Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee notes the Government’s report and its reply to the comments made by the International Confederation of Free Trade Unions (ICFTU) and the Workers’ Confederation Rerum Novarum (CTRN). The Committee notes the discussion held in the Conference Committee in 2004 on the application of the Convention.

The Committee notes that the problems at issue are the following: (1) the slowness and ineffectiveness of recourse procedures in the event of anti-union acts; (2) restrictions on the right to collective bargaining in the public sector as a result of various rulings by the Constitutional Chamber of the Supreme Court; (3) the subjection of collective bargaining in the public sector to criteria of proportionality and rationality in accordance with the case law of the Constitutional Chamber, which has declared unconstitutional certain clauses of collective agreements in the public sector (according to the ICFTU and the CTRN, the problem is now affecting other collective agreements); and (4) the enormous imbalance in the private sector between the number of collective agreements concluded by trade union organizations (12, covering 7,200 workers) and the direct accords concluded by non-unionized workers (130) (the Committee previously called for an investigation to be undertaken of this matter by independent persons).

The Committee notes that an advisory mission was undertaken in April 2005 on the problems raised and that the mission interviewed members of the legislative, executive and judicial authorities with a view to encouraging reforms to allow full effect to be given to the Convention and the establishment of a process of dialogue (called for by the Conference Committee) with the high-level public authorities and the social partners for this purpose. The Committee noted in its previous observation that the Government was in agreement with the changes requested by the Committee of Experts and it observes that the Government is continuing to encourage measures to achieve compliance with its recommendations. The Committee notes that the mission was informed that an opposition political party is opposed to reforms related to the recommendations made by the ILO concerning collective bargaining in the public sector and the other matters raised.

The Committee notes that the comments of the ICFTU and the CTRN relate to matters which have already been raised, as well as to other problems, among which emphasis may be placed on the following: delays in labour procedures and the complexity of administrative processes to obtain the reinstatement of trade union members (the reinstatement of workers is reported to take an average of three years); the lack of any real will by the authorities to secure the approval of the draft legislation relating to the Convention; little effect is given in practice to the regulations respecting collective bargaining in the public sector (many categories of public workers and employees have been denied this right), and when they are applied, there is interference by a body composed of ministers established under these regulations; there are cases of the dismissal of workers who establish trade unions, also in export processing zones, and the Constitutional Chamber is continuing to annul provisions of collective agreements in the public sector, at the request of the Ombudsperson and the Office of the Public Prosecutor, particularly on the grounds that they go beyond certain minimum standards, especially in the case of clauses of an economic nature or relating to trade union leave; there is therefore great legal insecurity; and solidarist associations are being used to undermine trade unions.

The Committee notes the Government’s statements that the judicial authorities have forwarded to the executive authorities a Bill to reform labour procedures for its submission to the Legislative Assembly, and that the Bill was formulated with the technical assistance of the ILO and takes into account the recommendations of the Committee on Freedom of Association. The Bill is intended to address the causes of judicial delays by revising or simplifying previous judicial procedures. With certain exceptions, it has the agreement of the social partners. The Bill provides protection against acts of anti-union discrimination and establishes a special process for the protection of persons with a special protected status, including workers covered by trade union protection. It introduces the principle of oral submissions, which should speed up the procedures. The Committee notes this information with interest. The Government also indicates that the Ministry of Labour has introduced alternative means for the settlement of disputes. According to the Government, the efforts made have resulted in a decrease in the number of cases reaching the courts. On the other hand, with reference to the comments by trade union organizations that collective bargaining practically does not exist in the private sector, the Government states that this is a subjective and an unfounded view. With regard to the promotion of direct accords with non-unionized workers, the Government indicates that this system has a basis in law and is freely chosen by the parties in accordance with legal regulations, even though collective bargaining is recognized by the Constitution and is therefore ranked higher. Furthermore, an administrative instruction calls upon the labour inspectorate to reject a direct accord where there is a recognized trade union. The Ministry of Labour has provided support to trade union organizations in the form of assistance with the legal action (before the courts) taken against certain clauses in collective agreements in the public sector. (The Government has attached a ruling of the Constitutional Court rejecting an appeal to find a clause in a collective agreement unconstitutional.) The Government recalls that the scope of application of the regulations on collective bargaining are in conformity with the Convention and that the legislation severely sanctions any excesses which may be committed by solidarist associations. Finally, the Government emphasizes the consequences of the separation of powers in the State and the limits that this imposes on Government action.

The Committee also notes the Government’s reference to the draft texts that it had promoted in relation to the problems at issue, including draft texts for the ratification of Conventions Nos. 151 and 154, the Bill for the negotiation of collective agreements in the public sector and the addition of a fifth point to the General Act on public administration, a Bill to amend certain provisions of the Labour Code, a draft constitutional reform to guarantee the right to collective bargaining in the public sector at the constitutional level and the adoption of a Decree in May 2001 to resolve this problem in the public sector.

The Committee notes that the problems at issue have persisted for many years and that most of the draft legislative texts referred to by the Government have been under examination for several years. The Committee hopes that the competent authorities will find solutions as soon as possible to all the problems raised and that it will be able to note progress in law and practice in the near future. The Committee requests the Government to provide information in this connection and for an independent investigation to be held into the high number of direct accords with non-unionized workers. It also requests the Government to provide statistics on complaints of anti-union discrimination and on the number of collective agreements in the public and private sectors, with an indication of their respective coverage.