Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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) of August 2011 concerning the application of the Convention. The Committee notes the report of the high-level technical assistance mission which visited San José in May 2011 in the context of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

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 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 shall be 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 along the lines requested by the ILO, had been submitted to the Legislative Assembly in 1998, but was shelved in 2009.

The Committee notes the Government’s indication in its report that, on 30 July 2010, a group of deputies once again submitted a Bill to amend article 60 of the Constitution, along the lines requested by the Committee, and that if it is approved it would involve the amendment of section 345 of the Labour Code, to guarantee equality of conditions for foreign nationals in access to trade union office. The Committee expresses the firm hope that the new Bill to reform the Constitution will be adopted in the very near future and it requests the Government to provide information in that regard.

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 repeated 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. The Government adds that, in view of the examination of another Bill (to reform labour procedures) by the Legislative Assembly, Bill No. 13475 has not become law. The Committee requests the Government to take measures to amend section 346(a) of the Labour Code so as to adapt it to the practice followed by the authorities, and to provide information in this respect.

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 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 on docks and quays” – section 373(c) of the Labour Code.

The Committee noted previously the Government’s indication that the Bill to reform labour procedures, which benefited from ILO technical assistance, had been submitted to the Legislative Assembly, was supported by the trade unions and employers’ associations, with the exception of certain provisions, and took into account the recommendations of the ILO supervisory bodies. The Committee observed that the Bill:

• – proposes 40 per cent of the workers of the enterprise 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 (the Government emphasizes that this is already established by jurisprudence, and that trade unions are now heard during judicial procedures);
• – 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);
• – a special very short summary procedure is introduced for workers with trade union immunity; and
• – the maximum limit for strikes is set at 45 calendar days (following which arbitration is compulsory).

The Committee emphasizes that, despite the improvements introduced in the Bill in relation to the legislation that is currently in force, it would be necessary to make certain additional modifications to achieve full conformity with the Convention.

Also with regard to the right to strike, the Committee noted previously 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 unlawful. Furthermore, according to the trade union confederations, the procedure to set a strike in motion could last around three years.

The Committee notes the Government’s indication in its report that 234 amendments were submitted in 2011 to the Bill to reform labour procedures due to differences of views in the Legislative Assembly and that the achievement of consensus always requires time. The Committee notes that the report of the ILO mission undertaken in May 2011 in Costa Rica in the context of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), indicates that the mission promoted the Bill in the official meetings of the Legal Affairs Commission of the Legislative Assembly.

The Committee regrets to observe once again that the Bills submitted to the Legislative Assembly to achieve greater conformity between the legislation and the Convention on very important matters that are not meeting with success. The Committee requests the Government to continue promoting the Bill to reform labour procedures and to provide information on this subject.

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 Government reiterates in its latest report that in practice registration procedures are carried out without any delay and that, if applications fall short of the legal documentary requirements, applicants are asked to remedy the defects and are entitled to appeal. The legal time limits are 15 days for the Department of Trade Union Organizations 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 of 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. The Committee observes once again that the Bill is before the Legislative Assembly, but is not being examined, and it requests the Government to provide information on any developments in this respect.

Submission of legislative matters to a joint commission in the Legislative Assembly. Taking into account the differences of views in the Legislative Assembly on the content of the future Act to reform labour procedures (Bill No. 15990 and the other bills relating to trade union rights), the Committee once again requests the Government to promote a joint commission in the Legislative Assembly with representation of trade unions and employers, as proposed by the Higher Labour Council (a tripartite body) to the Legislative Assembly, to address controversial matters. The Committee reminds the Government that ILO technical assistance is at its disposal in this process with a view to contributing to bringing the legislation into full conformity with the Convention.

Taking into account the various ILO missions which have visited the country over the years and the gravity of the problems, the Committee, while expressing disappointment at the lack of results in relation to the pending issues, also expresses the hope that it will 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 in this respect in its next report.

Comments by trade union organizations. The Committee previously requested 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 ITUC had indicated that trade unions were practically non-existent in the private sector). The Committee notes the Government’s indication in its report that the unionization rate has risen from 8.3 per cent (2007) to 10.3 per cent (2010), representing a total of 195,950 union members (of which 72,382 are in the private sector). According to the Government’s statistics, there are 281 unions, of which 127 are active in the private sector.

Finally, the Committee requested the Government to provide its observations 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) the alleged unlawful arrest of a trade union leader in the construction sector; and (3) the violation of the Act which prohibits trade union activities by solidarist associations in certain banana and pineapple ranches.

The Committee notes the Government’s indication that the (temporary) arrest of the person mentioned by the ITUC is not related to his trade union activities, but to his unlawful migrant status in the country; the refusal of his application for a residence permit had been notified to him in October 2004. The Committee notes the Government’s indication that it has requested comments from enterprises in the banana and pineapple sector so that they can reply to the ITUC’s allegations, which it considers to be unfounded, as details are not provided of the alleged violations of trade union rights. The Committee awaits this information and the Government’s reply to the ITUC’s allegation that in the event of a strike the unions are required to provide the names of the strikers.

The Committee notes the comments of the Union of Medical Science Professionals of the Costa Rican Social Security Fund (SIPROMECA) of July 2011 and the Government’s reply. The Committee also notes the comments of the Confederation of Workers Rerum Novarum (CTRN) of 31 August 2011 and those of the ITUC of August 2011 and requests the Government to provide its replies.