Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 156) sur les travailleurs ayant des responsabilités familiales, 1981 - Costa Rica (Ratification: 2019)

The Committee notes the Government’s first report.

Article 2 of the Convention. Application to all categories of workers. The Committee notes the Government’s indication, in its report, that the measures giving effect to the Convention apply to all branches of economic activity and all categories of workers. It notes that the measures provided in the area of family responsibilities by the Labour Code apply to all employees in the private and public sectors (section 14 of the Code). Furthermore, persons employed in the public administration sector will also benefit from the provisions of the Public Employment Framework Law No. 10159 of 7 March 2022 that will enter into force in March 2023. However, the Committee observes that the Labour Code only applies to workers in a contractual employment relationship (section 4 of the Code). The Committee therefore requests the Government to indicate the measures taken to ensure that workers who are not in a contractual employment relationship, such as self-employed, benefit from the measures concerning workers with family responsibilities.

Article 3. National policy. The Committee notes that section 404 of the Labour Code and section 1 of Law No. 2694 prohibiting discrimination at work, of 22 November 1960, prohibit discrimination on the ground of sex in employment and occupation. It welcomes the Government’s indication that, in a decision handed down in 2020, a copy of which has been forwarded by the Government, the High Court considered that family responsibilities cannot be a ground for discrimination at work (Resolution No. 01767-2020 of 23 September 2020). The Committee notes that the National Policy for Effective Gender Equality (PIEG) for 2018-2030, and its action plan for 2019-2021, acknowledge the persistent gender stereotypes and unequal participation of men and women in unpaid domestic work, including family responsibilities. In that regard, it notes that several measures in the action plan aim at promoting at the workplace gender equality and shared caring responsibilities, including through awareness-raising and training activities. In that regard, the Committee notes that Law No. 9862 for the conciliation of work and family life, of 19 June 2020, provides that the Government shall elaborate a public policy and implement measures aimed at promoting a better conciliation between work and family responsibilities, as well as “family co-responsibility”. The competent authorities shall publish an annual report on the progress made and the concrete measures implemented to that end (section 3(c) of Law No. 9862). The Committee requests the Government to provide information on the concrete measures implemented, in particular in the framework of the National Policy for Effective Gender Equality (PIEG) for 2018-2030 and its action plans, and Law No. 9862 for the reconciliation of work and family life, in order to assist men and women workers in better reconciliating work and family responsibilities and promote the sharing of family responsibilities between men and women. It further requests the Government to provide information on the results achieved by such measures, including by providing a copy of the annual reports published pursuant to Law No.9862. Finally, the Committee requests the Government to provide information on any measures envisaged in order to consider including in its national policy or legislation a provision formally prohibiting discrimination in employment and occupation based on family responsibilities, in the same vein as discrimination based on sex.

Article 4. Leave entitlements. The Committee notes that the Labour Code provides for several paid leaves related to maternity and adoption (sections 94 and 95 of the Code). It notes with interest the adoption of: (1) Law No. 10211 to combat discrimination at work against mothers, of 3 June 2022 which introduces in the Labour Code the obligation for employers to grant an eight-day paternity leave (section 95(b) of the Code); and (2) Public Employment Framework Law No. 10159 of 7 March 2022 which extends the duration of maternity leave by two months under specific circumstances, and of paternity leave up to one month (sections 41 and 42 of the Law). The Committee further notes that several provisions in the national legislation provide for the possibility of workers to benefit from paid hours in case of medical appointments for children, cohabiting partners or persons who need special assistance. Furthermore, workers can benefit from a specific leave entitlement or a reduction of their working day in order to care and assist seriously ill minors or terminally ill family members, whether by blood or affinity, as well as, in the public sector, persons with disabilities or seriously injured after an accident (sections 1 to 4 of Law No. 7756 on benefits for those responsible for patients in the terminal phase of life and seriously ill minors; and sections 39 and 40 of Law No. 10159). While welcoming the wide definition of “family members”, the Committee however observes that leave entitlements for workers with family responsibilities are essentially focused on their dependent children. As regards flexible working arrangements, the Committee notes that Law No. 9738 of 18 September 2019 provides that remote work should be promoted, including as a priority for workers with family responsibilities. The Committee requests the Government to provide statistical information, disaggregated by sex, on the number of workers who avail themselves of the above-mentioned schemes relating to leave and reductions in the working day. It also requests the Government to indicate whether measures exist that take into account the needs of men and women workers who have responsibilities in relation to other members of their immediate family, particularly older persons, in terms of conditions of employment and social security.

Article 5. Childcare and family services and facilities. The Committee notes the detailed information provided by the Government on the National Network for Child Care and Development (REDCUDI), for children up to 12 years old, aimed at facilitating the insertion of fathers and mothers into vocational training and the labour market. This network is composed of several public and private facilities established at national and local levels, including in rural areas, to provide protection and care to children whose parents are working in the agriculture sector, including through the “Casas de la Alegría” established in collaboration with the UNICEF. The Committee notes with interest that such facilities also provide childcare services during weekends and at night in order to better assist workers with family responsibilities. As regards other members of the immediate family, the Committee notes that support and assistance to persons with disabilities and elderly persons is provided through the National Council for Persons with Disabilities (CONAPDIS) and the National Council for the Elderly (CONAPAM) while the number of beneficiaries remains limited. In that regard, the Committee observes that, as highlighted in the framework of the Action Plan for 2019-2022 for the implementation of the PIEG, care and assistance services provided to children and other dependent persons are specifically aimed at persons in a situation of poverty or extreme poverty. It notes that the Action Plan for 2019-2022 together with the National Care Policy for 2021-2031 are aiming at implementing a national care system through the expansion and diversification of care and education services for children as well as other dependent persons, such as persons with disabilities and the elderly, under a social co-responsibility approach in order to enable caregivers, and more particularly women, to integrate the labour market. The Committee requests the Government to provide information on the measures taken, in particular in the framework of the National Policy for Effective Gender Equality (PIEG) for 2018-2030 and its action plans, and the National Care Policy for 2021-2031, to provide adequate childcare and family services and facilities. It further requests the Government to provide information on the progress made in extending coverage of care services and facilities for children, in particular from 0 to 3 years of age, and other dependent members of the family, as well as the results achieved thereof, including by providing updated statistical information on the availability and accessibility of affordable facilities for childcare and for family services.

Article 6. Information and awareness raising. The Committee notes with interest the adoption of Law No. 9862 for the reconciliation of work and family life which provides that the Government will elaborate and implement awareness-raising and training activities, including in the various educational centres, in order to enhance better reconciliation between work and family responsibilities as well as “family co-responsibility” between men and women. It further notes that the law set a National Day for reconciliation of work and family life (sections 1 and 3 of the Law). The Committee notes the Government’s indication that several activities have been carried out by the National Women’s Institute (INAMU), in particular in the framework of the PIEG 2018-2030, to raise awareness about gender stereotypes regarding the role of women as caregivers and promote the concept of shared family responsibilities between men and women. The Committee requests the Government to provide information on specific actions implemented with a view to promoting greater awareness, public understanding and a climate conducive to overcoming existing difficulties for men and women workers with family responsibilities, as well as results achieved by such actions.

Article 7. Vocational training and guidance. The Committee notes that: (1) the Ministry of Labour and Social Security is responsible for the elaboration and implementation of policies and actions aimed at promoting the inclusion of mothers and fathers into the labour market; and (2) the Joint Social Assistance Fund (IMAS) shall also implement programmes to assist mothers and fathers to establish micro-enterprises (section 31 of Child and Adolescent Rights Code and section 20 of Law No.9220 establishing the National Network for Child Care and Development of 24 March 2014). It further notes the Government’s statement that several measures were implemented to enhance women’s access to the labour market, including in collaboration with the private sector. The Government however adds that no measures have been implemented so far in order to provide vocational guidance and training specifically to workers with family responsibilities in general, but that information will be provided in that respect in future reports. The Committee therefore requests the Government to provide information on the vocational guidance and training measures taken or envisaged to enable men and women workers with family responsibilities to become and remain integrated into the labour force, as well as to re-enter the labour force after an absence due to family responsibilities, in relation to their dependent children and other members of their immediate family. It also requests the Government to provide information on the number of men and women workers with family responsibilities who participated in vocational guidance and training programmes.

Article 8. Protection against dismissal. The Committee notes the Government’s indication that “family responsibilities” is excluded from the list of valid reasons for which an employer may terminate an employment contract, provided for under section 81 of the Labour Code. The Committee further notes that the Labour Code: (1) prohibits dismissal on the ground of sex (sections 404 and 406); and (2) provides for special protection against dismissal of pregnant or nursing women and workers who are benefiting from a maternity, paternity or adoption leave (section 94). Furthermore, in cases where the employer may want to dismiss a women worker for alleged serious misconduct, they must first prove there has been serious misconduct before the National Labour Inspectorate (DNI). In cases of unfair dismissal against a pregnant or a nursing worker, such worker can ask for reinstatement or condemnation of the employer for termination without a valid reasons (section 94 and 94 bis of the Labour Code). However, the Committee observes that this provision only applies to women workers. It further notes that, according to the above-mentioned decision handed down by the Supreme Court in 2020 (Resolution No. 01767-2020 of 23 September 2020), absence from work as a result of medical appointments for children cannot be considered as a valid reason for termination. The Committee requests the Government to provide information on the implementation of sections 94, 94 bis, 404 and 406 of the Labour Code in practice, including by providing information on any court or administrative decision and any investigation conducted by the labour inspectorate in relation to the dismissal of workers on grounds of family responsibilities. In that regard, it requests the Government to indicate any measures envisaged to extend the protection provided under sections 94 and 94 bis to male workers with family responsibilities. The Committee further requests the Government to provide information on the manner in which protection against dismissal is ensured, both in law and practice, to workers with family responsibilities in relation to immediate family members other than dependent children.

Article 9. The Committee welcomes the detailed information provided by the Government on the provisions contained in several collective agreements adopted in the public sector in the area of family responsibilities. The Government also refers to good practices identified in this area in several companies of the private sector. The Committee requests the Government to continue to provide information on the provisions of any collective agreements and work rules, adopted both in the public and private sectors, in order to assist workers in reconciling their work and family responsibilities in relation to their dependent children, as well as other members of their immediate family.

Article 11. Cooperation with employers’ and workers’ organizations. The Committee notes the Government’s indication that participation of employers’ and workers’ organisations is ensured through different mechanisms and consultation processes established at national and enterprise levels. The Committee requests the Government to provide information on the specific measures taken to promote social dialogue and tripartite cooperation in order to strengthen the laws, measures and policies giving effect to the Convention, and on the manner in which workers 'and employers' organizations have exercised their right to participate in the design and implementation of such measures, including through collective bargaining and the adoption and implementation of workplace policies on work and family reconciliation.

Enforcement. The Committee notes the Government’s indication that supervision of the application of regulations concerning labour relations is conducted by the National Labour Inspectorate (DNI) under the Ministry of Labour and Social Security (MTSS). It further notes that, in order to protect their rights, workers with family responsibilities can also enlist assistance from the Ombudsman’s Office (Defensoría de los Habitantes de Costa Rica) and from the Women’s Ombudsman (Defensoría de la Mujer), as well as the competent courts. In that regard, the Committee welcomes the copy of judicial decisions forwarded by the Government. The Committee requests the Government to provide information on legislation enforcement activities to give effect to the Convention, particularly labour inspection, and any judicial or administrative decisions relating to the application of the Convention. It also requests the Government to provide statistical data disaggregated by sex, studies, surveys and reports which may enable the Committee to examine how the principle enshrined in the Convention is applied in practice, indicating the obstacles faced and the progress achieved with regard to equality of opportunity and treatment between men and women workers with family responsibilities and between the worker and workers without family responsibilities.

General observation. Regarding the above issues and more generally, the Committee would like to draw the Government’s attention to its general observation on workers with family responsibilities, adopted on 2019. In such observation, the Committee recalls the ILO Centenary Declaration for the Future of Work’s aim to achieve gender equality at work through a transformative agenda and stresses the importance of the Convention in achieving this goal. The Committee calls for member States, and employers’ and workers’ organizations, to strengthen efforts towards: (i) making non-discrimination of workers with family responsibilities and the adoption of measures to facilitate the reconciliation of work and family responsibilities explicit aims of their national policy; (ii) regularly monitoring and assessing the results achieved within the framework of the national policy towards achieving the aims of the Convention with a view to adjusting the measures adopted or envisaged; (iii) launching regular public information campaigns to promote the sharing of family responsibilities and remove misconceptions around care roles; (iv) ensuring that workers with family responsibilities have effective equal opportunities and rights to enter, re-enter and remain integrated in the labour market; (v) expanding and increasing access of all workers to voluntary and protected measures of working arrangements and leave that facilitate reconciliation of work–family life; (vi) expanding measures that support the reconciliation of work and family responsibilities within social protection systems; (vii) establishing and expanding adequate quality childcare and family services at community level; (viii) promoting social dialogue, collective bargaining and other measures to strengthen, facilitate and encourage the implementation of the principles of the Convention; and (ix) enhancing the capacity of enforcement authorities, including labour inspectors, tribunals, courts, and other competent bodies, to identify, prevent and remedy cases of discrimination in employment and occupation related to family responsibilities. The Committee asks the government to provide information on any measures taken or foreseen to apply the points referred to above.