Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 360, Junio 2011

Caso núm. 2746 (Costa Rica) - Fecha de presentación de la queja:: 10-NOV-09 - Cerrado

Allegations: Anti-trade union practices by the employer in order to undermine and destabilize the union and its officials, including the refusal to grant trade union leave and the suspension of funds provided for under the collective agreement; the bringing of criminal charges against the union’s Secretary-General, and the harassment of one of the union’s members

1. 496. The complaint is contained in a communication dated 10 November 2009 from the Banco Popular Employees’ Union (SIBANPO), which presented additional information in a further communication in February 2010.
2. 497. The Government sent its observations in communications dated 24 January and 1 April 2011.
3. 498. 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 complainant’s allegations

1. 499. In its communication dated 10 November 2009, SIBANPO explains that it represents employees of the Banco Popular y de Desarrollo Comunal, a corporate public body that has successively concluded a number of collective labour agreements with the union, the latest of which was signed on 1 December 2008. SIBANPO alleges that, because of its active role in trade union affairs, the union and its leaders have for some time been confronted by a series of arbitrary anti-union and discriminatory measures that have been backed or perpetrated by the employers’ representatives of Banco Popular, including the general manager, in attempts to undermine and destabilize the trade union. These anti-union measures have taken many different forms: persecution of union officials, harassment, arbitrary disciplinary sanctions, unjustified denial of leave to carry out union activities, the bringing of baseless criminal charges against them by higher institutional bodies, unlawful administrative requirements, denial of freedom of expression, etc. Specifically, SIBANPO alleges that its requests for paid trade union leave, as provided for in the collective agreement so that some of its members can assist in training activities and other strictly union activities, have been denied without any ground for doing so (Human Development and Organizational Directorate communications (ref. Nos DDHO-047-2009 of 20 January 2009, DDHO-541-2009 of 16 June 2009, DDHO-432-2009 of 13 May 2009 and DDHO-640-2009 of 14 July 2009), copies of which were attached). In addition, leave requests submitted by members of SIBANPO’s electoral committee have on several occasions been denied, thereby disrupting the work of this extremely important union body (Human Development and Organizational Directorate communications (ref. Nos DDHO-430-2009 of 11 May 2009, DDHO-388-2009 of 29 April 2009 and DDHO-897-2009 of 6 October 2009); a number of leave requests for SIBANPO executives have also been refused (communication ref. No. DDHO-460-2008 of 9 May 2008). Predictably, the employer “justifies” these decisions on the grounds that the Bank’s work would suffer if the requests were granted.
2. 500. SIBANPO further alleges that on 12 June 2008, following the Bank’s internal auditor’s report AG-606-2007 and on instructions from the general manager, the director of the legal department, who is the Bank’s legal representative, lodged criminal charges with the Office of the Public Prosecutor against Ms Oriette Zonta Elizondo, SIBANPO’s Secretary-General, on the grounds that the Bank considered that part of the funds it transferred to SIBANPO in accordance with section 72 of the collective agreement in force were used not for the purposes for which they were intended, i.e. for activities designated as social, cultural and sporting activities for the Bank’s employees, but for activities of interest only to the trade union, which were identified in the report.
3. 501. According to the complainant, the auditor’s report states that part of the funds corresponding to the first advance payment for 2006 were used to finance advisory services that the union claimed were paid out of its own funds, whereas in fact the money was used to pay for the services of an expert to organize a cultural event and to train the workers in subjects of general institutional interest (development banking and projects of direct relevance to the Bank itself). SIBANPO states that, in accordance with section 72 of the collective agreement, the advance was authorized by the general manager himself, who nevertheless gave instructions for charges to be lodged with the Office of the Public Prosecutor (communication ref. No. GGC-1319-2006).
4. 502. The misleading auditor’s report also states that another part of this 2006 advance was used to pay invoices for food, equipment, transport and training services in some of the Bank’s branches and that part of the second advance for the same year was spent on end-of-year activities in several of the Bank’s offices. According to the auditor’s strange criterion, these funds could not be spent on the union’s own activities, even though the activities it organized were for the direct benefit of the Bank’s employees. Here again, the auditor’s assessment is not in keeping with section 72 of the collective agreement.
5. 503. As for the funds that were transferred in 2005, the report claims that part of the money was used to pay for the end-of-year party for the Bank’s employees, which it again claims was a strictly trade union affair. However, the conclusions drawn in the auditor’s report are altogether unacceptable, as there is no doubt that these occasions are social and cultural events whose financing is covered by section 72 of the collective agreement.
6. 504. In conclusion, SIBANPO observes that the criminal charges were eventually restricted to the question of the advisory service – which were training activities – and the 2005 endofyear staff party and were disallowed by the Criminal Court of the Second Judicial Circuit of San José on 7 September 2009.
7. 505. According to SIBANPO, the purpose of all this was to discredit the union and undermine its leaders’ credibility with the employees.
8. 506. On another issue, SIBANPO states that, on 6 July 2007, the Judicial Investigation Body (OIJ) ordered a search of the offices of the internal auditors and of the Bank’s national management board, after criminal charges had been brought by a Costa Rican journalist on the grounds that a person under contract to the Bank had gone to two offices of the Costa Rican Electricity Institute (ICE) with a forged document authorizing the Institute to provide him with information regarding the journalist’s incoming and outgoing telephone calls.
9. 507. The story, which was reported the following day in La Nación, one of the newspapers with the biggest circulation in Costa Rica, caused a national outcry. As the article pointed out, “the internal auditor of Banco Popular, with the authorization of its management board, engaged the services of two private detectives to investigate recent “leaks” to the press.” The article went on to state that one of the detectives, a former agent of the Judicial Police Assault Force, had been convicted of abuse of authority and has been one of the defendants in a case concerning the death of an alleged gangster who died a few hours after being arrested and taken to judicial police headquarters (a copy of La Nación of 7 July 2007 was attached).
10. 508. The article published by La Nación, which was clearly very serious, caused great concern among the staff of Banco Popular, who felt obliged to question the Bank’s national management board about the story. The last paragraph of their communication read as follows:
    • The employees of Banco Popular request, along with its clients, seek clarification of the alleged incidents, which are such as could cause a loss of confidence in the Bank. If any such action had been perpetrated by any other employee, the same auditor’s report would in no uncertain terms have called for an official administrative inquiry into the matter. We therefore believe that the national management board must take appropriate steps, treating everybody on an equal footing irrespective of their position in the Bank, so as to arrive at the truth of the matter and, above all, correct the poor image of the Bank given by the auditor’s recruitment of a private investigation company (a copy of SIBANPO’s communication ref. No. 316-S-2007 was attached.)
11. 509. SIBANPO adds that, following this communication, the Bank’s internal auditor brought criminal charges against the union’s Secretary-General, Ms Oriette Zonta Elizondo, for libel, injury and defamation.
12. 510. The case was brought before the Criminal Court of the First Judicial Circuit of San José, which on 6 October 2008 handed down decision No. 1267 absolving Ms Oriette Zonta Elizondo of any blame and responsibility and citing the right of any union official to express his or her views on a public issue of national interest, and ruled she had not acted incorrectly.
13. 511. An appeal was lodged against the decision, but the appeal was rejected by the Third Chamber of the Supreme Court of Justice on 28 August 2009.
14. 512. Since then, the general manager of Banco Popular has repeatedly demanded that the union return part of the funds that it used in accordance with section 72 of the collective agreement to finance social, cultural and sporting activities (communications ref. Nos GGC-407-2009 of 11 March 2009 and GGC-407-2009 of 24 April 2009). Moreover, the general manager has taken the unilateral decision to suspend the transfer of funds under section 72 for the periods of 2008 and 2009. This has seriously compromised the union’s plans and programmes (communication ref. No. GGC-0640-2009) and is designed to destabilize the union’s finances and disrupt its social, cultural and sporting activities. The management’s demands are altogether unacceptable, for the following reasons:
    • (a) Regarding the demands that the union reimburse funds that have been transferred to it, the Bank’s repeated demands are quite clearly inadmissible as they are based on irregular operational rules that were modified unilaterally without the union being consulted or even informed at any time.
    • (b) Regarding the reimbursement of 3 million colones (CRC), it has been clearly shown that the sum was spent on the professional services of an expert who provided training for the employees of Banco Popular on matters of interest to the Bank (restructuring, draft Development Bank Act). The purpose for which these funds – which at the time had been duly authorized by the general manager himself – were used is altogether in conformity with the rules and regulations laid down in section 72 of the collective agreement.
    • (c) As to the other funds whose reimbursement is being demanded, these were earmarked for activities conducted at the end of 2005 in several of the Bank’s offices. In 2007, funds were transferred at the end of the year to SIBANPO, which it spent on cultural and sporting events, but the administration again decided to change the rules for their use without consulting or even informing the union. In Budget Department communication ref. No. SPR-415-2009, the general manager claims that it was the third time that SIBANPO had had to revise its accounts, but the fact is that, although the union submitted its account before the deadline, the administration changed the rules. Obviously, the union’s invoices did not conform to changes that were introduced subsequently.
15. 513. The general manager’s demands are in any case unfounded, since the purpose for which the transferred funds were used is entirely in accordance with section 72 of the collective agreement and with the invoices that were submitted along with all the relevant documentation.
16. 514. Furthermore, union member Ms Fressy Chavarría Marchena, who until 2009 was the Disputes Secretary of SIBANPO’s Executive Committee, has been a victim of systematic and insidious harassment. She was unjustly sanctioned several times, on one occasion on the basis of evidence that had been obtained illegally by the administration (communication ref. No. DDHO-1062-2006 of 27 June 2006) – namely, details of her Internet access that were divulged by officials responsible for computer security, as stated in a letter to Ms Chavarría dated 1 April 2008. Her work productivity has also been questioned for no valid reason and without any preliminary investigation, and on a number of occasions she has been unjustly denied leave to take part in union activities (communication ref. No. DDHO 0264-2009 of 18 March 2009). Finally, the Director of the Human and Organizational Development Department of Banco Popular ordered the initiation of administrative proceedings against Ms Chavarría on the grounds that on 27 March 2009, while on sick leave, she attended a seminar on “The impact of the financial and economic crisis on companies’ human resources strategies”. Ms Chavarría’s participation in the seminar was financed by SIBANPO as being of interest to the workers and to the union itself. SIBANPO adds that, because of the constant harassment suffered by Ms Chavarría, a complaint was lodged with the Ombudsperson setting out the repeated occasions on which she had been harassed.
17. 515. Finally, the complainant organization states that it is applying to the Committee on Freedom of Association because the senior management of Banco Popular is orchestrating an increasingly intense campaign against SIBANPO and engaging systematically in anti-union practices.
18. 516. In its communication of February 2010, SIBANPO refers to a letter from the general manager dated 22 December 2009 (enclosed) demanding illegally that the union reimburse the sum of CRC10,617,579 for the year 2006, which had been transferred and duly authorized in accordance with section 72 of the collective agreement, This sum was earmarked for training activities organized by SIBANPO and for end-of-year social activities in which all the Bank’s employees took part whether or not they were union members. SIBANPO again draws attention to the Bank’s persistent attempts to force the union to reimburse funds which had been rightly transferred to it under the collective agreement and which had been duly authorized by the general management, completely disregarding the fact that the criminal courts have already ruled once and for all that the union had not acted improperly.

B. The Government’s reply

1. 517. In its communications dated 24 January and 1 April 2011, the Government summarizes the principal allegations made by the complainant organization, as follows: (a) the trade union has been the target of arbitrary anti-union and discriminatory measures promoted or carried out by representatives of the employer organization, the Banco Popular; (b) unjustified denial or restriction of paid union leave for officials and members of other bodies of the union; (c) lodging of criminal charges against the union’s Secretary-General in connection with the administration of union funds; (d) criminal charges against the union Secretary-General for libel, injury and defamation; and (e) arbitrary administrative orders by management with the aim of destabilizing the union financially and undermining the union’s social, cultural and sports programmes.
2. 518. The Government indicates that it communicated a copy of the complaint to the general manager of the Banco Popular y de Desarollo Comunal to enable it to address the allegations, which it did through a detailed report (sent with the Government’s reply), and emphasizes that the law provides for transparency in the public service, underpinned by provisions for establishing, operating, maintaining, developing and assessing internal monitoring systems, in accordance with Act No. 8292.
3. 519. With regard to the alleged arbitrary measures of an anti-union and discriminatory character, promoted or carried out by management representatives of the Bank, the complainant organization does not give any specific information that might be indicative of such arbitrary measures, and it is therefore difficult to address vague and unfounded claims. At any event, the management emphasizes that it acknowledges the protection provided by the law to all workers against any harmful act including dismissal. Similarly, the Constitutional Court acknowledges the right of employers to reorganize their companies and cut costs in order to achieve economic stability, which is in accordance with the constitutional right to engage in free trade, provided that the fundamental rights and liberties of citizens are not infringed. It is thus important to ensure a balance between those two areas of constitutional rights.
4. 520. With regard to the alleged denial and/or restriction of paid union leave for officials and members of other union bodies, the Government states that according to the Bank’s report of 6 September 2010, paid trade union leave both for union officials and for rank and rank file members is governed by clauses 63–66 and 70 and 71 of the collective agreement in force in the Banco Popular. In that regard, the Bank’s management states that it has not granted 100 per cent of the union leave that has been claimed, but that it cannot be claimed that the aim was to undermine the functioning of the union. The Bank’s management indicates in its report that when such leave has been refused, the decision was justified by the necessity of ensuring, in specific circumstances, the effective functioning of the public service intended to benefit citizens in accordance with ILO Convention No. 135, according to which “The granting of such facilities shall not impair the efficient operation of the undertaking concerned.” The percentage of union leave applications actually granted is as follows:
   • Result of application / Worker hours / Percentage
   • Leave granted / 808.5 / 89.10
   • Leave not granted / 84 / 9.25
   • Applications not processed / 15 / 1.65
   • Total / 907.5 / 100.00
5. 521. Consequently, taking into consideration the fact that leave applications not processed are those that are not granted because the official in question is on holiday and/or on sick leave, or the officials concerned are non-union members or indicate a wish not to participate, in only 9.25 per cent of the applications processed was leave refused, and in every case for work-related rather than anti-union reasons.
6. 522. As regards the allegation that the internal audit report of the Bank is biased and wishes to discredit the union and undermine its credibility with its members, the Government states that Costa Rica is a State based on the rule of law, whose civil servants are governed by public laws and regulations and by the principles of probity, respect and adherence to the law. In that regard, the Bank’s management states that: “... it is this framework that should guide the actions of the Bank’s management, the General Auditor, the Legal Affairs Director, and the Secretary-General of the complainant union”. It adds that there is an overriding obligation to report acts that are contrary to the sound administration of public funds and that the internal audit contested by the complainant was produced in that legal context.
7. 523. Giving further details, and referring to the auditor’s report, the Bank’s management in its report states that:
   • It is not relevant here whether or not the funds available to the union under section 72 of the collective agreement were properly administered.
   • What must be considered here is whether or not, once the Bank’s General Auditor had established that they were not being administered properly, the criminal charges brought by the Bank constitute an infringement of freedom of association because their purpose, as the complaint has claimed, was to “discredit the union and cause it to lose credibility among the workers [...]”. The internal auditors of the State banks, like those of the Banco Popular, are sufficiently independent, even within the Bank’s own management structure, to ensure that in order to remove them, the approval of the Comptroller General of the Republic is required. That is intended to ensure that they have sufficient autonomy to be able to investigate issues such as the administration of public funds even if administered by their own employer. The General Internal Inspection Act No. 8292 of 31 June 1992 provides that: “Section 25. Independence in respect of function and judgement: Officials of the Internal Audit Office shall carry out their functions in full independence in respect of their functions and judgements in relation to the management hierarchy and to other bodies of the administration”.
   • It follows that in the event that the general manager of the institution in question does not concur with the report, he or she is not free to refuse to implement it, to order it to be shelved, or to seek changes to it, other than by the procedures established by the Law itself.
8. 524. The management of the Bank acknowledges, on the other hand, that according to section 72 of the collective agreement in force, the Bank is required to allocate 0.10 per cent of the annual budget allowed for expenditure on staff services to the development of social, cultural and sports programmes for all workers; for that purpose public funds are made available to the union to allow it to organize events in accordance with the collective agreement. At the time of the events in question, however, the internal auditor’s report drew attention to certain irregularities on the part of the Secretary-General of SIBANPO in connection with the administration of the public funds in question, on the grounds that approval had been given for the use of public funds remitted under the terms of section 72 of the collective agreement in order to cover costs arising from the union’s own activities.
9. 525. In the light of the recommendations made in the internal audit, and in order to allow the appropriate investigation to be carried out with regard to the accounting and monitoring of the administration of public funds, the Bank’s management lodged a formal criminal complaint with the prosecution service against that union’s Secretary-General on 12 June 2008. Subsequently, on 7 September 2009, the Criminal Court of the Second Judicial Circuit of San José, set aside the complaint on the grounds that there was insufficient evidence of any irregularities in the facts referred to by the Bank’s auditor.
10. 526. It is clearly the case that the union officials, like any other citizen, must enjoy the presumption of innocence, and must be ensured due process of law and be judged with the minimum delay by an impartial and independent judicial authority. This has been made clear by the Committee on Freedom of Association.
11. 527. However, the Committee has also indicated that it behoves the Government to show that the measures it has adopted are not motivated by the union’s activities. The Committee has also stated that union office does not confer legal immunity or other such privileges.
12. 528. All the above requirements were respected by the Bank’s management, as the Secretary-General was not denied the rights and guarantees due to her in a criminal case or those covered by the constitutional principle of due process; it is therefore not possible to conclude that there was any violation or infringement of freedom of association.
13. 529. The allegations made by the union are thus inaccurate in claiming that the Secretary-General’s trade union rights and freedoms were infringed, since the facts must be seen in context, not in isolation and without taking into account the background and various indicators which appeared to warrant objective investigation by a court of law as an independent body.
14. 530. As regards the events of 6 July 2007 in the offices of the internal auditor and the board of directors of the Bank, and the criminal charges brought against the Secretary-General of SIBANPO by another Bank employee, the Government states that, according to the general management, the disputes in question are such as would not be welcome to any company or institution, but that they do not come under the managerial remit of the employer. Freedom of opinion and expression are inherent aspects of freedom of association. Those rights must not, however, be regarded as absolute and unlimited. The Committee on Freedom of Association has stated that:
    • The full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. Nevertheless, in expressing their opinions, trade union organizations should respect the limits of propriety and refrain from the use of insulting language.
15. 531. In the judgement of the Bank, in a case like this one, the employer could not exercise any form of control on information prior to its dissemination, but can do so once it has been made available.
16. 532. It should also be noted that the management of the Bank, in its report, drew attention to the fact that the person in this case who initiated the judicial proceedings was another worker, a colleague of the union’s Secretary-General, rather than the management. From that perspective, it cannot be regarded as a violation of freedom of association, as the worker was seeking redress for what he considered to be an attack on his honour under the terms of national criminal law.
17. 533. With regard to the specific aspects of this case, the Bank’s management state that: “... in cases of protest demonstrations in the context of labour relations, it is essential to strike the appropriate balance between the right of workers to act freely in defence of their own ideas and opinions, and the mandatory respect, among other things, that is due to the dignity and honour of persons at the workplace”.
18. 534. To date, as the union has indicated in its complaint, a ruling has been given in these proceedings to the effect that the charges were unfounded and the procedure complied with the applicable constitutional and legal rules.
19. 535. As regards the reimbursement of certain sums transferred under section 72 of the collective agreement for the period 2008–09, the Government notes that the Bank’s management in its report stated that SIBANPO was asked to reimburse the funds, a decision based on recommendations made by the Bank’s internal audit office which must be implemented once endorsed by the director.
20. 536. In the same vein, the report in question warns the general management of the Bank that: “unjustified failure to honour internal monitoring obligations by the director and subordinate managers and staff carries administrative liability under the terms of section 39 of the General Internal Audit Act”.
21. 537. According to section 39 of the Act in question, managers, subordinate staff and other public officials incur administrative liability if through their actions or omissions they undermine the internal auditing system or fail to take appropriate action to establish, maintain, improve and assess such a system in accordance with the applicable technical regulations.
22. 538. Similarly, the Act in question stipulates that managers and subordinate staff also incur administrative and civil liability if they obstruct or delay the auditor, deputy auditor and other internal audit office staff in carrying out their tasks,
23. 539. It follows from the above that, although the report contains recommendations, if the director of the Bank deems them to be consistent with the Bank’s own rules and such as to allow the Bank to operate in a financially efficient manner, they must be implemented in accordance with the General Internal Audit Act No. 8292.
24. 540. Consequently, the actions of the Bank’s general management were consistent with its obligations, given that the director and other officials are obliged, as public officials, to ensure that public funds are properly administered. That in no way constitutes unfair or discriminatory labour practice by the Bank’s management, as the complainant organization claims.
25. 541. In any event, the Government is clear about the need to punish anti-union practices and does not hesitate to apply the full rigour of the law in cases where such acts can be shown to have occurred.
26. 542. The Government is working on improvements in national legislation in order to safeguard, to a greater extent, respect for the rights of unionized workers, in accordance with the constitutional guarantees of due process and legitimate defence, as has been indicated in its reports submitted in reply to questions regarding Cases Nos 2490 and 2518 that have been before the Committee.
27. 543. As regards the alleged acts of discrimination against members of SIBANPO’s Executive Committee by the management of the Bank, the Government states that the union presenting the complaint refers, in general terms, to discrimination by the Bank against members of its Executive Committee, especially in the specific case of the Secretary-General, Ms Oriette Zonta Elizondo, on the grounds referred to in previous paragraphs, and in the case of the union’s Disputes Secretary, Ms Fressy Chavarría Marchena.
28. 544. As regards the latter case, the Bank’s general management states that the official in question is the subject of a disciplinary investigation because of her attendance at a training seminar under the heading: “The impact of the financial and economic crisis on human resources strategies in companies”, although she was unable to work at the time for health reasons. Nevertheless, in accordance with the views of the Bank’s general management and for the sake of presenting evidence suggesting a misrepresentation of the facts, some of the management’s statements are set out below.
    • Firstly, although no one can question the fact that freedom of association is a fundamental right, it is not absolute but subject to certain limits.
    • When the conduct of a trade union representative or member goes beyond what is indispensible to that fundamental right, he or she cannot be protected and consequently must accept the disciplinary liability that may ensue from that conduct.
    • This is the case that concerns us here. Ms Chavarría Marchena requested union leave on 10 March 2009 to attend a training course in her area of activity but was informed on 18 March by her superiors that leave was not granted because she was required to finish some prior work. Following a further request, explanations were given of the work-related reasons for the refusal. On 26 March, Ms Chavarría reported being incapacitated for health reasons as of that day, and until 2 April, and on 27 March she attended the training course for which she had requested leave.
    • Given these facts, a minimum of reasoning ability would suggested that further scrutiny was warranted in order to corroborate the truth or otherwise of the reported incapacity. Even if her health were known to be poor, the compatibility of the latter with her attendance at the course would be questionable. The Bank decided to report what had happened to the preliminary commission to enable it to ascertain whether or not there was sufficient evidence to justify disciplinary proceedings. The preliminary commission is an internal bipartite body created under the collective agreement concluded with the complainant organization and has the mandate, as its title suggests, of carrying out preliminary investigations into reports of contraventions of labour agreements and standards with a view to determining whether there is insufficient evidence to justify disciplinary proceedings against a Bank employee. Once the commission had been briefed on the case at an ordinary session No. 20-2009 on 17 June 2009, its members decided unanimously to order the establishment of a steering body for proceedings against Ms Chavarría Marchena. The unanimous decision was thus also supported by the vote of the SIBANPO representative, that is, Ms Chavarría’s own trade union colleague, who was the nominated representative of the complainant organization’s Secretary-General. That the complainant union should accuse its own representative of an anti-union act is absurd.
    • In addition, on 23 July this year, the Steering Body for the Administrative Proceedings set a date by which Ms Chavarría could submit such evidence as she might consider appropriate for her defence, and she also had the right to attend the hearing accompanied by a union representative. Until such time as the proceedings are concluded, it will not be possible to know with certainty whether there was any misconduct or what the appropriate sanction, if any, would be, but the procedure adopted for the investigation is governed by the General Law on Public Administration, which guarantees citizens due process and the constitutional right of defence.
    • The same procedure applied with regard to the warning issued to Ms Chavarría for reportedly accessing Internet sites unrelated to her work; as was reported in official communication No. DDHO-393-2009 dated 30 April 2009, when the report was received from the Bank’s Information Technology Department, she was given the opportunity to formulate her defence after the contents of the report referring to her had been passed on, the evidence was examined, and finally the appropriate sanction was imposed, as is the case with any other employee of the Bank who commits the same offence.
    • It is generally understood that with banks, IT security is far more delicate and requires more stringent preventive checks than are considered usual in other forms of economic activity.
29. 545. The Government concludes by stating that it has been shown that the actions of the management of the Bank and its board of directors was in no way motivated by anti-union considerations, and indeed was based on the recommendations made by the internal audit office, and the administrative and judicial procedures followed under the relevant constitutional and legal provisions. All this, in the view of the general management, was aimed at achieving better internal functioning and more appropriate management of public funds.
30. 546. In the light of the substantive and legal reasoning set out above, the Government requests that the Committee on Freedom of Association reject the complaint of SIBANPO, given that the actions of the management representatives of the Bank are consistent with the principles of law that prevail in Costa Rica and with the principles and rights ensuing from freedom of association and that the measures taken were not motivated by anti-union reasons.

C. The Committee’s conclusions

1. 547. The Committee observes that in this case the complainant organization alleges that Banco Popular y de Desarrollo Comunal (BPDC), which is a public entity, has been conducting a campaign to undermine and destabilize SIBANPO and its leaders by means of a series of anti-union acts. The Committee observes that many of the alleged incidents have been submitted to the judicial authorities and that the criminal charges brought against the union’s leaders have been dismissed, namely: (1) a criminal charge against the Secretary-General alleging the use of funds transferred to the union by the Bank for purposes other than those provided for in the collective agreement – rejected by decision of the judicial authority on 7 September 2009; and (2) a criminal charge brought by the Bank’s representatives against the same union leader for libel, injury and defamation – dismissed by the judicial authority in its ruling of 6 October 2008, and again on appeal on 28 August 2009, on the grounds that she was exercising her right as a union leader to express her views on a public matter implicating the Bank. As regards point (1), the Committee notes the statements made by the Bank’s general management to the effect that the criminal charge against the union’s Secretary-General was made when the internal audit office found evidence of apparent irregularities perpetrated by the union official in the use of the public funds in question, which had been transferred under section 72 of the collective agreement; unjustified failure to meet the obligations in respect of internal auditing is a matter of administrative responsibility for the employer under the terms of the General Internal Audit Act; the resulting complaint thus has no anti-union objective and was not upheld by the judicial authority. As regards the charge against the same union official for libel, injury and defamation, the Committee notes that according to the Bank’s management, the charge was made by a colleague of the official in question in an attempt to obtain redress for what he considered to be an attack on his honour, and not by the Bank’s management, which has confirmed that the charge was rejected by the judicial authority. Taking into account the judicial rulings which did not uphold the two criminal charges in question, the Committee will not pursue its examination of these allegations.
2. 548. The Committee also notes that the complainant alleges that: (1) between March and April 2009, the Bank demanded the reimbursement of funds that had been transferred to the union to finance social, cultural and sporting activities under the collective agreement; and (2) the Bank decided unilaterally to suspend the transfer of funds scheduled under the collective agreement for the periods of 2008 and 2009. The Committee notes that, according to the Bank’s management, the reimbursement of these sums by the union was demanded by the Bank as a result of enforceable recommendations made by the internal audit office, and did not constitute discriminatory or unfair practice.
3. 549. In its latest communication of February 2010, the complainant alleges that the Bank is also demanding repayment of CRC10,617,579 for 2006, an amount which was likewise transferred to the union in accordance with the collective agreement and which SIBANPO states was spent on training activities organized by the union and on social activities in which all the Bank’s employees took part, whether or not they were union members. The complainant notes that this latter demand totally disregards the decision of the judicial authority on 7 September 2009 rejecting a previous complaint by the Bank against the union’s Secretary-General for the same reason.
4. 550. The Committee wishes to point out that, although collective agreements are mandatory, it is not in a position to determine whether each of the payments made by a trade union from funds transferred to it by an employer for training or for social and cultural activities conformed to the rules laid down in the collective agreement. Moreover, the Committee believes that, the constant resort to the courts to resolve disputes between the union and the Bank deriving from the lodging of criminal charges – even though the charges against the union were dismissed – has deteriorated relations between the parties concerned, because of the length of the judicial proceedings (two years), and has hampered the normal exercise of trade union rights. The Committee suggests that the complainant organization and the Bank consider the possibility of setting up a joint committee under the collective agreement to verify periodically the legality of the activities financed by funds whose management the collective agreement assigns to the trade union. The Committee requests the Government to pass on this recommendation to the complainant trade union and to the Bank and to keep it informed of any development in this regard.
5. 551. Regarding the Bank’s alleged refusal without reason to allow members of the complainant organization to take paid union leave, in violation of the terms of the collective agreement, the Committee notes that, according to SIBANPO, several of its members have been denied leave to carry out training and other activities and that its officials and the members of its electoral committee have likewise been refused leave. The Committee notes that, according to the Bank’s management, 89.10 per cent of leave requests were granted, and refusals were justified on work-related grounds rather than being for any anti-union motives. The Committee emphasizes in this regard that it is not in a position to verify whether or not in each specific case the Bank’s refusal to grant trade union leave conformed to the terms of the collective agreement. Consequently, the Committee suggests that disputes over trade union leave provided for in the collective agreement be submitted to a joint committee, which could be presided over by an independent personality so as to ensure that SIBANPO can in practice use its right to union leave under the collective agreement without prejudice to the smooth running of the Bank. The Committee requests the Government to pass on this recommendation to the trade union and to the Bank and to keep it informed of developments.
6. 552. Regarding the allegations concerning Ms Fressy Chavarría Marchena, until recently SIBANPO’s Disputes Secretary, the Committee notes that Ms Chavarría has allegedly been the victim of constant harassment at work: questions of her work productivity, denial of leave, several administrative sanctions – including on one occasion on the basis of evidence obtained illegally by the management – and initiation of disciplinary proceedings for attending a SIBANPO seminar on the impact of the financial crisis while on sick leave, even though her attendance was funded by the union. The Committee notes the Government’s statement to the effect that, according to the management of the Bank, the trade union leave requested on 10 March 2009 for the purpose of attending a training course in the worker’s area of competence could not be granted because the worker in question had to complete some prior work. Subsequently, according to the Bank, she reported sick, but on the following day attended the training course, and administrative proceedings against her were therefore initiated by a unanimous decision of an internal tripartite commission which included a vote in favour of that measure by the representative of the complainant organization, who had been nominated by the union official. The Committee requests the Government to keep it informed of the outcome of the aforementioned administrative proceedings. The Committee also notes that, according to the Bank’s management, the trade union official in question was given a warning in the context of a procedure which respected the right of defence and had been instituted because the individual concerned had accessed Internet sites unrelated to her work.
7. 553. In general terms, the Committee notes that this case refers to a substantial number of disputes between the Bank and the trade union. The Committee trusts that both parties will make an effort to improve the climate of their labour relations and will in the very near future establish the dispute settlement mechanisms suggested in the conclusions outlined above.

The Committee's recommendations

1. 554. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee suggests that the complainant organization and the Bank consider the possibility of setting up a joint committee under the collective agreement to verify periodically the legality of the activities financed by funds whose management the collective agreement assigns to the trade union. The Committee requests the Government to pass on this recommendation to the complainant trade union and to the Bank and to keep it informed of any developments in this respect.
   • (b) The Committee suggests that disputes over trade union leave provided for in the collective agreement also be submitted to the joint committee referred to in the preceding paragraph, whose chairperson could be an independent personality so as to ensure that SIBANPO can in practice exercise its right to union leave under the collective agreement without prejudice to the smooth running of the Bank. The Committee requests the Government to pass on this recommendation to the trade union and to the Bank and to keep it informed of developments in this respect.
   • (c) The Committee requests the Government to keep it informed of the outcome of the administrative proceedings against the Disputes Secretary of the complainant organization.
   • (d) In general terms, the Committee notes that this case refers to a considerable number of disputes between the Bank and the trade union. The Committee trusts that both parties will make an effort to improve the climate of their labour relations and will in the very near future establish the disputes settlement machinery suggested in the recommendations above.