Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee takes note of the Government’s report, the discussion held on the application of the Convention in the Conference Committee in June 2006, the report of the High-Level Mission to Costa Rica undertaken from 2 to 6 October 2006, as well as the communications transmitted by the Government following the Mission. The Committee notes the comments submitted by the ICFTU on 12 July 2006, and the Government’s reply. The Committee observes that the Government’s response refers solely to the legislative issues raised by the ICFTU without addressing the latter’s comments regarding violations of the Convention in 2005. The Committee requests the Government to transmit its observations on the alleged violations. Further noting the comments of the Union of Public and Private Enterprise Employees (SITEPP), dated 3 October 2006 (and received on 20 October 2006), the Committee requests the Government to submit its observations thereon.

The Committee recalls that in its previous observation it raised the following points concerning the application of the Convention:

–           the slowness and ineffectiveness of recourse procedures in the event of anti-union acts;

–           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;

–           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 at the request of the public authorities (the Ombudsperson, the Office of the Public Prosecutor) or of a political party;

–           the enormous imbalance in the private sector between the number of collective agreements concluded by trade unions and the number of direct agreements concluded by non-unionized workers (the Committee had previously called for an independent investigation into this matter).

The Committee takes note of the Government’s statements that: (1) the Government possesses the will and commitment to resolve the problems raised by the Committee of Experts; (2) it had requested the ILO’s technical assistance in the hope that this would allow for resolution of the problems mentioned; (3) the efforts of the Government (many of which were tripartite) regarding these problems included the presentation of several legislative proposals to the Legislative Assembly and their reactivation: a draft constitutional amendment concerning article 192, a bill on collective bargaining in the public sector, and the addition of paragraph 5 to section 12 of the General Law on Public Administration (the three initiatives are intended to strengthen collective bargaining in the public sector); a draft amendment to the chapter on freedom of association in the Labour Code; parliamentary approval of ILO Conventions Nos. 151 and 154; the revision of various sections of the Labour Code, Act No. 2 of 26 October 1943, and sections 10, 15, 16, 17, and 18 of Decree No. 832 of 4 November 1949 and its amendments; a law concerning the reform of the working procedures (aimed at the elimination of delays and introducing the principle of hearings, and the establishment of summary procedures for cases of anti-union discrimination); (4) the Government’s efforts also include other types of initiatives, such as the intervention of third parties to defend collective agreements (coadyuvancia) in legal actions of unconstitutionality brought in order to annul specific clauses in the said agreements; and the reinforcement of alternative modes of dispute settlement through the Centre for Alternative Settlement of the Ministry of Labour, which has increased the number of persons dealt with in 2005 to 3,329.

The Committee notes that the Government states that the Administrative Directive of 4 May 1991 requires the labour inspectorate to certify that the enterprise concerned does not have a union recognized for bargaining purposes before registering direct agreements with non-unionized workers; however, the Government adds that there were 67 collective agreements in force in the public sector in August 2006 and 13 in the private sector, whereas the number of direct agreements was 69.

The Committee notes the statistics furnished by the Government relating to complaints of anti-union discrimination and observes that, in 2005, the statistics indicate 38 cases.

The Committee stresses that according to the conclusions and the documentation of the High-Level Mission: (1) the problem of the slowness of the procedures, which in cases of anti-union acts translates to a period of at least four years before a final judgement is obtained, is addressed by the proposed reforms to the working procedures submitted to the General Assembly and a draft partial amendment to the Labour Code that strengthens protection against anti-union acts; (2) the problem of the increased number of direct agreements with non-unionized workers in relation to the number of collective agreements will be addressed by an independent expert appointed by the ILO who will undertake an independent inquiry in Costa Rica in February 2007; (3) the problems relating to collective bargaining will be addressed through amendments to the Constitution and the General Law on Public Administration, a bill on collective bargaining in the public sector, and through proposals for parliamentary approval and ratification of Conventions Nos. 151 and 154; (4) the pending proposals will be examined by the Higher Labour Council (a tripartite body for dialogue) with the objective of studying them and providing them with new impetus, through means obtained by consensus; and (5) the Higher Labour Council had asked the Legislative Assembly for the creation of a joint commission, with the technical assistance of the ILO, in order to develop the plan for the reform of the working procedures.

The Committee notes on the other hand that, as concerns the possibility of judicial annulment of clauses in collective agreements in the public sector on the basis of criteria of rationality and proportionality, the Mission explained the principles of the ILO to the different authorities involved in the complaints filed for unconstitutionality regarding these collective agreement clauses. The Committee notes that the relation of votes of the judges of the Constitutional Chamber annulling the clauses of the collective agreements is in development, having passed by a vote by 6 to 1, and 4 to 3, and thus, according to the Government, out of a total of 1,828 clauses, 122 had been contested (6.67 per cent) out of which only 15 were invalidated (0.82 per cent), 31 were deemed constitutional (1.69 per cent) and 76 were unresolved and still pending; according to the Government, the contested clauses precede the decree of 21 May 2001 regulating collective bargaining in the public sector as well as the adequate consideration of the jurisprudence of the Constitutional Chamber, which will obviate new contestations in the future. The Government stresses that when the Constitutional Chamber annulled specific clauses in a collective agreement, it implicitly accepted their constitutionality; a process of collective bargaining within the Ministry of Labour and the committee on politics for collective bargaining envisaged in the decree of 2001 had authorized negotiations with associations of civil servants in the Ministry. The Committee notes that, according to the information provided by the Government, the number of unions, federations and confederations is, respectively, 767, 52, and 9; and that the rate of unionization was over 4.2 per cent in 2005, and at 4.6 per cent in 2006.

The Committee underlines nevertheless that the trade union rights situation remains sensitive. The cases submitted to the Committee on Freedom of Association and the numerous complaints to the Mission demonstrate the persistence of important problems regarding the application of the Convention in matters of anti-union discrimination and collective bargaining, which have given rise to discussions in the Conference Committee on several occasions. The Committee understands the difficulties of employers’ and workers’ organizations, faced with a lack of political will on the part of preceding governments whose proposals for legal reform were inadequate or lacked sufficient support, in spite of the fact that, in several cases, they were following tripartite agreements. The Committee emphasizes the dangers for the system of labour relations and collective bargaining of the authorities’ failure to produce a set of agreements reached through tripartite consensus.

The Committee notes the Government’s contacts with certain members of the Legislative Assembly who belong to the largest opposition party and who, according to the report of the High-level Mission, also support the reforms requested by the ILO. The Committee also notes that the bill to reform the working procedures is at the stage of analysis by the Committee on Legal Affairs, and that it includes a process for reactivating other legal reforms.

The Committee expresses the hope that the various legal reforms currently in progress will be adopted in the very near future, and will be in conformity with the Convention. The Committee requests the Government to keep it informed in this regard, and hopes that the political will unequivocally expressed following the High-level Mission will lead to the fuller application of the rights and guarantees contained in the Convention.