Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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 and its reply to the comments of the International Trade Union Confederation (ITUC), dated 28 August 2007, on the application of the Convention. In its previous observation, the Committee noted the report of the high-level technical assistance mission which visited San José from 2 to 6 October 2006 in the context of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee notes the reasons given by the Government for the delay in the examination of the Bills relating to the application of the Convention by the Legislative Assembly (the need to adopt additional legislation under the Free Trade Agreement). Furthermore, the Government organized a forum with the participation of members of Parliament to promote the draft reform of labour procedures.

Article 3 of the Convention. Right of organizations to elect their representatives in full freedom. Prohibition upon foreigners from holding office or exercising authority in trade unions (article 60, second paragraph, of the Constitution and section 345(e) of the Labour Code). The Committee observed previously that Bill No. 13475 (currently on the agenda of the Legislative Assembly) amends section 345(e) of the Labour Code so that it no longer provides that the members of the executive board of a trade union must be of Costa Rican nationality or of Central American origin, or foreign nationals married to a Costa Rican woman and having completed five years of permanent residence in the country. Nevertheless, the Bill provides that the bodies of trade unions have to comply with the provisions of article 60 of the Constitution, which provides that “foreign nationals are barred from positions of management or authority in trade unions”. The Committee noted previously that a draft reform of the Constitution, prepared with the assistance of the ILO, had been submitted to the Plenary of the Legislative Assembly in 1998. The Committee regrets to note the Government’s indication in its report that the draft reform of the Constitution has been shelved as the four-year period has elapsed. The Government expresses its good will to make all the necessary efforts to promote this issue among the members of the Legislative Assembly. The Committee previously drew the Government’s attention to the importance of amending not only section 345 of the Labour Code, but also article 60, second paragraph, of the Constitution, to abolish the excessive restrictions that are currently placed on the right of foreign nationals to hold trade union office, which are inconsistent with Article 3 of the Convention. The Committee reiterates its comments in this respect.

Obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee noted previously that Bill No. 13475 no longer establishes the requirement for the executive board to be appointed each year. The Committee notes the Government’s indication that in practice the Ministry of Labour ensures the full autonomy of organizations to determine the duration of the mandates of their executive boards.

Right of organizations to organize their activities and to formulate their programmes in full freedom. Restrictions on the right to strike: (i) requirement of “60 per cent of the persons who work in the enterprise, workplace or establishment concerned” – section 373(c) of the Labour Code; and (ii) prohibition of the right to strike for “workers engaged in rail, maritime and air transport enterprises” and “workers engaged in loading and unloading of docks and quays” – section 373(c) of the Labour Code.

The Committee noted previously that, according to the Government, on 25 August 2005 the judicial authorities referred to the Executive for its submission to the Legislative Assembly a Bill to reform labour procedures, which benefitted from ILO technical assistance. The Committee noted that, according to the Government, the Bill takes into account the ruling of 27 February 1998 by the Constitutional Chamber and the recommendations of the Committee on Freedom of Association, and has been endorsed by the trade union organizations and employers’ associations, except with regard to certain provisions. The Committee observed previously that the Bill:

–           proposes 40 per cent of workers in order to call a strike (the employers’ associations rejected this percentage, citing the principle of democratic participation);

–           the right to strike is restricted only in essential services in the strict sense of the term, although these include the loading and unloading of perishable goods in ports; transport is considered an essential service as long as the journey has not been completed;

–           strikes may no longer be deemed unlawful before they have occurred;

–           arbitration is introduced for disputes in essential services and in the public sector (in this respect, the Committee recalls that compulsory arbitration is only admissible in relation to public servants exercising authority in the name of the State and in essential services the interruption of which would endanger life, personal safety or health); and

–           a special and very short summary procedure is introduced for workers with trade union immunity.

Moreover, in a direct request, the Committee observed previously that the Bill establishes a maximum limit for strikes of 45 calendar days (after which arbitration is compulsory).

With regard to the right to strike, the Committee also noted that a magistrate of the Supreme Court of Justice had indicated that of the 600 or so strikes that had occurred over the past 20 or 30 years, no more than ten had been declared lawful. Furthermore, according to trade union federations, the procedure to set a strike in motion could last up to three years.

The Committee notes that in its latest report the Government indicates that: (1) the Bill to reform labour procedures has been placed on the agenda of the Plenary of the Legislative Assembly as a result of the Government’s promotional activities; and (2) the establishment of a joint commission of the Legislative Assembly to further the Bill was decided upon and agreed to in the Higher Labour Council (a tripartite body).

Articles 2 and 4. The need for Bill No. 13475, in amending section 344 of the Labour Code, to establish a specific and short period during which the administrative authority is to reach a decision on the registration of trade unions and after which, in the absence of a decision, legal personality is deemed to have been obtained. The Committee notes the Government’s repeated indication in its latest report that in practice registration procedures are carried out without any delay and that, if they fall short of the legal documentary requirements, applicants are asked to remedy the matter and are entitled to appeal. The Department of Trade Union Organizations has 15 days within which to respond and, if it issues a favourable opinion within that period, the Ministry of Labour issues its decision as soon as possible thereafter, and in any event within one month of the report being issued. The Committee notes that, according to the Government, the issue raised by the Committee, in addition to being superseded in practice, is no longer valid in relation to the law, as the General Act on the public administration provides that, where the statutory time limits are not respected, those concerned may appeal to the respective higher authority. The Committee previously invited the Government to have these deadlines set out explicitly in Bill No. 13475 and notes the Government’s indication in its latest report that it has forwarded a copy of this request to the President of the Legislative Commission. The Committee requests the Government to indicate any developments in this respect.

Submission of legislative matters to a joint commission in the National Assembly. The Committee notes the Government’s indication in its report of its complete readiness and will to resolve the problems raised.

The Committee previously noted the initiatives taken by the high-level mission with a view to expediting the draft texts submitted to the Legislative Assembly on the matters raised by the Committee of Experts and that, when attending a special session of the Higher Labour Council (a dialogue body composed of some of the most important representatives of trade unions and employers and the Minister of Labour), the mission consulted its members and it was agreed unanimously to call on the Legislative Assembly to establish a joint commission with the technical assistance of the ILO to examine the Bill to reform labour procedures. It was also resolved that the Council would examine the other draft texts pending on labour matters with a view to studying them and facilitating their passage to the extent to which consensus was achieved.

The Committee hopes that the above joint commission in the National Assembly will address all pending matters without delay. The Committee requests the Government to provide information in this respect. The Committee notes that the Government has requested the technical assistance of the ILO to ascertain the conformity of the Bill to reform labour procedures (No. 15990) with the principles of Conventions Nos 87 and 98 and it suggests that such assistance should be provided as soon as the joint commission is established in the Legislative Assembly.

The Committee once again emphasizes that the pending matters raise important issues relating to the application of the Convention. Taking into account the various ILO missions that have visited the country over the years and the gravity of the problems, the Committee hopes to be in a position to note substantial progress in the near future in both law and practice. The Committee requests the Government to provide information on this matter in its next report.

Comments by trade union organizations. The Committee noted previously that the Union or Public and Private Enterprise Workers (SITEPP) indicates that the unionization rate in the country is only 2.5 per cent in the private sector and that the commitments made to the ILO over many years relating to the draft legislation submitted to the Legislative Assembly have only been vain promises. The Committee notes that, according to the Government, the unionization rate is 9.37 per cent. The Committee requests the Government to provide official statistical data on the number of trade unions and higher level organizations (in the public and private sectors) and the number of trade union members. The Committee also notes the Government’s reply to the previous comments of the ITUC referring to acts of violence against the premises of a trade union and death threats against a trade union leader. The Committee notes that it consists of a criminal matter (and not unfair labour practices), and that the judicial authorities are competent as the matter relates to acts of common vandalism.

Finally, the Committee requests the Government to provide its comments on the ITUC’s communication, dated 26 August 2009 and particularly on: (1) its allegation that in the event of a strike the unions are required to provide the names of the strikers; (2) its statement that unions are practically non‑existent in the private sector; (3) the alleged unlawful arrest of a trade union leader in the construction sector; and (4) the violation of the Act by prohibiting trade union activities by solidarist associations in certain banana and pineapple ranches.