Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Costa Rica (Ratification: 1960)

The Committee notes the Government’s report, resolution No. 346-98 of August 1998, the draft reform of the Labour Code and Legislative Decree No. 832. It also notes the observations made by the Rerum Novarum Confederation of Workers (CTRN), the Costa Rican Transport Workers’ Union (SICOTRA) and the Ministry of Finance Employees’ Union (SINDHAC) with regard to the application of the Convention. It also recalls that its previous comments referred to various discrepancies between national law and practice and the guarantees set out in the Convention, in particular:

-  article 60(2) of the Constitution and section 345(e) of the Labour Code, under which foreign nationals are prohibited from holding office or exercising authority in trade unions;

-  sections 375 and 376(c) of the Labour Code, which prohibit the exercise of the right to strike in the rail, maritime and air transport sector;

-  the inequality of treatment between solidarist associations and trade unions with regard to the management of compensation funds for dismissed workers;

-  section 14 of the Labour Code, which excludes from the scope of the Code agricultural and stock-raising enterprises which permanently employ no more than five workers; and

-  the observations made by the Costa Rican Inter-Confederal Committee (CICC) and by the Workers’ Union of the Institute for Agricultural Development (UNEIDA) regarding the public authorities’ restrictions on trade union organizations with regard to the formulation of their statutes, the election of their representatives, the acquisition of legal personality and their activities, including strikes.

Prohibition upon foreign nationals from holding
office or exercising authority in trade unions

The Committee notes the submission by the Minister of Labour and Social Security of a draft amendment to article 60(2) of the Constitution of the country with regard to the prohibition upon foreign nationals from holding office or exercising authority in trade unions. Furthermore, the Committee notes that, in accordance with a Unanimous Affirmative Opinion issued by the Permanent Committee on Legal Matters of the Legislative Assembly respecting the Bill to amend various sections of the Labour Code and Legislative Decree No. 832, section 345(e) of the Labour Code, which prohibits foreign nationals from holding office or exercising authority in trade unions, should be repealed. The Committee expresses the strong hope that this Bill will be adopted in the very near future and that the repeal of this provision will be reflected in the Constitution (article 60(2)).

Prohibition upon exercising the right to strike
in the rail, maritime and air transport sector

The Committee notes that the Government currently prefers to remain silent on this issue while awaiting the publication of the considerations on issues of form and substance on which the Constitutional Chamber based its opinion on 27 February 1998 in declaring unconstitutional subsections (a) and (b) of section 376 (which prohibited the right to strike for public officials and agricultural workers, respectively), while maintaining this prohibition for workers in the rail, maritime and air transport sector (subsection (c)). In view of the time which has since elapsed and the fact that the CTRN, SICOTRA and the SINDHAC are criticizing the failure to comply with the Convention in the transport sector, the Committee expresses the strong hope that in the very near future the Government will take the appropriate measures to give legal recognition to the right to strike of workers in the above sectors. The Committee requests the Government to inform it in its next report of any legislative progress made in this respect and to forward a copy of the legislative text once it has been adopted.

Inequality of treatment between solidarist associations
and trade unions in relation to the management of
compensation funds for dismissed workers

The Committee asked the Government to modify its legislation so as to guarantee to the trade unions the faculty to administer the employment compensation in the same way as the solidarist associations in order to eliminate all inequality in this matter. The Committee notes with interest that, according to the Government, this inequality has been removed by means of the Workers’ Protection Act of 15 February 2000. This text was prepared jointly by representatives of employers, solidarist associations, cooperatives, trade unions and the Government, so that workers are able to choose in full freedom the authorized body which will administer the funds deposited in their name by their employer. The Committee requests the Government to provide the complete text of the above Act with its next report.

Exclusion of agricultural workers in small
enterprises from the scope of the Labour Code

With regard to section 14 of the Labour Code, subsection (c) of which excludes from its scope agricultural or stock-raising enterprises which permanently employ no more than five workers, the Committee notes that, according to the Government, this provision was declared unconstitutional in 1952 by a Decree which provided that "genuine agricultural or stock-raising establishments which employ five or fewer workers shall be governed by the provisions of this Code". The Committee regrets to note that this has not been reflected in the Code. The Committee therefore once again reminds the Government that, in accordance with Article 2 of the Convention, all workers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing to further and defend their occupational interests. The Committee requests the Government to send it an updated version of the Labour Code which also provides that agricultural workers in small establishments enjoy the guarantees set out in the Code and, in particular, the right to organize.

Government interference in the trade union activities
of the CICC and of the UNEIDA

With regard to the observations made by the Costa Rican Inter-Confederal Committee, the Committee notes with interest the Unanimous Affirmative Opinion of the Permanent Committee on Legal Matters of the Legislative Assembly, dated 16 March 1999, respecting the Bill to "reform various sections of the Labour Code and Legislative Decree No. 832", repealing subsection (a) of section 346 of the Labour Code, which establishes the obligation that the assemblies of workers’ organizations elect annually the executive committee.

The Committee nevertheless observes that the Bill does not envisage repealing the restrictions on the right to strike set out in subsection (c) of section 373 of the Labour Code, by virtue of which, to call a legal strike, the workers must "constitute at least 60 per cent of the persons who work in the enterprise, workplace or commerce in question". The Committee recalls in this respect that, if a member State deems it appropriate to establish in its legislation provisions for the requirement of a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see the 1994 General Survey on freedom of association and collective bargaining, paragraph 170).

The Committee also notes that, by virtue of new section 344 of the above Bill, the Social Organizations Department will merely fulfil the function of registration in relation to the granting of legal personality to trade unions. While welcoming this possible amendment, the Committee notes that in no event should administrative silence give rise to undue delays in the acquisition of legal personality by trade unions, and that the elapse of a reasonable period of time established by law without a response should be interpreted as indicating a positive outcome in this respect.

The Committee takes note of the comments of the Costa Rican Union of Chambers and Association of Private Enterprises (UCCAEP), which praises the action of the constitutional bodies in their efforts to adapt the national laws and practice to the Convention.

The Committee requests the Government to provide information in its next report on the measures which have been adopted or are envisaged to bring the law and practice into conformity with the Convention.