Rapport définitif - Rapport No. 197, Novembre 1979

Cas no 917 (Costa Rica) - Date de la plainte: 26-OCT. -78 - Clos

1. 184. The complaint presented by the National Association of Public Employees (ANEP) is contained in a communication of 26 October 1978 and that of the General Confederation of workers (CGT) in two communications of 6 November and 18 December 1978. In a communication dated 17 January 1979, the world Federation of Trade Unions (WFTU) associated itself with the complaint presented by the CGT. The Government sent its observations on the ANEP complaint in a communication dated 19 April 1979 (received on 29 May) and its observations on the CGT complaint in another communication dated 16 July 1979.
2. 185. 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. A. The complainants' allegations

• Allegations regarding the attitude of the authorities towards the National Association of Public Employees
  186. 186 In the first place, the ANEP alleges that the Ministry of Labour and Social Security has interfered with the internal affairs of this trade union organisation. According to its complaint, on 3 December 1977 the ANEP's General Assembly approved a complete revision of its by-laws whose text was submitted a few days later to the Department of Social Organisations of the Ministry for registration in accordance with the law. However, the Department accepted an appeal, presented by a small group of members who had lost the previous union elections, that they be declared null and void. The ANEP have supplied copies of documents showing that the Department of Social Organisations suspended the registration of the new by-laws in January 1978 and that the ANEP contested the decision.
  187. 187 The ANEP states that, in order to avoid further discussion, it convened another general assembly on 25 February 1978 and approved a new revision of its by-laws, which were duly communicated to the Ministry. On 18 May, the Department of Social Organisations issued a ruling to the effect that the request that the assembly of 3 December 1977 be declared null and void was now no longer relevant, that the new assembly should be declared valid and that the reform of the by-laws of the ANEP should be duly registered. However, the Department drew the ANEP's attention to certain aspects in which it considered that the by-laws were not in keeping with the law. The organisation's executive Committee, duly authorised by the assembly, accepted these observations; the ANEP was subsequently informed that the Minister of Labour was studying the matter. In the meantime, another union assembly ratified the revised by-laws in August 1978. The ANEP complains about the authorities' long delay in settling the matter.
  188. 188 Secondly, the complaint states that on 20 April 1978 a union assembly decided that all members should pay a special contribution of 10 colons, since the organisation was at the time engaged in pursuing wage claims and this involved a certain amount of expenditure. The decision was communicated to the National Treasury of the Ministry of Finance, which made the necessary arrangements for the corresponding deductions to be made from the wages of the union members. As a result, the aforementioned group again lodged an appeal as a result of which, at the request the competent department of the ministry of Labour, the union was required to submit the record of proceedings of the assembly. From this moment, according to the complaint, the said Department maintained silence and took no decision, but it requested the National Treasury not to proceed with the deduction of the special contribution until such time as the ANEP had provided proof of the validity of the assembly. The ANEP states that the only explanation of the Ministry of Labour's delay in settling the matter appeared in a statement to the press in October 1978 to the effect that the Ministry was overworked.
  189. 189 Thirdly, the ANEP alleges that a collective labour agreement has existed since 1976 between the ANEP and the National Institute for Co-operative Promotion (INFOCOOP), an autonomous state institution. In July 1978, the general assembly of the members employed by INFOCOOP decided to denounce the agreement and approved a log of claims with a view to the negotiation of a new agreement. After negotiations had already begun, the ANEP received a letter from the ministry of Labour informing it that the local general assembly had no legal authority to negotiate and that the Ministry was withdrawing the delegate who had been attending as a conciliator. According to the complaint, both parties nevertheless continued to negotiate; moreover, the ANEP held a national general assembly on 23 October 1978 at which it ratified all the decisions taken by the delegates to the negotiations.
  190. 190 The ANEP recalls that Costa Rica has ratified Conventions Nos. 87 and 98 and alleges that the facts referred to in its communication constitute a violation of the principles of freedom of association and collective bargaining and the use of discriminatory tactics against the trade union.
  191. 191 The Government's observations on this aspect of the case, dated 19 April 1979, reached the Office during the May 1979 session of the Committee, which therefore postponed its examination. The Government points out that, when it came to power in May 1978, one of the matters awaiting decision by the Ministry of Labour had to do with the ANEP and concerned a request by certain union members for the nullification of one of its assemblies. Under the previous government, the ministry had erroneously followed up this internal union dispute, which had been misrepresented by the interested parties themselves.
  192. 192 The Government explains that, following careful examination of the facts, the conclusion was reached that it was not a matter for the Ministry of Labour but for the courts of justice. Consequently, a ruling was issued on 30 October 1978 (a copy of which is submitted by the Government) wherein the ministry declared that it had no competence in the matter and revoked the decision reached earlier by the Department of Social Organisations. The dissenting members were informed that they should air their differences in the courts. The revised by-laws were then registered and the special contribution authorised, independently of any court decision that might be reached later. As regards the latter point, the Government states that no official appeal against this decision has been lodged.
  193. 193 On the subject of collective bargaining between the ANEP and the National Institute for Co-operative Promotion, the Government states that the complaint distorts the facts of the case. It confirms that a collective agreement, concluded two years before, did exist and was denounced within the terms of the law. The Ministry of Labour was requested to collaborate by offering the services of a conciliator and, according to custom, this was done. During the initial stages of the negotiation, the conciliator asked the delegates to present their credentials; at the time, the union delegates did not possess credentials and their attention was duly drawn to the fact. The Labour Relations Department of the Ministry withdrew the conciliator pending fulfilment of the requirements of the law. The Government has submitted a copy of the communication of 9 October 1978 in which the Chief of the Labour Relations Department informed the interested parties that the sectional Committee of the ANEP in INFOCOOP was not legally authorised to approve the draft collective agreement or to appoint delegates to negotiate, inasmuch as these were the functions of the general assembly of the ANEP. Once this omission had been rectified, states the Government, the conciliator returned and the negotiations came to an end. The Government adds that the Ministry abided strictly by the laws of the country and that its action in no way imposed any constraint on union activities.
  194. 194 The Committee has before it allegations relating, on the one hand, to the damage caused to the normal running of the trade union by the delay of the Ministry of Labour authorities in attending to the controversy that arose in respect of the validity of the decision of the ANEP assembly and, on the other hand, to the refusal by the Ministry to recognise the authority of a local union Committee to negotiate a collective agreement.
  195. 195 It is apparent from the information submitted by the complainants and by the Government that the question of the registration of the by-laws was not settled for almost a year and that the collection by the union of a special contribution voted by the assembly was also held up for several months. The Committee notes the Government's statement that an error of procedure was committed both by the labour administration, which accepted the appeal against the decisions of the union assembly, and by the members of the union who raised their differences through these channels. The Committee would like to point out, as it has on previous occasions, that the principles of freedom of association do not prevent the control of the internal acts of a trade union if those internal acts violate legal provisions or union rules but that, in order to guarantee an impartial and objective procedure, this control should be exercised by the relevant judicial authorities. In the present case, the Committee notes with interest that the Ministry of Labour ruling of 30 October 1978 indicates that the law of the country provides for a proper judicial procedure for settling such controversies as that which arose in the ANEP. Under these circumstances, and bearing in mind the Government's assertion that the revised by-laws of the ANEP were duly and officially recorded and that the special contribution of its members was paid to the Organisation, the Committee considers that this aspect of the case does not call for further examination.
  196. 196 As to the allegation relating to the matter of collective bargaining in the Institute for Co-operative Promotion, the Committee notes that the decision of the ministry to withdraw the conciliator did not prevent negotiations from continuing and that, once the ANEP had ratified the appointment of the union representatives, these negotiations were able to reach a conclusion. Consequently, the Committee considers that this aspect of the complaint does not call for further examination either.
• Allegations relating to the attitude of the authorities towards the General Confederation of Workers
  197. 197 In their communications of 6 November and 18 December 1978 the General Confederation of Workers (CGT) alleges, in short, that since the new Government came to power in May 1978 it has launched a campaign against the CGT through the press, radio and television. According to the complainant organisation, the aim has been to divide the workers into two groups, one of which is presented as democratic and the other as undemocratic or communistic, the CGT being included in the latter group.
  198. 198 According to the CGT, the pretext for the anti-union campaign was a series of strike actions - quite common in the banana-growing areas - engaged in by the banana workers of Pococi and Guácimo, who were members of the Agricultural and Plantation Workers Union (STAPPG). The complainant adds that such strikes took place and continue taking place because the often strained relations between workers and owners in these areas are such that only a strike or the threat of a strike can bring about a rapid solution to a collective problem. The complainant organisation states that several of these strikes (in Coopecariari, La Guadalupe, Formosa, Frutera Atlántica and the La Teresa plantation) occurred within a month of the new Government's inauguration and that they were used as an excuse for the Ministry of Labour, the employers' associations and information media to start attacking the CGT and the independent trade union movement in general.
  199. 199 Furthermore, according to the CGT, the theme of the campaign was that an attempt was being made to destabilise the Government and undermine the democratic regime, that the workers should not allow the communists to use them for their own political and anti-patriotic ends and that the Government supported the democratic unions. The CGT asserts that its activities under the new Government have been in no way different from the programme for which it has always fought and that the aim of past and future strikes is no different from what it has always been, namely, to obtain better socio-economic conditions for the workers.
  200. 200 The complaint alleges that, as a result of the Government's campaign, two trade union federations withdrew from the Committee for Trade Union Unity, and that the Government and certain state institutions have hampered the negotiation of collective labour agreements - even going as far as to state that they will not negotiate because the union is controlled by communists. For example, the Costa Rican Port Institute (INCOP) refused to endorse an addendum to a document which had already been signed by the parties and which sought merely to specify the date of the agreement; and the Costa Rican Railways (FECOSA) stated that they would not negotiate a collective agreement because the union was in the hands of communists. The CGT further claims that the Government has encouraged manoeuvres by the employers to boycott collective negotiations (for example, in the TKACNIT and COFALA enterprises and in the La Teresa banana company) and to isolate the union, thereby obliging the workers to negotiate directly with the enterprise.
  201. 201 It is further claimed that, whenever the CGT is involved in some form of action, the Ministry of Labour prefers to have the police intervene. For instance, when the workers of the La Suerte plantation went on strike because they had not been paid for four weeks, the Department of Criminal Investigation intervened, according to the CGT, to prevent the representative of the enterprise from signing the agreement he had reached with the workers; in the San Luis plantation, when negotiations in which the STAPPG union, a CGT affiliate, was involved were broken off, the plantation was taken over by the police and the workers placed under supervision; the police also occupied the COOPEVICTORIA sugar mill when the union protested against the dismissal of a member of its executive Committee.
  202. 202 In the CGT's opinion, the Government has not respected certain Constitutional principles relating, inter alia, to freedom of association, the right to organisation and equality before the law; nor has it respected the provisions of the Labour code requiring the Ministry of Labour to promote the harmonious and orderly development of the trade union movement. It also considers that the ILO's Conventions have been violated. The CGT has sent to the Office a large number of newspaper cuttings, some of which refer to a speech made by the Ministry of Labour at a meeting of entrepreneurs in which, referring to the freedom and duties of the social groups, he reportedly drew attention to the need to be on the alert against the attempt of communism to undermine the democratic system. In another newspaper article, the President of the Republic is said to have refuted certain accusations that the Government was persecuting the trade unions and to have criticised the communist philosophy.
  203. 203 Other cuttings contain statements by the manager of a port enterprise, made in the context of a press controversy, in which he criticised the leaders of the National Federation of Public Service Workers, to whom he attributed political motives. Similar accusations against the CGT and STAPPG occur in other articles along with the replies published by the CGT and various trade union organisations. In another article, the Ministry of Labour is stated to have requested the dissolution of the STAPPG following a strike in a banana plantation - a request which was deemed irreceivable by the labour court. The Ministry of Labour had apparently accused certain union leaders of employing violence against the authorities and against workers who wanted to return to work.
  204. 204 In its reply dated 16 July 1979 the Government emphasises the democratic nature of Costa Rica's political system and the various social advantages from which the inhabitants of the country benefit. It points out, furthermore, that 39 per cent of the national budget is devoted to education, that there is no permanent army and that the strict enforcement of the law is ensured by a judiciary whose independence is guaranteed by the Constitution.
  205. 205 The Government denies the claim that the Ministry of Labour acted in defence of the employers' interests and states that its public declarations in the press, together with those of the President of the Republic, reflected the views of public officials in a democratic country who were putting the citizens on guard against certain dangers and threats and that it cannot be said that their stand was biased in favour of any particular social group. The Government adds that, far from supporting the policy of the employers' associations as the claimants allege, the Government not only backs trade unionism but gives its public support to the trade union movement which, in accordance with the law, is engaged in a genuine struggle to improve the socio-economic conditions of its members.
  206. 206 The Government states that, inasmuch as observance of the law is necessary both for the government authorities and for the citizens of the country, it was greatly disturbed by the frequent illegal strikes provoked directly or indirectly by unions affiliated to the CGT, especially in the agricultural sector which provides the country with most of its revenue it says, moreover, that the dangerous practice of substituting the fait accompli for proper legal proceedings is a threat to industrial peace and public order.
  207. 207 The Government confirms that strikes took place in the Coopecariari and La Guadalupe banana plantations but denies the allegation respecting difficult worker-management relations; it states that, in fact, agreements were signed in both cases between the CGT and the state institution ASBANA which was responsible for running these plantations. The Government has submitted a copy of these agreements, concluded in July 1978, and notes that, although they provide for the creation of a Committee to study and settle problems in connection with labour-management relations (the motive which the STAPPG union gives for the strike), the CGT and STAPPG subsequently showed no interest in appointing their own delegates to the Committee.
  208. 208 The Government has communicated copies of the labour court rulings of June 1978 which declared the strikes referred to in the previous paragraph and other strikes referred to in the complaint (at the Formosa, Frutera Atlántica and La Teresa enterprises) to be illegal in some instances the ruling refers to the motive given for the strike by the workers (dismissal of fellow workers, discontent with the foremen, solidarity with workers in another enterprise, etc.). In every case, two reasons are given for declaring the strike to be illegal: failure to comply with the conciliation procedure provided for in the Labour Code, and failure to comply with the provision contained in section 369(b) of the Code to the effect that "work performed by employees engaged in the sowing, cultivation, care or harvesting of agricultural, forestry or vivicultural products or in stock-raising, and likewise in the working of products, in cases where they would deteriorate if not immediately processed" are deemed to be "public services" (in which strikes are not permitted). The rulings stipulate that banana growing must be considered as covered by this definition and points out, moreover, that in some cases the strikes occurred at harvest time, thereby endangering the crop.
  209. 209 The Government has submitted a list of 32 strikes that were declared illegal by the labour courts between May 1978 and May 1979 and states that at no time did the trade unions or their leaders appear in court, even though in almost every case there were trade union organisations in the enterprises concerned. In the Government's view, the organisations are evading their legal responsibility by making it look as if the strike was organised by the workers.
  210. 210 With respect to the allegation that two trade union federations withdrew from an inter-union Committee following statements regarding the communist convictions of the leaders of the CGT, the Government states that this fact is common knowledge in Costa Rica and that the said federations' reasons for their decision were their own affair and not that of the Government.
  211. 211 As to the refusal of two autonomous state institutions to negotiate collective agreements, the Government states that, in accordance with a judgement by the Attorney-General of the Republic, the Government Council passed a resolution on 5 October 1978 to the effect that the State and its institutions are not required to sign collective agreements with trade unions and cannot and must not be called upon to subscribe to any such legal instrument, on the grounds that the administration cannot take steps which have not been expressly authorised.
  212. 212 Furthermore, Government records contain no trace of any enterprise under the name of TKACNIT. In Laboratorios COFALA, where there is no union and where a collective dispute arose, a plebiscite which had been ordered by the judge and was about to be organised by the Ministry of Labour was suspended by the judge because the parties had reached an agreement. In the La Teresa banana company the then union had already signed a collective agreement with the enterprise at the time the CGT presented its complaint.
  213. 213 According to the Government, the allegation of police intervention distorts the facts. In the La Suerte plantation, the officials responsible for the investigation, far from opposing an agreement, signed the text as witnesses and the document, a copy of which has been submitted by the Government, was communicated to the labour inspectorate.
  214. 214 As to the COOPEVICTORIA sugar mill, the Government states that, three years ago, the SITRACOVI union called a strike which was illegal, during which the workplace was occupied. This illegal occupation, it adds, endangered people's goods and safety since, when they ejected the occupants, the police found explosive bottles ready for use. Consequently, when the possibility of another strike was rumoured, the administrators of the co-operative requested protection and the rural police force was despatched to the premises. At the San Luis plantation, the STAPPG union had agreed to suspend collective bargaining to enable the representative of the enterprise to attend an international meeting. During this period, a group of workers began to boycott production by deliberately working more slowly. A small number of workers also went on strike and prevented others from going to work. At the request of the enterprise, the rural police force was despatched to the entrance of the plantation and to the surrounding areas to ensure that the workers who wished to go to work were able to do so. The Government has submitted a copy of a letter dated 14 October 1978 in which the authorities informed the enterprise that they had agreed to detach two police agents to maintain order and protect property for two days.
  215. 215 The Government considers that, if the law of the country had been infringed as the complainants allege, they should have taken the matter to the courts of the Republic.
  216. 216 The Committee has before it allegations relating to a campaign which the complainants allege the authorities have launched, through their public statements, in order to discredit and weaken a sector of the trade union movement by describing it as anti-democratic.
  217. 217 This case bears certain analogies with cases which have come before the Committee in the past, in which it pointed out that the right to express opinions through the press or otherwise is clearly one of the essential elements of trade union rights and that, while freedom of expression must therefore be accorded to trade union organisations, it is evident that the same freedom cannot be denied to governments. However, the Committee added, the Government should not exercise such freedom of expression in such terms and by such means - in particular, by utilisation of the machinery of the State - as to assume a coercive character and infringe the right of workers to belong to organisations of their own choosing.
  218. 218 On this point, the Committee has stated that the question as to how far the attitude publicly adopted by a government towards a trade union organisation constitutes an infringement of the workers' right to belong to organisations of their own choosing would seem to depend essentially on factual circumstances; it might depend, for example, on the terms in which the Government concerned expressed its point of view, on the conditions in which the view was brought to the notice of the public or of the workers concerned (press, utilisation of the machinery of the State, etc.) and on any other elements which might make it possible to judge whether the position taken up by the Government did or did not assume a coercive character or might probably have exercised pressure on the workers concerned.
  219. 219 In the present case, the statements made by the Minister of Labour and other government representatives were apparently formulated at a time of some tension as a result of the calling of strikes in banana-growing areas. The Government explains that the strike which had been called in defiance of the law had been causing it considerable concern. The CGT, on the other hand, states that workers in banana-growing areas are in the habit of resorting to "de facto" strikes in order to obtain a rapid settlement of their claims. The evidence submitted to the Committee in connection with this aspect of the case consists of views and admonitions published in the press of the country on a controversial note but, apparently, without assuming a coercive character. The press, moreover, published the points of view of both parties. Consequently, and bearing in mind the principles referred to in the foregoing paragraphs, the Committee considers that the complainants have not offered sufficient proof that the statements cited in the complaint constitute an infringement of freedom of association. It further considers that the responsibility of the Government in the withdrawal of two organisations from the Committee for Trade Union Unity has not been proved.
  220. 220 With respect to the intervention of the authorities in the various collective disputes mentioned in the complaint, the Government has submitted fairly detailed information, including the text of several court rulings from which it is apparent that a number of the strikes were declared illegal by the labour courts. In some cases the disputes ended with a signing of agreements, copies of which have been submitted by the Government. As regards the allegations concerning the involvement of the police in two of the disputes, the information supplied by the Government indicates that the authorities acted at the request of the enterprises and that the role of the police was expressly limited to preventing damage to property and threats to public order.
  221. 221 The Committee has always maintained that the right to strike is one of the essential means through which workers and their organisations may promote and defend their occupational interests. It has further maintained that prior notification to the administrative authority and provision for compulsory conciliation and arbitration in industrial disputes before calling a strike are provided for in the laws or regulations of a substantial number of countries and that reasonable provisions of this type cannot be regarded as an infringement of freedom of association. It is apparent from the information which the Committee has received on the present case that the advance notice requirement provided for in the Labour Code for the purpose of conciliation was not observed by the strikers.
  222. 222 The Committee notes, furthermore, that under the Labour Code workers in the agricultural sector may not call a strike if the interruption of work is liable to cause the products to deteriorate. In several previous cases, the Committee recognised that the right to strike could be restricted or even prohibited in the civil service or in essential services because a strike there could cause serious hardship to the national community. It has also considered that it appears impossible for large strikes to take place in undertakings constituting key sectors in the life of a country without such hardship arising, Nevertheless, the Committee has taken the view that its principle regarding the prohibition of strikes in the essential services might be set aside if a strike were declared illegal in one or more firms which were not performing an "essential service" in the strict sense of the term. From the evidence available in the present case it is not apparent that the provision contained in the Labour Code applies indiscriminately to any agricultural activity. Bearing in mind, moreover, that the complaint does not relate to this aspect of the matter, the Committee merely wishes to recall in general terms the importance it attaches to the foregoing considerations.
  223. 223 Finally, the complaint alludes to the refusal of the Institute of Ports and Railways of Costa Rica, an autonomous state institution, to negotiate collectively. In its reply, the Government invokes a decision adopted in October 1978 to the effect that the State and its institutions cannot and may not enter into collective agreements with their employees. A further communication from the Government referred to in this report (see paragraph 193 above) indicates that negotiations began in July 1978 between the National Institute for Co-operative Promotion and the ANEP with a view to the negotiation of a new collective agreement.

B. B. The Committee's conclusions

1. 224. The Committee wishes to recall that, under Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which Costa Rica has ratified, measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements. Under the terms of Article 6, this Convention does not deal with the position of public servants engaged in the administration of the State. The Committee has stated that Convention No. 98, and in particular Article 4 thereof concerning the encouragement and promotion of collective bargaining, applies both to the private sector and to nationalised undertakings and public bodies, it being possible to exclude from such application public servants engaged in the administration of the State. In the same spirit, the Committee of Experts on the Application of Conventions and Recommendations has expressed the view that a distinction should be drawn in this respect between civil servants employed in various capacities in government ministries or comparable bodies, that is, public servants who by their functions are directly engaged in the administration of the State as well as lower-ranking officials who act as supporting elements in these activities, and other persons employed by the Government, by public undertakings or by autonomous public institutions.,
2. 225. In these circumstances, the Committee feels it must draw the Government's attention to the considerations outlined in the foregoing paragraph and to the desirability of ensuring that no measure liable to hamper the collective bargaining process is applied to the latter category of workers.

The Committee's recommendations

1. 226. In these circumstances and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) with respect to the allegations relating to the attitude of the authorities towards the National Association of Public Employees and in the light of the considerations contained in paragraphs 195 and 196 above, to take note that the issues raised in the complaint have been settled and to decide that these aspects of the case do not call for further examination;
   • (b) with regard to the allegations concerning the attitude of the authorities towards the General Confederation of Workers:
   • (i) bearing in mind the principles and considerations outlined in paragraphs 217 to 219 above, to take note that the complainants have not provided proof that the statements made by government personalities referred to in the complaint, constitute an infringement of freedom of association;
   • (ii) to take note of the information supplied by the Government regarding the collective disputes referred to in the complaint and to point out that compulsory conciliation before calling a strike does not constitute an infringement of freedom of association;
   • (iii) with respect to the provisions of Articles 4 and 6 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), to draw the Government's attention to the considerations contained in paragraph 224 above and to the desirability of ensuring that no measure liable to hamper the process of collective bargaining is applied to workers in the public sector who are not public servants in the administration of the State;
   • (iv) to draw these conclusions to the attention of the Committee of Experts on the Application of Conventions and Recommendations.