Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Costa Rica (Ratification: 1960)

The Committee notes the Government's report and the information provided in 1997 concerning the comments made by the Inter-Confederal Committee of Costa Rica (CICC) on the application of the Convention.

The Committee recalls that its previous comments referred to the non-recognition of the right to collective bargaining for public servants not engaged in the administration of the State and the need for the adoption of measures to facilitate the rapid expedition of proceedings in cases of anti-union discrimination.

Similarly, the Committee notes the comments made by the CICC in 1997 which referred to the following: (1) the delay in processing of cases of anti-union discrimination and the failure to carry out the courts' rulings to enforce the reinstatement of trade union leaders; (2) acts of interference by the employer in the establishment of trade union organizations; (3) the inequality of treatment between trade unions and solidarist associations with regard to the management of compensation funds for dismissed workers (this matter is examined by the Committee in the framework of Convention No. 87); (4) the lack of adequate bodies to ensure the respect of the right to freedom of association; (5) the impossibility for public servants to negotiate collectively and the non-application of certain collective agreements and the non-existence of collective bargaining in the private sector resulting from the high level of trade union persecution.

Article 2 of the Convention. In respect of the alleged acts of interference, the CICC refers to the case of FERTICA S.A., where the enterprise's management promoted the establishment of an executive committee in parallel with the existing executive trade union committee. The Committee notes the Government's indication that, after having been referred to the administrative authorities, this case was referred to the judicial authorities; nevertheless, the Committee notes that, according to the documentation submitted by the CICC, the Labour Inspectorate concluded in a report that FERTICA S.A. had engaged in unfair practices by "promoting the establishment of another executive committee (... from the union ...) parallel to the existing one ...". Under these conditions, the Committee emphasizes that, in accordance with Article 2 of the Convention, workers' and employers' organizations shall enjoy adequate protection against any act of interference by each other, as well as the importance of respecting this principle in practice.

Article 3. In respect of the proceedings relating to acts of anti-union discrimination and the failure to implement the courts' rulings to reinstate trade union leaders, the Committee notes the Government's statement that: (i) in respect of administrative procedures, the National Directorate of Labour Inspection has undertaken to investigate the numerous denunciations made on these matters in an objective manner and as laid down in the basic principles set out in the Constitution, in national law and jurisprudence; these investigations result in administrative decisions, which on occasion result in cases being brought to the courts; the Government provides detailed information on the various stages of the proceedings in respect of the following enterprises: FERTICA S.A., Caja de Ande, Compañía Bananera Anabel and the Institute of Agrarian Development; (ii) when these matters are referred to the judicial authorities, the National Directorate of Labour Inspection is prevented from intervening in the proceedings, either to speed up the proceedings or to support the plaintiffs, but that the lawyers of the National Directorate of Labour Inspection undertake awareness-raising activities for those responsible for the case; (iii) the lack of enforcement of sentences handed down by the courts and the time taken to resolve each case in the first and second instances cannot be blamed on the administrative authorities; (iv) whilst it is clear that existing labour legislation is inadequate to resolve the numerous labour issues, it is also clear that the delay in certain proceedings have occurred as a result of the inaction or tardiness of certain plaintiffs in providing evidence or in fulfilling certain requirements which are necessary to prove the alleged offences; (v) a Ministry of Labour directive recently reaffirmed the obligation of the administrative authorities to speed up proceedings in respect of anti-union discrimination and a ruling of the Constitutional Council of the Supreme Court indicates that the work of the administrative authorities is limited to carrying out an investigation to determine whether there are sufficient grounds to bring a case before the courts and emphasizes that the investigation must be concluded within a two-month period.

The Committee also notes that the CICC refers to a considerable number of denunciations of acts of anti-union discrimination between 1994 and 1996 which have still not been processed by the administrative authorities and that the Government has commented on several cases of delays. Similarly, the Committee notes that the Government does not deny the slowness of judicial procedures in labour matters and emphasizes that this is largely due to the lack of evidence supplied by the parties and that the Constitutional Council of the Supreme Court recently laid down a two-month time-limit on the administrative authorities for the proceedings (prior to the cases of anti-union discrimination being referred to the courts). The Committee recalls that, in cases of allegations of acts of anti-union discrimination, it has always emphasized the necessity of providing expeditious, accessible, inexpensive and impartial means of preventing acts of anti-union discrimination or remedying them as quickly as possible (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 216). Under these conditions, since the Government recognizes the inadequacy of the procedures laid down in the current labour legislation and that up to now significant measures have only been adopted in respect of administrative procedures (a directive of the Ministry of Labour reaffirming the duty of the administrative authorities to expedite the proceedings of cases of anti-union discrimination, and a ruling of the Constitutional Court imposing a two-month time-limit on the administrative authorities for their investigations and to decide whether to bring a case for acts of anti-union discrimination), the Committee requests the Government to consider amending the legislation to expedite judicial proceedings concerning anti-union discrimination and to ensure that the decisions thereby are implemented by effective means. The Committee requests the Government to inform it in its next report of any measures adopted in this respect.

Article 4. In regard to its previous comments on the non-recognition of the right to collective bargaining of public servants not engaged in the administration of the State, which was also raised by the CICC, the Government had been referring for several years to a Bill respecting public employment which considers the right to collective bargaining and to strike in the public sector. The Committee notes that, in its report, the Government states that the Bill in question is still awaiting examination by the Legislative Assembly and that, within the legal and constitutional limitations restricting the intervention of the Executive in the functions of other branches of the Republic, the Ministry of Labour and Social Security undertakes to make greater efforts to encourage the examination of the Bill in the near future. The Government also refers to the Regulation of 1992 on collective bargaining by public servants which, in a certain manner, is transitory in its nature and provides for the "participation" of public servants in determining their terms and conditions of work, although the Government recognizes that this participation does not take place through collective agreements. The Government also indicates that it envisages presenting a draft text to the Legislative Assembly respecting the settlement of collective disputes in the public sector which, in its opinion, would fully and totally resolve the problem of collective bargaining. In this respect, the Committee regrets to note that, despite this being a fundamental right, there have been no significant developments for many years with regard to the right of public servants who are not engaged in the administration of the State to bargain collectively to determine their terms and conditions of work through collective contracts or agreements. Under these conditions, the Committee expresses the firm hope that the legislation on this matter will be adopted in the near future and requests the Government to keep it informed in this respect.

With regard to the comments made by the CICC in respect of the non-application of collective agreements concluded by the parties (and in particular with reference to the case of FERTICA S.A.), the Committee notes that, although the Government has not transmitted its comments in this respect, the Committee on Freedom of Association has examined this allegation and has adopted recommendations requesting the Government to take measures to ensure that FERTICA S.A. duly complies with the collective agreement (see the 305th Report of the Committee on Freedom of Association, Case No. 1879, paragraph 205(a)).

Finally, in respect of the CICC's allegation that collective bargaining in the private sector is non-existent as a result of the high levels of trade union persecution, the Committee notes that the CICC has not provided concrete information in support of its allegations and the Committee is therefore unable to reach conclusions on this matter.