Solidarist Union or the John
278. XXIII Social School. Both of these bodies have collaborated in the past; in
279. 1979 the Solidarist Union entrusted to the John XXIII Social School the
280. training of solidarist workers and employers. At present, these institutions
281. hold somewhat divergent positions, especially as regards trade unions, and
282. each has its own field of action: the Solidarist Union is active mainly in the
283. Central Valley, while the John XXIII Social School operates on the Atlantic
284. Coast, where it is in full control of solidarist action, and in the Central
285. Valley and the south.
286. 18. These three exceptions as regards the meaning of solidarism can result in
287. some confusion in examining the problems raised in the complaint; for while
288. the complaint focuses on solidarist associations and the Act which governs
289. them, it is impossible fully to understand the development of solidarism in
290. Costa Rica, which really began only in the 1970s, and culminated in the
291. adoption of the Act on Solidarist Associations, if one fails to take into
292. account the existence, orientations and promotional or guiding activities and
293. opinion-shaping measures of the Solidarist Union and the John XXIII Social
294. School. In this connection, it may suffice to note that the number of
295. solidarist associations increased dramatically as from 1979, the year in which
296. these institutions entered into an agreement on cooperation. The growth in the
297. number of solidarist associations is reflected below.
298. Solidarist associations and trade unions
299. Year Solidarist associations Trade unions
300. 1979 168 *
301. 1980 216 222
302. 1981 * 281
303. 1982 465 292
304. 1983 * 291
305. 1984 * 288
306. 1985 * 359
307. 1986 862 335
308. 1987 976 356
309. 1988 1089 411
310. 1989 1175 469
311. 1990 1154 420
312. * No data.
313. Source: Ministry of Labour and Social Security.
314. Solidarist associations: Mutual benefit societies and industrial relations
315. 19. In accordance with the Act on Solidarist Associations, these associations
316. were comprised of and managed by workers; they were funded by minimum monthly
317. contributions from their members and a monthly contribution from the employer,
318. which is charged against what the employer was required to set aside for
319. termination benefits (the termination fund). Solidarist associations may
320. engage in a number of activities, including profit-making commercial
321. activities, with a view to improving the socio-economic conditions of their
322. members (sections 5, 14 and 16 of the Act on Solidarist Associations). These
323. associations usually had savings and credit plans and, where they were in a
324. position to do so, also engaged in the sale of consumer products, offered
325. health services, housing, recreation, investment, enterprise creation and
326. complementary pension schemes. From this point of view, solidarist
327. associations bore a strong resemblance to mutual benefit societies; as a
328. whole, they had amassed substantial funds and distributed dividends to their
329. members. There were approximately 1,300 such associations at the moment.
330. Thanks to the dynamism and effectiveness of their "mutualist" activities,
331. solidarist associations enjoyed great prestige in Costa Rica, notwithstanding
332. administrative or financial problems in some associations, which were usually
333. due to employers being in arrears in their payment of contributions, or to
334. risky loans made by an association to the enterprise in which its members
335. worked. The mission was provided information on eight cases of enterprises in
336. the private sector in which solidarist associations had serious temporary or
337. irreversible financial problems; in addition, a survey in the public sector
338. revealed that five of 38 associations faced problems owing to the failure of
339. employers to make their regular contributions (N. Ortega and L.A. Cubero,
340. Survey of Solidarist Associations in the Public Sector. Research for thesis on
341. Rise and development of solidarism in the Costa Rican public sector, 1984-89,
342. University of Costa Rica, Oct. 1990, table 32).
343. 20. In addition to their "mutualist" functions, solidarist associations might,
344. in practice, directly or indirectly undertake activities which clearly fell in
345. the area of labour demands or industrial relations, which were proper to trade
346. union organisations, and in spite of an express prohibition contained in the
347. Act (section 8). This occurred spontaneously, when an association, in the
348. absence of a trade union, was faced with the need to intervene on behalf or in
349. defence of workers, for example, in order to avoid a dismissal or to oppose
350. arbitrary measures taken by an employer, or to obtain wage increases or
351. improvements in the condition of work. Or it could occur intentionally and
352. with premeditation, for example, to promote the direct settlement of
353. conditions of work with the employer. The mission was also informed that this
354. activity of solidarist associations has contributed to minimising the demands
355. of workers.
356. 21. Solidarist leaders repeatedly informed the mission that solidarist
357. associations, as such, did not play a role in workers' demands, although
358. individual members of the association may do so. Nevertheless, in examining
359. the specific activities of these associations, it was clear that these
360. associations may be called upon to intervene in industrial relations, as
361. alleged by trade union leaders. And in fact, the leaders of the Costa Rican
362. Solidarist Union were unable to state categorically that certain associations,
363. in particular those which they did not control, did not intervene in "trade
364. union" functions. For their part, the leaders of the John XXIII Social School
365. informed the mission that, thanks to solidarism, many enterprises on the
366. Atlantic Coast had seen a revival of the occupational safety and health
367. committees provided for in sections 193 and following of the Labour Code, and
368. that the actions of these committees had helped considerably to reduce the
369. incidence of employment accidents. In addition, the School provided training
370. to workers concerning the rights and duties arising from employment contracts
371. and had intervened with employers in serious cases of late payment of wages or
372. dismissals, or in the promotion of direct settlements. Likewise, the
373. representative of the Federation of Private Enterprises of Central America and
374. Panama (FEDEPRICAP) stated, in an individual capacity, that solidarist
375. associations could behave like trade unions through labour relations
376. committees; he noted that in times of crisis solidarism may become a genuine
377. trade union, inasmuch as the association's existence may reduce but did not
378. eliminate confrontation with the employer, especially as regards the
379. percentage of the employer's contribution. In addition, he stated that some
380. enterprises took advantage of solidarist associations and used them to prevent
381. the establishment of trade unions, against which they discriminated, as had
382. occurred in banana plantations.
383. 22. In reality, solidarism appeared to engage in competition with trade
384. unionism when it made repeated references to the "solidarist option",
385. suggesting that solidarist associations represented an alternative to trade
386. unions or cooperatives. There would be no reason for such a comparison if the
387. movements were entirely different. In an article published in 1984, which
388. agreed with statements made to the mission, Mr. Rodrigo Jiménez, the Executive
389. Director of the Solidarist Union, was reported to have said "... solidarism is
390. compatible with trade unions and cooperatives, but differs considerably from
391. both types of organisations, among other reasons because trade unionism
392. promotes confrontation between workers and employers; it is ideological, has
393. external influences and is financed by the contributions of workers (...);
394. solidarism, on the other hand, is more advanced than cooperativism (and trade
395. unionism) and pursues global improvements on the basis of an ethical
396. understanding between workers and employers ..." (La República, 16-9-84). Mr.
397. Jiménez also explained to the mission his point of view concerning the
398. justification for associations and trade unions in the following terms: "A
399. good employer needs a good solidarist association; a bad employer needs a good
400. trade union".
401. 23. For its part, the John XXIII Social School also seemed to be in
402. competition with at least certain aspects of trade unionism, if one was to
403. judge by the following description of its activities: "... Item 2:
404. Establishment of solidarist associations in industrial, commercial and
405. agricultural enterprises, whether public or private. In the past three years
406. increasing importance has been given to the banana sector which, since 1930,
407. has been dominated by the communists and trade unions and confederations which
408. subscribe to that ideology". The School's position on trade unionism is the
409. following: "... Solidarism, trade unionism, solidarist union: A. The John
410. XXIII Social School, in promoting solidarism, does not underrate trade
411. unionism. On the contrary, as an advocate of the Church's Social Doctrine, it
412. supports and stimulates it. The problem resides in the fact that the majority
413. of trade unions in Costa Rica, as elsewhere in Latin America, are dominated by
414. communists. For this reason it is necessary to promote associations, such as
415. solidarist associations, in order to purify the trade unions and seek the
416. advancement of workers ..." (this quotation of a document of the John XXIII
417. Social School is drawn from Juan José Flores, El solidarismo desde adentro,
418. San José, ASEPROLA, 1989). The School defines the purposes of a solidarist
419. association as follows: "... To improve wages, hours of work and other
420. conditions of work, and to carry out a variety of projects for the benefit of
421. workers without violence or class struggle. Solidarist associations seek
422. harmony and the worker's contribution to the association to which he belongs,
423. together with the contributions of the employer". (John XXIII Social School,
424. La doctrina social de la Iglesia (Introducción a su estudio). Doctrinal
425. series, San José, Ministry of Public Education, 1985, p. 74.) Along the same
426. lines, the publications' branch of the labour relations department of the
427. BANDECO company stated that: "... No one can fail to recognise the harm caused
428. to the country and to certain private enterprises by certain trade union
429. movements with a very negative bent (...). While these unfortunate events were
430. taking place, (...) the seeds of solidarism were already germinating (...).
431. The list of benefits which solidarism has brought is endless. (...) Social
432. peace, good relations between management and labour, dialogue, economic
433. well-being, mutual assistance, understanding, labour stability, freedom which
434. has not degenerated into licentiousness, the sound organisation of solidarist
435. associations, these are some of the fruits that come from a worker embracing
436. the principles of solidarism, which are based on Christian social doctrine
437. ..." (La Fagina, op. cit., p. 2).
438. 24. The mission was told that in certain enterprises and public bodies
439. solidarist associations and trade unions coexisted peacefully, each active in
440. its own area, as evidence that they were not incompatible social
441. organisations. A number of trade union representatives and workers noted,
442. however, that such cases of coexistence were very rare, and this information
443. was confirmed by other sources. They also stated that, in most cases, the
444. presence of a solidarist association was considered as a threat by the trade
445. union. In the survey of solidarist associations and trade unions in the public
446. sector (pp. 11 and following, quoted in paragraph 19 of this report) the
447. following tentative conclusions were formulated: (a) according to the majority
448. of trade unionists interviewed: (1) the reasons for behind the creation of
449. solidarist associations was the desire to obtain economic and social benefits
450. for workers and to give employers the wherewithal to challenge the trade
451. union; (2) solidarism did not supplant trade unionism because each had
452. different objectives, different ideologies and trade unions were more
453. confrontational; (b) according to the trade unionists: (1) the reasons for the
454. establishment of solidarist associations were the search for the economic
455. advancement of workers and the setting up of their own alternative; (2) the
456. major contribution of solidarism in the public sector was to promote savings
457. by the worker, to improve labour relations and to enhance the worker's
458. socio-economic well-being; (3) solidarism did not supplant trade unionism
459. because it had different objectives, but 61.5 per cent considered that
460. solidarist associations might replace trade unions in industrial relations
461. because solidarism sought harmony between the employer and the worker; (c)
462. where both types of organisations coexisted, relations between them were
463. considered good by 43.8 per cent of the solidarists interviewed, but by only
464. 38.9 per cent of trade unionists interviewed; and both agreed that the State
465. favoured the creation of solidarist associations through the Act on Solidarist
466. Associations, institutional support and the transfer of funds set aside for
467. termination benefits.
468. 25. To gain first-hand knowledge of a successful experience in the coexistence
469. of both types of social organisations, the mission was able to visit the
470. headquarters of the solidarist association and the trade union of the Líneas
471. Aéreas Costarricenses S.A. (LACSA) Costa Rican Airlines Company. There were
472. several aspects of this case which made it exceptional: the enterprise had
473. some 850 workers; most of them belonged to both organisations, and many of
474. them had relatively high occupational skills. The association was founded in
475. 1954 and had managed to grow on its own, uninfluenced by the Solidarist Union
476. or the John XXIII Social School; it had a capital of some 200 million colones
477. (US$1.6 million, approximately). The trade union dated back to 1970; there was
478. a collective agreement in the enterprise pursuant to which termination
479. benefits were virtually an acquired right for all workers, and not only for
480. solidarists (other workers were denied this indemnity only in the event of
481. fraud). There seemed to be no rivalry between the organisations (in a joint
482. meeting several of their leaders explained to the mission the roles and
483. advantages of each). According to the statements of solidarist representatives
484. of LACSA and other persons interviewed, it appeared that it would be difficult
485. to duplicate this situation in a small enterprise, and that it was practically
486. impossible for an association and a trade union to be administered by
487. different persons. For labour-related questions, the enterprise needed to have
488. access to an interlocutor who spoke for the workers, and when this
489. interlocutor was not a trade union, a solidarist association could carry out
490. this role.
491. Solidarism's incursion into labour relations: The administration of
492. termination benefits, permanent committees and labour relations boards
493. 26. The activities of solidarist associations, or of the solidarist movement,
494. in labour relations could take one of three forms: the employer's
495. contributions, the permanent committees through which agreement was reached on
496. the so-called "direct settlements" and the labour relations boards.
497. 27. The creation of a solidarist association presupposed the agreement of the
498. employer, who made it possible by means of a cash contribution. This
499. contribution consisted of a percentage of the compensation prescribed for the
500. termination of a contract of employment without limit of time, which the
501. employer was required to pay in the event of unjustified dismissal, justified
502. retirement, or retrenchment for any cause against the worker's wishes (section
503. 29 of the Labour Code), which he freely agreed to transfer to the association
504. for it to administer. The very act of setting up the association depended on
505. the wishes of the employer who agreed to finance it and who could insist on
506. the fulfilment of certain conditions thus placing the association more or less
507. under the employer's dominance. In addition, however, this act opened up the
508. possibility of demands by the workers belonging to the association, either as
509. regards the initial determination of the percentage of the employer's
510. contribution, which may not be less than 3 per cent of the wage, or in the
511. event that the employer, owing to economic difficulties, proposed temporarily
512. to reduce the amount of the contribution (as had happened in a specific case
513. cited by a leader of the Union of Chambers); or, conversely, to demand an
514. increase in the employer's contribution, or other benefits for the
515. association. In addition, as noted by trade union leaders, the employer's
516. so-called contribution was in fact charged against an indemnity which the
517. employer was required to pay to workers upon termination of their contracts of
518. employment, and the administration of these funds should therefore be
519. entrusted to a trade union organisation rather than a mutual benefit society,
520. or at least to both under the same conditions.
521. 28. At any given point in time, a permanent committee of workers might be set
522. up within an enterprise to agree on a direct settlement concerning conditions
523. of work. The Labour Code recognised collective agreements, signed by employers
524. and workers' trade unions, as well as direct settlements, signed only by
525. employers and workers, with or without the intervention of mediators. The
526. principle of collective agreements was enshrined in the country's
527. Constitution, and these agreements were designed to regulate employment
528. conditions with "the force of law" (section 62 of the Constitution and section
529. 54 of the Labour Code). Direct settlements, on the other hand, were a means
530. employers and workers could use to resolve their differences (section 497 of
531. the Labour Code).
532. 29. Experience had shown that, owing to the weak presence of trade unions in
533. enterprises, the positions on permanent committees were usually occupied by
534. solidarists. The leaders of the John XXIII Social School and of the Solidarist
535. Union claim that solidarists participated in these committees in an individual
536. capacity. Nevertheless, a number of parties, including some solidarists,
537. stated that the John XXIII Social School maintained a position which opposed
538. the trade union movement and promoted direct settlements through permanent
539. committees, and that the School went so far as to serve as the "mediator" in a
540. number of specific direct settlements. This had been the case, for example, in
541. Agroindustrial Pacuare S.A. (28-3-88), Yucatica SA (2-6-89) and Standard Fruit
542. Company's Farm 6 at Rio Frio (16-9-89). The "mediator" was a third party
543. acting in good faith to facilitate the settlement of a dispute (section 497 of
544. the Labour Code), and the School's participation in the above-mentioned direct
545. settlements evidenced its interest in the development of collective labour
546. relations through the permanent committees. This interest had been mentioned
547. no less than by the Director of the School, in a communication sent to the
548. mission, as follows: "... In enterprises where solidarism exists, it is common
549. to speak frequently with the different groups of workers, permanent committees
550. (...) etc., (...). This has made it possible to consolidate the role of
551. permanent committees as defenders of workers' rights". Although to a lesser
552. extent, the Solidarist Union had also become involved in regulating the
553. conditions of work through direct settlements, but it stated that it was
554. currently against direct settlements as activities of solidarist associations
555. and that it had an open attitude towards all of the trade union movement. In
556. the opinion of one lawyer with ties to the John XXIII Social School, the
557. members of permanent committees were usually solidarist leaders, which implied
558. an overlap between the association and the committees; but in his opinion,
559. this occurred very rarely because of the fact that trade unionism had become
560. much weaker, while acknowledging that direct settlements have increasingly
561. replaced collective agreements in the 1980s. He contended that the problem did
562. not reside in solidarism, but in the use which employers made of a group of
563. workers to undermine collective bargaining.
564. 30. According to trade union representatives, various academic figures and
565. labour lawyers, in practice, the direct settlement had been used by employers
566. and by solidarist leaders not as a disputes settlement mechanism as provided
567. in the Labour Code (section 497), but as a substitute for a collective
568. agreement and to the detriment of any union presence. This had meant that the
569. legal protection was wider in the case of collective agreements and their
570. contents in general were clearly more advantageous to workers. According to
571. trade union representatives, this had occurred in the following undertakings:
572. Empacadora Costarricense Danesa SA (Plumrose), Standard Fruit Company,
573. Yucatica SA and Agropalmito. In these cases, permanent committees and direct
574. settlements appeared to be expressions of solidarist action, at least for some
575. of these associations, in contrast to collective agreements which, by law,
576. were part of union action. According to the tables supplied by the Government
577. listing agreements and settlements signed between 1980 and 1989, since 1985 in
578. the private sector direct settlements outnumbered collective agreements.
579. According to officials of the Labour Affairs Department of the Ministry of
580. Labour, 45 collective agreements were currently in force in the country (15 of
581. which applied to the private sector) and 91 direct settlements were in force
582. (87 of which covered the private sector); the total number of trade unions
583. stood at 539 (having 167,275 members) and of solidarist associations at 1,335
584. (having 173,269 members).
585. 31. One professor of labour law told the mission that in the past an
586. undertaking where there was a current collective agreement would install a
587. solidarist association and when the agreement expired, the undertaking
588. denounced it without the union having the possibility of requiring that its
589. renewal, then allowing the possibility of a direct settlement to be entered
590. into with a "permanent committee"; all this thus left the union with a merely
591. symbolic role, or it simply disappeared. Something of this sort had happened
592. at the Carmen SA banana company in 1986. According to official documents
593. handed over to the mission, on 21 March 1986 the Secretary General of the
594. Union of Agricultural Plantation Workers gave notice of the termination of the
595. current collective agreement which it had signed with the company and sent the
596. draft of a new agreement for discussion as from the following 14 April; on 29
597. March the permanent committee signed a direct settlement with the company as
598. was noted in the document deposited with the Ministry of Labour on 31 March
599. 1986. A similar situation occurred at the Atlantis Costarican Company SA
600. where, rather than signing a collective agreement with the union, a direct
601. settlement was entered into and various worker leaders and trade union
602. activists were dismissed. Something different occurred with the Union of
603. Workers of the GuaCimo and Potosi Plantations: the dissolution of the union
604. was requested and obtained from the courts, and of the 35 collective
605. agreements it had negotiaited, 33 were not able to be renewed.
606. 32. Representatives of employers and of the John XXIII Social School pointed
607. out that in some cases the workers' preference for a direct settlement over a
608. collective agreement was evidenced in a ballot and they repeatedly referred to
609. the vote which had taken place in the Bandeco Company. The trade union
610. leaders, including leaders from the Atlantic Zone, told the mission, however,
611. that the only case of a ballot of this nature had been the Bandeco vote (which
612. was confirmed subsequently by Ministry of Labour officials) and that it had
613. involved serious irregularities.
614. 33. In some cases there was jurisprudence contrary to the free acceptance of
615. direct settlements (for example, a 1984 judgement was mentioned which refused
616. to allow a late settlement without the signature of the workers' delegates).
617. In addition, according to the Government's latest reply to the Committee on
618. Freedom of Association of September 1990 and as noted by the mission, the case
619. of the Agropalmito SA Company gave rise to a change in administrative
620. practice. Following that case the Minister of Labour has decided to reject the
621. approval and registration of a direct settlement if a collective labour
622. agreement was being negotiated.
623. 34. In companies there could also be a labour relations council created by
624. agreement, namely a joint body to serve as a place for dialogue between the
625. company and its workers and to monitor the fulfilment of contractual
626. obligations. The solidarist leaders maintained that their associations did not
627. interfere in the activities of the labour relations councils. Nevertheless,
628. there were signs of a narrow link between the two. For the time being, in the
629. organisational framework that the Solidarist Union proposed for the
630. associations, several possible committees existed and one of them was the
631. labour relations committee in whose activities the labour relations council
632. was interested (see Costa Rican Solidarist Union, Solidarism: Tools for
633. welfare, San Pedro, Sursum, 1989). For its part, the John XXIII Social School
634. claimed the task of promoting "... the creation of employees' associations and
635. labour relations councils in undertakings, ..." (El Solidarista Bulletin, John
636. XXIII Social School, April 1978, No. 16). But, in addition, all the solidarist
637. officials consulted were unanimous in recognising that, frequently, the worker
638. members of the labour relations councils were members or even leaders of the
639. corresponding solidarist association and, although they insisted that their
640. participation was on an individual basis, it was difficult to separate this in
641. reality from the creation and policies of the solidarist association or the
642. solidarist movement. It must be kept in mind that most of the undertakings in
643. Costa Rica have no more than 20 workers, or not even that many, which meant
644. that the solidarist leaders were often also the persons chosen to take part in
645. the labour relations councils. Moreover, from the philosophical point,
646. solidarism did not favour confrontation between employer and workers, and,
647. when faced with wage claims, preferred sharing the profits of the company. It
648. was therefore normal that the fact that the same persons held office in the
649. association and the council led to there being, in some cases, a certain
650. influence- below the claims level- on the behaviour of the labour relations
651. councils.
652. 35. It is useful to examine a few direct settlements so as to understand the
653. role and composition of the permanent committee, the labour relations council
654. and the other joint bodies, as well as their links with solidarism and, in
655. particular, with the John XXIII Social School. The mission examined the direct
656. settlements covering the following enterprises: the Carmen SA Banana Company
657. (31 March 1986), Empacadora Costarricacense Danesa SA (Plumrose) (23 April
658. 1987), Agroindustrial Pacuare SA (28 March 1988), Yucatica SA (2 June 1989),
659. Standard Fruit Company's Finca 6 in the Zona de Rio Frio (16 September 1989)
660. and the Siquirres SA Banana Company. In some of these direct settlements, the
661. company stated that it aimed at achieving a climate of genuine industrial
662. peace in the framework of the solidarist principles and listed some of its
663. aims: solidarity between the company and the workers; the constant improvement
664. of the workers as human beings; and the ongoing improvement of working
665. conditions. The permanent committee was defined as the legal body which
666. represented workers in the workplace and was responsible for the examination,
667. improvement and defence of their economic and social interests. It was the
668. interlocutor with whom the company dealt when cases were presented to it so as
669. to arrive at a climate of genuine industrial peace in accordance with
670. solidarist principles. It was made up of a varying number of workers. The
671. labour relations council was assigned the function of monitoring the
672. implementation of the direct settlement and comprised, in general, three
673. workers' representatives from the works committee and three representatives of
674. management, although in one case a membership of two members from each party
675. and a fifth elected by the majority was provided for. Some settlements
676. envisaged the creation of an occupational safety committee having joint
677. membership. Others included a clause recognising the solidarist association or
678. undertaking to create such an association and to facilitate its functioning;
679. other clauses called for support for solidarism either through the grant of a
680. contribution so that an initial meeting could be held (called the general
681. assembly of workers) or through the use of premises for "the permanent
682. committee and other committees of solidarist associations", or through gifts
683. of a fan or scales or through benefits given to the workers. The latter
684. involved permission to take part in courses at the John XXIII Social School,
685. or the grant of a place where a workers' club could be built with the
686. solidarist association, or monetary gifts for celebrating mothers' or fathers'
687. day, or the delivery of lower grade bananas for sale with the profits going to
688. the association. In three of the above-mentioned settlements, one or several
689. mediators had taken part on behalf of the John XXIII Social School. In these
690. settlements there were indeed benefits for the School or for the association.
691. Treatment of union organisations and solidarist associations
692. 36. The complaint pointed out that the solidarist associations received
693. preferential treatment from the legal point of view, and from the government
694. and the employer sector, to the detriment of the trade union movement. The
695. mission asked for information on the treatment of the two types of body and on
696. the alleged anti-union discrimination.
697. 37. From the standards point of view, the Constitution listed among the
698. individual rights and guarantees, the right to associate for legal objectives,
699. and declared that nobody could be obliged to join any association (section
700. 25); it listed among the social rights and guarantees, the right of employers
701. and workers freely to unionise with the sole objective of obtaining and
702. maintaining economic, social or occupational benefits (section 60); it also
703. required the promotion of cooperatives as a means of attaining better living
704. conditions for workers (section 64). Thus the specific right to unionise had
705. constitutional backing, whereas solidarist associations or other types of
706. associations were expressions of the general right to associate.
707. 38. As for the legislation, the treatment of solidarist associations- their
708. creation and functioning- was simpler and more flexible than that accorded to
709. trade unions. This could be seen from the standards relating to the minimum
710. number of members, their right to compensation payments, the functions they
711. were allowed to carry out, the penalties for deviating from their aims and the
712. designation of their executive committees.
713. 39. To set up a solidarist association, 12 workers were needed, whereas a
714. union required 20 members. But not only was a lesser number required in the
715. first case, but the minimum number of workers required to set up a works union
716. was much higher and almost impossible to achieve in most Costa Rican companies
717. because, as indicated above, the companies usually employed barely 20 workers
718. or less. In addition, the workers most linked to the employer, and especially
719. the employers' representatives, usually did not join a union; they were
720. however members of the solidarist association. This meant that it was not only
721. easier to set up a solidarist association rather than a union organisation
722. (because of the minimum number of members required and the possibility of
723. including workers who had the employer's confidence), but this minimum number
724. made it impossible for a union to be formed in most of the country's
725. undertakings.
726. 40. By law, the solidarist association could count on a monthly contribution
727. from the employer as part of its economic resources, a contribution that trade
728. union organisations, of course, did not receive unless provided for in a
729. collective agreement (which was a very rare occurrence). This contribution was
730. considered to be part of the termination fund for the payment of compensation
731. in certain cases of termination of the employment contract, such as
732. unjustified dismissal, justified retirement or retrenchment for any cause
733. against workers' wishes, in accordance with the Labour Code (section 29).
734. However, under the Act on Solidarist Associations (section 21), each worker
735. member who retired or was dismissed would receive from the termination fund at
736. least the percentage that the employer had paid to the association.
737. Consequently, this Act created a situation favouring workers in such
738. associations over other workers in the undertaking as regarded the right to
739. compensation benefits because some would receive them in any case of cessation
740. of employment and others would not. This situation gave an advantage to the
741. solidarist associations which the unions could not offer and resulted in a
742. discrimination between workers. The unions were demanding the right to use the
743. termination fund for all workers and the right to administer it in the same
744. way as solidarist associations did.
745. 41. Comments on the different treatment concerning the termination fund were
746. made to the mission by the most varied sectors and, in particular, by the
747. labour law professors who were consulted. However, at the same time, the
748. representatives of management were hostile to the idea of extending the right
749. to use the termination fund to all workers in circumstances such as those
750. which workers belonging to a solidarist association have today, namely,
751. without any distinction concerning the way in which the employment contract
752. was terminated. Even the President of the Republic said that he agreed that
753. the termination fund should be converted into a real right available to
754. workers in all cases of cessation of the employment contract; he also shared
755. the idea of recognising the right of workers to participate in the
756. undertaking's profits.
757. 42. As regarded the scope of economic activities permitted by legislation, the
758. solidarist association could carry out an extremely wide range including
759. profit-making operations (section 4 of the Act on Solidarist Associations); on
760. the other hand, union representatives told the mission that unions were
761. prohibited by law from engaging in profit-making commercial activities
762. (section 280(b) of the Labour Code). This ban did not hinder them carrying out
763. economic activities and, in particular, "creating, administering or
764. subsidising institutions, establishments or social activities for common use
765. such as cooperatives, sport, cultural, educational, and welfare societies"
766. (section 270(c) of the Labour Code). The country also had a workers' bank
767. which was managed mainly by the unions. However, as several persons pointed
768. out, it was clear that on this point the Labour Code was less broad than the
769. Act on Solidarist Associations.
770. 43. It appeared that the recommendations made by the Committee on Freedom of
771. Association in Case No. 1304 against the Government of Costa Rica had had an
772. influence on one amendment in the draft Act on Solidarist Associations
773. according to which there was a ban on, inter alia, "carrying out any type of
774. activity aimed at preventing or hindering in any way the creation and
775. functioning of trade union organisations and cooperatives" (section 8 (ch))
776. and on employer representatives holding office in executive councils. Despite
777. this, in the opinion of Professor van der Laat, former head of the Law Faculty
778. at the University of Costa Rica: "in practice there are excellent relations
779. bordering on control on the part of the employer with the solidarist
780. associations and, consciously or unconsciously, this type of organisation acts
781. parallel to and in competition with the trade union movement" (La prevención
782. de las pràcticas antisindicales, Labour Debates, 1988 (1):53). In this way an
783. attempt was made to separate the three forms of social organisations and,
784. especially, to prevent solidarist associations from interfering in activities
785. that were part of the unions' domain. Violation of this prescription gave rise
786. to the dissolution of the association, or the removal of its legal
787. representatives as the case may be. Nevertheless, the trade union leaders
788. complained that this sanction had not been applied despite frequent and
789. repeated violations of the above-mentioned ban, and yet there had been cases
790. of dissolutions of major trade unions. Ministry of Labour officials stated
791. that they had received no complaints of an association deviating from its
792. objectives, but they also acknowledged that there was no concrete, simple and
793. clear procedure for complaints to be presented and that this Ministry did not
794. have sufficient staff to monitor the implementation of the Act on Solicarist
795. Associations in this particular respect.
796. 44. From a reading of the Constitution (section 60(2)), the Labour Code
797. (section 275(e)) and the Act on Solidarist Associations (section 14), it
798. appeared that the latter had greater possibilities than union organisations in
799. electing their officials because- apart from the fact that they could include
800. senior employees- it was sufficient that the candidates be adult workers,
801. whereas trade union leaders had to be, in addition, of Costa Rican nationality
802. or foreigners married to a Costa Rican woman and also had to have five years'
803. continuous residence in the country. All of this limited election
804. possibilities.
805. 45. As for the Government's attitude towards solidarist associations or
806. solidarism in general, the union representatives and their legal advisers told
807. the mission that in the public sector adjustment measures- specifically
808. dismissals and restrictions on collective bargaining- had weakened the trade
809. union movement, while in departments such as Social Security solidarism was
810. being promoted. As for the economic support received by the John XXIII Social
811. School and mentioned in the complaint, the School's representatives stated
812. that there was nothing to reproach in the Government making contributions to a
813. church institution that was carrying out social work in favour of workers and
814. not only in the framework of solidarism. Secondly, they wanted to clarify that
815. in place of the millions of colones referred to in the allegations, the amount
816. of government aid actually received had been 1,700,000 colones, given to the
817. Ministry of Planning and Economic Policy. They also stated that the
818. initiatives which had led to the creation of a solidarist bank and of the
819. "solidarist stamp" to finance this movement, came from the Costa Rican
820. Solidarist Union that were not shared with the John XXIII Social School.
821. Lastly, the Government assured the mission that it had the best intention to
822. have freedom of association and the constitutional right to unionise
823. respected. The President and the First Vice-President of the Republic
824. reaffirmed the decision to adopt measures like those explained to the
825. Committee on Freedom of Association, aimed at establishing a clear separation
826. between solidarist associations and unions so as to avoid any possibility of
827. interference in each other.
828. 46. As for the employers and their organisations, there was no doubt that, in
829. general, there was great sympathy and support for solidarism which contrasted
830. with their misgivings or reticence towards the trade union movement, due no
831. doubt in part to past errors of certain trade union organisations and leaders.
832. The mission was told this by senior authorities in the Government,
833. magistrates, preofessors, union leaders and solidarist and employer leaders.
834. Professor van der Laat wrote the following: "... when a workers joins this
835. type of association, his employer approves and the worker is not subject to
836. eventual reprisals as would be the case if he joined a union" (see the
837. above-mentioned article).
838. 47. The very creation of a solidarist association supposed the employer's
839. consent, because the employer agreed to finance it through periodical
840. payments. This expense was evidence of the employer's acceptance of the
841. solidarist association and kept it linked to the association so as to ensure
842. the good management of the money paid over. Moreover, it could be said that in
843. many cases it was the employer who gave the initial encouragement for the
844. formation of an association, in agreement with the John XXIII Social School,
845. or the Solidarist Union, or following steps taken by one of these
846. institutions. Participation in these promoting bodies, in the organisation of
847. the association, as well as the elaboration of its basic documents and the
848. handling of the corresponding files before the Ministry of Labour, all
849. guaranteed that the registration of a new solidarist association would taken
850. place rapidly and without complications. Officials from this Ministry
851. confirmed that this differed from what could happen in the registration of a
852. union organision.
853. 48. In job offers published in the press it was current practice to highlight
854. the existence of a solidarist association in the enterprise as being
855. advantageous; this confirmed the mployer's encouraging attitude towards that
856. type of association. In the testimony received, Government, union and one
857. employer representative, as well as labour law professors, stated that the
858. offer of employment could also, in practice, involve an indication from the
859. employer that he expected the new worker to join the association and in no
860. case to take part in union activities. In the rural or agro-industrial sector,
861. the case of the Bandeco Company was cited: according to trade union leaders,
862. the union had been eliminated and workers' employment depended on their
863. joining a solidarist association.
864. 49. Many witnesses gave the same information concerning cases where an
865. employer did not only clearly support a solidarist association and want all
866. his employees to join it, but also controlled that association's own
867. functioning through directives given to staff having his confidence. The
868. representative of FEDEPRICAP spoke of advantages, including good working
869. conditions, that a solidarist association in a corn company had been able to
870. obtain where the chief of personnel was on the association's executive. The
871. workers and union representatives of several private enterprises stated that
872. the candidates listed on the ticket proposed by senior employees, including
873. the chief of personnel or of the accounting department, tended to win
874. elections for the executive committee due to their competence, their knowledge
875. of the company and the inconvenience for other workers in having to confront
876. them in a contested election. Along the same lines, the leaders of the
877. Solidarist Union who met the mission and who belonged to solidarist
878. associations were mostly senior employees in individual companies; one of them
879. indicated that he was responsible for human resources and another that he was
880. director of the personnel department in a plastics company. An official from
881. the Labour Inspection Department stated that personnel chiefs were in the
882. habit of being members of the executive committees of solidarist associations.
883. Anti-union discrimination
884. 50. In the complaint, reference was made not only to more favourable treatment
885. of solidarist associations over unions, but also to acts of anti-union
886. discrimination and to the lack of adequate legal protection against such acts.
887. The mission was able to obtain information on both these issues.
888. 51. Workers' and union representatives with whom the mission met confirmed
889. emphatically that anti-union persecution was rampant in the private sector.
890. 52. The mission received a full copy of the documentation relating to the
891. dispute between the AURIND SA company and its union which had been registered
892. on 26 April 1989. The members of the executive committee had been dismissed
893. the following day (27 April) for "spreading rumours" against the company.
894. Between 24 April and 5 May 1989, 56 dismissals took place of leaders and those
895. who had taken part in the founding meeting of the union, and there were many
896. denials of having taken part made by several workers. Within the company
897. remained a solidarist association which had been created on 2 May 1989. The
898. Labour Inspector, in a detailed report dated 8 June 1989 and cosigned by the
899. Minister of Labour and Social Security, reached the conclusion that there had
900. in fact been anti-union persecution against the dismissed workers. A court
901. decision dated 23 May 1990 and confirmed in a judgement of 27 June 1990
902. ordered that they be paid compensation for unjustified dismissal.
903. 53. A union representative gave the mission written information on the
904. following complaints of anti-union discrimination: on 5 December 1989 against
905. the Buen Paso SA company, for obstructing union activities and dismissing
906. union leaders; on 17 September 1990 against the National Children's Hospital
907. Society, for harassment of the union committee using the solidarist
908. association, and subsequent dismissal of all the committee's members; on 5
909. June 1989 against the president of the Chamber of Industries, for various
910. reasons including dismissal for trade union reasons, union busting, rejection
911. of collective agreements in the following companies: Calzado Ecco, Pegaso
912. Internacional, Caballero Blanco SA, Creaciones Frances, Perryco SA, Industrias
913. Katuir, Yorkin de Costa Rica, Melkis de Costa Rica, Industrias Romano,
914. Interfashion Industrias, Cocoa Products of Costa Rica. El Gallito Industrial,
915. Constructora Carrez, Coca Cola, Kokomerica SA, Pozuelo SA, Ladrillera La
916. Sabana, Exportadora Almah SA, Sazapati SA, Leonisa SA, Nusuet SA, Textiles S &
917. R, Durman Esquivel, Dos Pinos, Plywood Costarricense, Yanber de Costa Rica,
918. Skyline SA, Ceinsa SA, Industrias Dada SA, Industrias Eiffel SA, Tica Tex SA,
919. Sansung SA, Coceca SA, Plumrose SA, Realtex SA, Textiles Dragon SA, Textiles
920. El Roble, Bali SA; On 5 March 1991 by virtue of an appeal for constitutional
921. protection (amparo) before the Constitutional Chamber of the Supreme Court
922. against La Bilbaina SA for obstructing union action and dismissals following a
923. collective dispute of an economic and social nature.
924. 54. According to the legal adviser of various unions, in agriculture
925. anti-union discrimination had been encouraged by precarious employment
926. evidenced by the systematic use of fixed-term contracts for short periods. It
927. had also been supported by coercion such as the dismissal of the relatives of
928. workers who were engaged in union activities, by ill-treatment, by poor
929. working conditions and especially by the penalisation of certain workers. This
930. merited particular importance given, for example, that there was massive abuse
931. in the use of pesticides and that the houses of many workers were in a piteous
932. state. He pointed out that solidarist shops which were meant to sell necessary
933. items at low prices could be used to tempt the worker into buying costly
934. articles on credit, thus diminishing his available salary and creating a
935. dependency between the worker and his company through such shops. This
936. dependence in turn served to strengthen the worker's link to the solidarist
937. association and to distance him from the union.
938. 55. Union representatives provided documents signed before a public notary on
939. 8 January 1991 by citizens identifying themselves as farmers and who referred
940. to their union experience vis-à-vis solidarism. The documents denounce
941. coersion and threats for them to join a solidarist association or to renounce
942. their union, dismissals for having been a union member or for having taken
943. part in strikes, the existence of blacklists used at the time of recruitment
944. and various acts of discrimination against trade unionists.
945. 56. In the public sector where solidarism was developing more and more, the
946. union representatives consulted found that structural adjustment policies
947. currently being implemented were being used to include trade union leaders in
948. massive dismissals and were leading to the division or the disappearance of
949. union organisations in that public bodies were being reduced, split up or
950. privatised. They cited the case of the dismissals following the abolition of
951. the school cafeteria programme. Representatives of the Unitary Union of
952. Agriculture and Plantation Workers gave the mission a copy of a document dated
953. 20 February 1991 taken from a cantonal labour office in the Department of
954. Potoci and Suacimo of the Ministry of Labour and Social Security in which the
955. general secretary of that union complained of anti-union discrimination in the
956. experimental diamond station (public sector) on the basis of the following
957. facts: prejudicial transfer of the deputy secretary of the union; the
958. administration's removal of a dining room which was under union
959. responsibility; suspension of leave for union activities; unjustified
960. suspension without salary of several workers who were members of the union;
961. and workers leaving the union because of inducements offered by the foreman.
962. They stated that this took place while the formation of a solidarist
963. association was being encouraged. They also mentioned that in the Costa Rican
964. Railways Institute violations of the collective agreement had taken place,
965. including the dismissal of union leaders. Finally, various representatives of
966. public sector workers feared that the proposed revision of the Civil Service
967. Statute would remove the right to negotiate collective labour agreements.
968. 57. Ministry of Labour officials having many years' experience in labour
969. inspection stated that there had been few complaints of trade union
970. persecution and that where there were no complaints, there was no inspection
971. partly due to the scarcity of human resources. They mentioned, for example, a
972. recent complaint against the Comandos de Vigilancia Civil SA company (noted in
973. a labour inspector's report dated 17 December 1990) and confirmed by a higher
974. decision on 5 April 1991; it was true that the company had appealed this
975. decision. Nevertheless, they knew of a series of anti-union discrimination
976. measures and of incidents of pressure favouring solidarism. Some of these
977. measures were: making employment and promotion subject to membership of a
978. solidarist association; dismissals- but with payments from the compensation
979. fund- particularly in plantations and industrial parks of persons who tried to
980. set up a union; forcing unionists to sign documents of withdrawal from the
981. union; and broadcasting anti-union slogans.
982. 58. According to repeated evidence given to the mission, Costa Rican
983. legislation lacked provisions which could provide adequate protection against
984. anti-union discrimination. Professor Edgar G. Alfaro summarised the legal
985. situation in the following terms: (a) the law allowed free dismissal, without
986. determining the grounds, with a possible payment from the compensation fund
987. (section 80 of the labour code); indeed, on this same issue, a lawyer linked
988. to the John XXIII Social School told the mission that anti-union persecution
989. existed and would always exist while free dismissal was allowed; (b) there was
990. no protection of workers' representatives; (c) according to mainstream
991. jurisprudence, there was no right to reinstatement for arbitrary dismissal not
992. even in the case of dismissal during a collective dispute; (d) there was no
993. criterion for determining the most representative union and there was no
994. recognition of the status to negotiate apart from the union being able to
995. oblige the employer to negotiate if it had as members one third of the workers
996. in the undertaking (in reality, in many companies membership of 100 per cent
997. of the workers was required since the works union could not be formed with
998. less than 20 workers and that 52 per cent of the industrial undertakings
999. employed less than 20 workers and 70 per cent did not have 100); (e) there was
1000. no possibility in practice of negotiating collective agreements by region or
1001. by branch of economic activity; (f) the exercise of the right to strike was
1002. seriously hampered by the requirement of fulfilling a complicated procedure of
1003. court conciliation and required the support of 60 per cent of the workers. In
1004. addition, several of the people interviewed stressed the extremely low amount
1005. of the fines set out in the Labour Code for violation of its provisions,
1006. including those related to freedom of association (between 300 and 1,000
1007. colones).
1008. 59. In 1989, the Minister of Labour agreed with the most representative union
1009. organisations to introduce a decree covering trade union immunity (fuero
1010. sindical), but the draft had not yet been adopted. Some sectors told the
1011. mission that the question of trade union immunity could not be regulated by a
1012. decree, but should be covered by a law; others stressed that in 1989 there had
1013. been procedural errors, especially as regarded the lack of consultation with
1014. the interested parties, particularly employers' organisations, but that the
1015. question could be re-examined now on a better basis.
1016. 60. Some employer representatives told the mission that they were in agreement
1017. with recognition of a type of trade union immunity (although they had
1018. misgivings regarding certain details), as long as the duties of trade union
1019. leaders were also set out. Representatives of the Solidarist Union agreed with
1020. trade union immunity if there was reciprocity for members of executive
1021. councils of solidarist associations; they thought that this would contribute
1022. towards protecting freedom of expression.
1023. 61. In the opinion of various sectors, the Act on Constitutional Jurisdiction
1024. and the new Fourth Chamber of the Supreme Court, having jurisdiction for the
1025. application of constitutional standards and international treaties and
1026. conventions, which prevailed over national legislation, constitute a new and
1027. extremely important element for giving protection to workers against
1028. anti-union discrimination. For example, the Act provided for the exercise of
1029. constitutional protection even of individuals. The Fourth Chamber had started
1030. giving decisions on the application of ratified international labour
1031. conventions and could, according to its President, be seised of individual
1032. appeals against dismissals of an anti-union nature. Nevertheless, in his
1033. opinion, detailed legislation was needed to give better general protection.
1034. 62. The First Vice-President of the Republic recognised that there was a
1035. legislative gap regarding protection against anti-union discrimination and
1036. that it was necessary to fill it and that this was possible. When he was
1037. Minister of Labour he had requested ILO cooperation to amend the Labour Code
1038. in this respect, but the amendment Bill had not been adopted for reasons
1039. linked to the Costa Rican parliamentary system.
1040. 63. The President of the Republic told the mission that he was convinced of
1041. the need to create trade union immunity by law and that he was ready to
1042. prepare the corresponding legislative amendments; he thought he could get
1043. parliamentary support for this. Along the same lines, he stated that the
1044. Assembly was already considering a Bill to repeal sections 333 and 334 of the
1045. Criminal Code which laid down prison sentences for incitement of civil
1046. servants and public employees to abandon their posts (which thus included the
1047. suppression of illegal strikes) and imposed fines on those who abandoned their
1048. posts.
1049. 64. Regarding the possibility of introducing legislative amendments, the
1050. President of the Legislative Assembly who was to take office from 1 May 1991
1051. supplied valuable information to the mission concerning the functioning of the
1052. Assembly. He confirmed that, at the moment, there was no Bill for the
1053. amendment of the Labour Code on the parliamentary agenda despite the fact that
1054. there had been some in the past, for the simple reason that at the end of each
1055. year outstanding Bills were withdrawn from the agenda and, to be reinserted,
1056. the procedures had to be completely recommenced. In addition, in each
1057. constitutional period, there was a complete renewal of the Assembly's members
1058. which led to new questions being asked which had already been dealt with by
1059. the members of the preceding period. Lastly, given the shortness of the
1060. constitutional period (four years) and the annual turnover in the agenda, he
1061. believed that the amendments to the Labour Code should be partial and very
1062. precise if they were to be viable.
1063. V. Other information of interest
1064. 65. Government representatives supplied the mission with various legislative
1065. drafts prepared by the Ministry of Labour and Social Security, including: (1)
1066. the partial revision of the Labour Code with a view to establishing a unified
1067. system of fines expressed in numbers of wage earners and so as to raise to 15
1068. months the ceiling of the compensation fund; (2) revision of the Organic Act
1069. concerning the Ministry of Labour and Social Security so as to make the
1070. conciliation procedure more efficient; (3) the repeal of sections 333 and 334
1071. of the Penal Code which concerned strikes by civil servants and public
1072. employees. The mission was also told of the general thrust of a draft Bill on
1073. workers' participation in the profits of the undertaking.
1074. VI. Conclusions
1075. 66. In summary, and in accordance with the information obtained by the
1076. mission, the following conclusions can be made:
1077. (1)As regards the relations between solidarism and trade unionism, the
1078. solidarist associations whose patrimony was made up of contributions from
1079. workers and from employers in the form of compensation paid into the
1080. termination fund, carried out by law a mutual benefit function in favour of
1081. workers (mutualism). The great majority of persons interviewed, who appeared
1082. to reflect the general feeling of the population, considered that this aspect
1083. of solidarism was worth preserving. Nevertheless, in practice, solidarist
1084. associations could carry out - and in fact did carry out - in many cases quite
1085. varied activities normally reserved to trade union associations. The mission
1086. was given much information from the various people it met with, and was given
1087. voluminous documentation confirming the exercise of labour-related activities
1088. by solidarist associations and organisations, in particular through permanent
1089. committees and labour relations councils. These labour activities resulted in
1090. a signing of a series of direct settlements, particularly in enterprises whose
1091. solidarist associations fell under the John XXIII Social School. These direct
1092. settlements served as collective agreements or substituted for them, thus
1093. contributing in the private sector to the decrease in the number of collective
1094. agreements and to the weakening - or even disappearance - of a large number of
1095. trade union organisations which were deprived by this means of their main
1096. instrument of trade union action. These direct settlements gave less legal
1097. protection than collective agreements and were concluded by an employer and a
1098. group of unionised workers even where a union existed in the undertaking. At
1099. present, the total number of collective agreements in the private sector
1100. amounted to 15 collective agreements.
1101. (2)While it was true that the disappearance of trade union organisations and
1102. the diminishing growth of the trade union movement in the last decade resulted
1103. from the situation described above concerning the inadequate legal protection
1104. against acts of anti-union discrimination, it was also true that the crisis in
1105. the trade union movement was due in a large part to internal reasons as the
1106. mission heard repeatedly from various union representatives and as had been
1107. noted by the ICFTU in its allegations; other sectors referred to past errors
1108. of some trade union organisations and their leaders.
1109. (3)The interference by solidarist associations in trade union activities was
1110. shown to the mission by representatives of the Government, of the academic
1111. world, or by union representatives and employer representatives and at least
1112. by a portion of the solidarist representatives interviewed. In particular, the
1113. President and the First Vice-President of the Republic agreed that, in
1114. practice, solidarism was carrying out trade union functions and that it was
1115. necessary to separate by law their roles. Government authorities gave
1116. assurances that there was a willingness shortly to adopt appropriate
1117. legislative or other types of measures to guarantee the real separation of
1118. functions between unions and solidarist associations.
1119. (4)As regards the treatment of solidarist associations and union organisations
1120. there was no doubt that the law granted a series of advantages to solidarist
1121. associations over unions in certain areas (the minimum number of workers
1122. required, the possibility of engaging in profit-making activities, access to
1123. compensation in cases of justified dismissal, the possibility of managing the
1124. termination funds, etc.). These advantages made their creation and functioning
1125. easier.
1126. (5)As for the alleged anti-union discrimination and the lack of legal
1127. protection against it, the law allowed dismissal without justification if the
1128. corresponding compensation was paid (including cases involving trade union
1129. leaders), and fines for infringement of the provisions of the Labour Code
1130. (including those related to freedom of association) were clearly out of date
1131. because they amounted to between 300 and 1,000 colones (less than US$9). The
1132. mission received evidence from trade unions and from labour authorities that
1133. dismissals and other prejudicial acts based on trade union reasons had taken
1134. place and were continuing to take place (both at the time a union was formed
1135. and when union activities were being carried out, including pressure on
1136. workers to join a solidarist association, to leave a union, or to desist from
1137. union activities). There was insufficient protection in the legislation
1138. against these situations which were particularly marked in the plantations
1139. sector. The creation of the Fourth Chamber (Constitutional) of the Supreme
1140. Court and the Act on Constitutional Jurisdiction were elements of progress for
1141. the exercise of trade union rights in so far as they allowed the full
1142. utilisation of appeals for constitutional protection (amparo) even against
1143. individuals. However, the mission noted wide consensus on the need to
1144. introduce detailed and appropriate legislation regarding trade union immunity
1145. (fuero sindical) which would grant effective protection. The Government, and
1146. in particular the President of the Republic, demonstrated the greatest
1147. willingness towards adopting effective legislation along these lines. The
1148. employers were not opposed to the principle of protection of trade union
1149. leaders (although they had misgivings regarding certain modalities) as long as
1150. the obligations concerning their leadership were laid out. On the other hand,
1151. it had to be noted that there was at present a Bill elaborated by the Ministry
1152. of Labour, which considerably strengthened the fines imposed for infringements
1153. of the Labour Code and which set out a new system, as well as a Bill which was
1154. being considered by the Legislative Assembly to repeal sections 333 and 334 of
1155. the Penal Code which set out criminal sanctions for illegal strikes by civil
1156. servants and public employees.
1157. 67. The main issues raised in the complaint and in the interim conclusions and
1158. recommendations of the Committee on Freedom of Association were thoroughly
1159. examined with the Minister of Labour and Social Security and some of his
1160. direct advisers in an open and very constructive attitude, with a view to
1161. clarifying certain aspects and to exploring various means of action. It
1162. appeared from these conversations that the best thing for efficient and
1163. realistic action would be to envisage a series of measures of various types
1164. which could be adopted and applied progressively in the hope of producing
1165. changes to the questions outlined in the above paragraphs.
1166. 68. The Committee on Freedom of Association took note of the Government's
1167. decision to introduce legislative initiatives with a view to banning direct or
1168. indirect interference by solidarist associations in collective bargaining and
1169. to introducing statutary protection against anti-union discrimination. The
1170. Minister of Labour and Social Security interpreted the words of his own
1171. President and showed his firm intention to act swiftly and efficiently towards
1172. that aim. The most adequate measure would be to explore the possibilities of
1173. ratifying, broadening and clarifying by law the ministerial position, to
1174. refuse direct settlements when a collective agreement was being negotiated,
1175. and to refuse the presence of a permanent committee when a union already
1176. existed in the undertaking. According to the Ministry officials, it might also
1177. be possible to govern by law the formation of permanent committees. In
1178. addition, it was clear from conversations with the President of the
1179. Legislative Assembly (in office as of 1 May 1991) that there was a need to act
1180. with some rapidity by means of brief and viable drafts, given the particular
1181. characteristics of the Legislature. Given the good intentions expressed by the
1182. Government, it was to be hoped that in the institutions or jobs under direct
1183. or indirect government control, the Government would examine the possibility
1184. of implementing immediately in practice decisions to avoid interference of
1185. solidarist associations in activities which were proper to unions and to
1186. guarantee effective protection against acts of anti-union discrimination.
1187. 69. There was wide agreement (Government, trade union organisations and
1188. employer organisations) on the need to abolish the discrimination which
1189. presently existed concerning the termination funds between workers who were
1190. members of a solidarist association and other workers; this could be done
1191. through legislation which extended the advantages contained in the Act on
1192. Solidarist Associations and which would declare access to such funds as a
1193. right of all workers, no matter how their employment relationship had been
1194. terminated.
1195. 70. The Ministry of Labour and Social Security expressed its greatest
1196. willingness to pursue a policy of not registering direct settlements when a
1197. collective agreement was being negotiated and of adopting simple and urgent
1198. administrative procedures - within its jurisdictional competence - to improve
1199. labour inspection activities regarding freedom of association (for example, to
1200. interview trade union leaders during inspection visits) to simplify the
1201. administrative procedures for registering a union and for investigating
1202. complaints of anti-union discrimination, and to inform workers more thoroughly
1203. of their rights regarding this subject in particular.
1204. 71. Lastly, bearing in mind the general principles of the ILO, the mission
1205. considered it was opportune to stress the importance of taking due account in
1206. the legislative or other types of initiatives of the opinions of the trade
1207. union and employer organisations.
1208. 72. In closing this report, I wish to express my great appreciation to the
1209. Director-General of the ILO for the confidence he placed in me in conferring
1210. this delicate task on me. In addition, I wish to express my gratitude to Mr.
1211. Bernard Gernigon and to Mr. Alberto Odero of the Freedom of Association Branch
1212. who accompanied me on this mission for their co-operation and valuable
1213. support, as well as for the most efficient co-operation received from the
1214. senior personnel, the library staff and the administrative staff of the ILO
1215. Office in San José.
1216. Caracas, 6 May 1991. Enrique Marín.
1217. LIST OF PERSONS WITH WHOM MEETINGS WERE HELD
1218. THE EXECUTIVE
1219. - His Excellency, the President of the Republic, Rafael Angel Calderón
1220. Fournier.
1221. - The First Vice-President of the Republic, Germán Serrano Pinto.
1222. - The Minister of Labour and Social Security, Carlos Monge Rodríguez.
1223. - The Vice-Minister of Labour and Social Security, Víctor Morales.
1224. - The National Director and Inspector General of Labour, Rodrigo Valverde.
1225. - The Director of Labour Affairs, Eugenio Solano Calderón.
1226. - The Chief of the Department of Social Organisations, Mrs. Zayda Solano.
1227. - The Chief of the Department of Labour Relations, Alvaro Sojo Mendieta.
1228. - Mr. Bernardo Benavides, legal adviser.
1229. - Mr. Danilo Ugalde, adviser to the Vice-Minister.
1230. - Messrs. Miguel Pizarro, Enrique Rodríguez, Fernando Chacón and Alba Rosa
1231. Ruiz, labour inspectors.
1232. THE LEGISLATURE
1233. - Dr. Miguel Angel Rodríguez Echeverría, Deputy of the Legislative Assembly
1234. (President of the Assembly as from 1 May 1991).
1235. THE JUDICIARY
1236. - Dr. Alejandro Rodríguez Vega, President of the Fourth Chamber
1237. (Constitutional) of the Supreme Court.
1238. - Drs. Orlando Aguirre, José Luis Arce, Alvaro Fernández, Jorge Rojas and
1239. Zarela Villanueva, Magistrates of the Second Chamber (Labour) of the Supreme
1240. Court.
1241. EMPLOYERS' ORGANISATIONS
1242. Costa Rican Union of Chambers of Commerce and Private Enterprise Associations
1243. (UCCAEP)
1244. - Jorge Amador Sánchez (Chamber of Industries).
1245. - José Vicente Badilla (Chamber of Industries).
1246. - Arnold Hoepcker (Chamber of Commerce).
1247. - Edmundo Gerli (Co-ordinator of Labour Matters).
1248. - Carlo Frittela (Chamber of Commerce).
1249. - José Arturo Montero (Executive Director of UCCAEP).
1250. Chamber of Commerce
1251. - Emilio Bruce Jiménez, President.
1252. Federation of Private Enterprises of Central America and Panama (FEDEPRICAP)
1253. - Carlos Ml. Echeverría, Executive Director (speaking in a personal capacity).
1254. TRADE UNION ORGANISATIONS
1255. Inter-American Regional Organisation of Labour (ORIT)
1256. - Mr. Luis Anderson, General Secretary.
1257. - Mr. Gerardo Castillo, Education Officer.
1258. - Mr. David Mena, Co-ordinator of ORIT for Central America.
1259. Permanent Council of Workers
1260. - Mr. Gilbert Brown Young, General Secretary of the National Confederation of
1261. Workers (CNT).
1262. - Mr. José Joaquín Meléndez, General Secretary of the Authentic Confederation
1263. of Democratic Workers (CATD).
1264. - Mr. Olger Chávez, General Secretary of the Costa Rican Confederation of
1265. Democratic Workers (CCTD).
1266. - Mr. Adalberto Fonseca, General Secretary of the United Confederation of
1267. Workers (CUT).
1268. - Mr. Alvaro Montero Vega, President of the Workers' Confederation of Costa
1269. Rica (CTCR).
1270. - Mr. Daniel Quesada Mora, Director of the CNDC.
1271. - Mr. Jorge Soto Fallas, Deputy General Secretary of the Confederation of
1272. Costa Rican Workers (CTC).
1273. - Mr. Mario Rojas Vilchez, Organisation Secretary of CATD.
1274. - Mr. Luis Pablo Zuñiga Morales, CTCR leader.
1275. - Mr Osman Guadamuz, Finance Secretary of CNT.
1276. - Mr. Luis Fernando Alfaro, CATD lawyer.
1277. - Mr. Jorge Emilio Regidor, CTC and CATD lawyer.
1278. - Mr. Mario A. Blanco, lawyer of the Unitary Workers' Confederation (CUT) and
1279. of the National Association of Public Employees (ANEP).
1280. - Mr. Manuel Hernández, CCTD lawyer.
1281. Authentic Confederation of Democratic Workers (CATD)
1282. - Mr. José Joaquín Meléndez, General Secretary.
1283. - Mr. Siliam Salas, Deputy General Secretary.
1284. - Mr. Mario Rojas Vilchez, Organisation Secretary.
1285. - Mr. Rodrigo Aguilar, Finance Secretary.
1286. - Mrs. María de los Angeles Araya, Minutes Secretary.
1287. - Mrs. Lucrecia Ruiz, Treasurer.
1288. - Mr. Jorge Regidor, adviser.
1289. Costa Rican Confederation of Democratic Workers (CCTD)
1290. - Mr. Olger Chaves, General Secretary.
1291. - Mr. Miguel Calderón, Deputy General Secretary.
1292. - Mr. Alvaro Enrique Hernández, Education Officer.
1293. National Confederation of Workers (CNT)
1294. - Mr. Gilbert Brown Young, General Secretary.
1295. - Mr. Eduardo Irías, President.
1296. - Mr. Osman Guadamuz, Finance Secretary.
1297. - Mr. Félix Solonof, Organisation Secretary.
1298. - Mrs. Ana Isabel Montero, leader.
1299. - Mr. Ernesto Montero, Education Secretary of STICA.
1300. - Mr. Ramiro Hernández, Spokesman for STICA.
1301. United Confederation of Workers (CUT)
1302. - Mr. Adalberto Fonseca, General Secretary.
1303. - Mr. Eliecer Sánchez, trade union leader.
1304. - Mr. Miguel Angel Calderón, General Secretary of FENATI.
1305. Confederation of Costa Rican Workers (CTC)
1306. - Mr. José Joaquín Zuñiga, Deputy General Secretary.
1307. - Mr. Jorge Soto Fallas, Deputy General Secretary.
1308. - Mrs. Vera Violeta Loría, Organisation Secretary.
1309. Workers' Confederation of Costa Rica (CTCR)
1310. - Mr. Oscar Monge, Organisation Secretary.
1311. - Mr. Gerardo Madrigal, Finance Secretary.
1312. - Mr. Luis Pablo Zuñiga, legal adviser.
1313. - Mr. Julio Arias Chacón, Organisation Secretary of SITEP.
1314. National Association of Public Employees (ANEP)
1315. - Mr. Johnny García, General Secretary.
1316. - Mr. Albino Vargas, Deputy Secretary General.
1317. Union of Agricultural Workers of Limón (UTRAL)
1318. - Mr. Osman Guadamuz, Finance Secretary.
1319. - Mr. V. Díaz Mendoza, General Financial Adviser.
1320. National Federation of Workers in Agricultural Plantations (FENTRAP)
1321. - Mr. Ramón Fausto Barrantes, General Secretary.
1322. - Mr. Luis Pablo Zuñiga, member of the Banana Commission.
1323. Industrial Union of Workers in Private Enterprise (SITEP)
1324. - Mr. Luis Angel Serrano, General Secretary.
1325. - Mr. Julio Arias Chacón, Organisation Secretary.
1326. - Mrs. Zayra Alvares Soto, member.
1327. Union of Workers in Agricultural Plantations (SITRAP)
1328. - Mr. Gilbert Bermúdez, member of the Executive Council.
1329. Union of Employees of the Costa Rican Airlines (LACSA)
1330. - Mr. Bayardo Ramírez, Vice-Secretary General.
1331. - Mr. Sergio Alvarez, Finance Secretary.
1332. - Mr. Marco Tulio Alvarado, union adviser.
1333. PROFESSORS OF LABOUR LAW
1334. - Dr. Bernardo van der Laat.
1335. - Dr. Edgar G. Alfaro.
1336. - Dr. Rosa Esmeralda Blanco.
1337. - Dr. Mario A. Blanco.
1338. - Dr. Alberto Umaña.
1339. SOLIDARIST ORGANISATIONS
1340. Costa Rican Solidarist Union
1341. - Mr. Rodrigo Jiménez Vega, Executive Director.
1342. - Mr. Carlos A. Naranjo, Deputy Director.
1343. - Mr. Mario Hernández, Labour Vice-President.
1344. - Mrs. Gabriela Herrán, Secretary.
1345. - Mr. Walter Alpízar, Labour Spokesman.
1346. - Mr. Guillermo Echeverría, Financial Adviser.
1347. - Mr. Hugo F. Arroyo, Labour Financial Adviser.
1348. - Mr. Rosendo E. Azofeifa, Labour Representative.
1349. - Mr. Germán Espinoza, adviser.
1350. John XXIII Social School
1351. - Father Claudio Solano, Director.
1352. - Mr. Julio Rodríguez B., adviser.
1353. - Mr. Roberto Quirós, adviser.
1354. - Mr. Gerardo Jiménez, responsible for qualifications.
1355. - Mr. Oscar Bejarano, legal adviser.
1356. - Mr. Alexis Gómez, legal adviser.
1357. Solidarist Association of LACSA Employees
1358. - Mr. Rafael A. Azofeifa, Manager of the Association.
1359. - Mr. Edwin Céspedes, Treasurer.
1360. OTHER PERSONS MET BY THE MISSION
1361. - Mr. Eric Thompson, former Minister of Labour and Social Security.
1362. - Mr. Gustavo Blanco, Director of the Association "Servicios de Promoción
1363. Social" (ASEPROLA).
1364. - Mr. Mariano Sáenz, representative of ASEPROLA.
1365. - Mr. Comberty Rodríguez, representative of ASEPROLA.
1366. - Mr. Víctor Vega Isaula, representative of ASEPROLA.
1367. - Mr. Antonio Montero, representative of ASEPROLA.