Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee notes the observations of the Workers' Union of Banco Popular (SIBANPO), the Confederation of Workers Rerum Novarum (CTRN), as well as the joint observations of Juanito Mora Porras Trade Union Federation (CSJMP) and the National Association of Nursing Professionals (ANPE) received on 29 and 30 September, and 1 October 2020 respectively. The Committee notes that, in addition to addressing the matters examined in this comment, the observations refer to the impact that Act No. 9635 on strengthening public finances, in force since July 2019, and Bill No. 21336 on public employment would have on the exercise of the rights guaranteed by the Convention. Noting the repeated observations of trade union organizations denouncing the restrictions that run counter to the Convention to the right to collective bargaining of public servants not engaged in the administration of the State, the Committee requests the Government to provide its comments in this respect. It also requests it to provide information on the development of the aforementioned Bill on public employment and trusts that within its framework the guarantees of the Convention will be taken fully into account.

As it has not received supplementary information from the Government, the Committee reiterates the content of its comment adopted in 2019 and repeated as follows:

The Committee notes the Government’s replies to the 2014 observations of the International Trade Union Confederation (ITUC) and the 2016 observations of the CTRN. The Committee also notes the detailed observations of the CTRN, received on 31 August 2019, related to matters addressed by the Committee in the present comment. The Committee further notes the joint observations of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) and the International Organisation of Employers (IOE), received on 2 September 2019, and notes the Government’s reply to those observations.

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and interference. In its most recent comment, the Committee noted with satisfaction that Act No. 9343 on reforming labour procedures, which entered into force in July 2017, introduced amendments with the objective of making judicial procedures relating to acts of anti union discrimination more expeditious and effective. The Committee notes the Government’s indication that this Act introduced a special, expedited and preventive procedure for cases of anti-union discrimination, which are dealt with as a matter of priority and following a specific procedure, both by the administrative and judicial authorities. The Committee notes the statistical data provided by the Government and notes that: (i) between 2016 and 2019, the labour inspectorate processed a total of 67 cases of anti-union harassment or unfair labour practices; (ii) the procedures for these cases were before the administrative authorities for 104 days on average; (iii) between July 2017 and May 2019, a total of 207 files related to special protection cases were submitted to the judicial authorities, 59 of which were for anti-union discrimination; and (iv) on average, procedures for anti-union discrimination cases were before the judicial authorities for 128 days, from the submission of the file until the ruling of the Second Chamber of the Supreme Court of Justice. Recalling that, in previous years, the Committee noted that the slowness of procedures in cases of anti union discrimination resulted in a period of not less than four years being required to obtain a final court ruling, the Committee notes with satisfaction the statistical information provided by the Government, which bears witness to the practical impact of the procedural reform. The Committee also notes that the Government hopes to be able to provide information on the nature of the penalties and compensation at a later date. The Committee, encouraged by the developments regarding the length of procedures, requests the Government to continue providing statistics on the number of cases of discrimination examined and the length of the procedures, and also to provide information on the nature of the penalties and compensation imposed.

Article 4. Collective bargaining in the public sector. Public servants not engaged in the administration of the State. The Committee recalls that, for many years, it has been expressing concern with regard to the frequent use of legal actions for unconstitutionality to challenge the validity of collective agreements concluded in the public sector. In its last comment, the Committee had taken note that the Office of the Comptroller General of the Republic had lodged a legal action for unconstitutionality against a collective agreement of a public sector bank and that the legal action was still pending. The Committee notes that this issue was examined recently by the Committee on Freedom of Association in Case No. 3243 and refers to the recommendations made by that Committee in its 391st report of October 2019. The Committee also notes the Government’s indication that it is continuing to implement the policy for the revision of collective agreements in the public sector, initiated in 2014, with the objective of avoiding recourse to legal procedures and seeking, through social dialogue, to streamline and adapt them to the country’s fiscal reality and austerity policy. The Government further indicates that the parties, after denouncing their collective agreements, renegotiate a new agreement, in line with the parameters of reasonableness and proportionality established by the Constitutional Chamber, which diminishes the possibility of the collective agreements being challenged later through constitutional action. In this regard, the Government reports that, during 2018 and until May 2019, the Department of Labour Relations of the Directorate of Labour Affairs approved 19 collective agreements in the public sector. The Committee also notes that, in its observations, the CTRN denounces a series of violations to the right of public servants to negotiate collectively their terms and conditions of employment. The Committee notes that the issues to which the CTRN refers to in its observations, coincide with the issues that are the subject of a representation made under article 24 of the ILO Constitution, which is pending.

The Committee emphasizes that, for many years it has been examining a number of obstacles to the full implementation of Article 4 of the Convention in the country’s public sector. The Committee recalls, in this regard, that all workers in the public sector who are not engaged in the administration of the State (for example, employees in public enterprises, municipal employees and those in decentralized entities, public sector teachers and transport sector personnel) shall enjoy the right to collective bargaining, including with respect to wages, and that while the special characteristics of the public service require some flexibility, there are mechanisms through which compliance with budgetary limitations can be reconciled with the recognition of the right to collective bargaining.

Recalling its previous observations, the Committee trusts that the Government, in consultation with the representative trade unions in the sector, will take the measures at its disposal to strengthen the right to collective bargaining of public servants not engaged in the administration of the State. The Committee requests the Government to report on any action taken in this regard.

Direct agreements with non-unionized workers. In its previous comments, the Committee noted with concern that, while the number of collective agreements in the private sector remained very low, the number of direct agreements with non-unionized workers was very high. The Committee also noted Ruling No. 12457-2011, which confirmed that direct agreements could not prejudice the negotiation of collective agreements and, consequently, the exercise of freedom of association. In this respect, the Committee notes the Government’s indication that compliance with this ruling is mandatory, for both the administrative and judicial authorities and that, accordingly, on 2 May 2012, the labour inspectorate issued Circular No. 018-12, addressed to all the officials of the labour inspectorate, indicating that, in the event that there is a trade union organization and a permanent workers’ committee, the inspector shall ensure that there is no violation of freedom of association, and in the event of any conflict or discord that warrants any type of negotiation or conciliation, the inspector shall inform the Directorate of Labour Affairs so that it may follow the applicable procedure under the terms of Ruling No. 12457-2011. The Committee takes note of the statistical data provided by the Government and notes that: (i) between 2014 and April 2019, an average of 30 collective agreements per year were concluded in the private sector and 80 collective agreements per year in the public sector; and (ii) in the period from 2014 to August 2018, an average of 160 direct agreements per year were concluded. The Committee also notes that, while in 2018 some 83 collective agreements were concluded in the public sector and 33 collective agreements in the private sector, covering 153,037 and 14,346 workers respectively, in the same year, 180 direct agreements were concluded, covering 48,239 workers. The Commission further notes that the number of direct agreements has increased over the years: from 118 direct agreements in 2014, to 180 direct agreements in 2018. The Committee recalls that it has always considered that direct bargaining between the enterprise and unorganized groups of workers, in avoidance of workers’ organizations, where they exist, is not in accordance with the promotion of collective bargaining, as set out in Article 4 of the Convention. The Committee has also noted that in practice the negotiation of terms and conditions of employment and work by groups which do not fulfil the guarantees required to be considered workers’ organizations can be used to undermine the exercise of freedom of association and weaken the existence of workers’ organizations with the capacity to defend the interests of workers independently through collective bargaining. Noting that the number of direct agreements has increased considerably in comparison to the number of collective agreements in the private sector, the Committee requests the Government to take all necessary measures, including of a legislative nature, to step up the promotion of collective bargaining with trade union organizations within the meaning of the Convention. The Committee also requests the Government to provide information on the impact of Circular No. 018-12 of the Labour Inspectorate, as well as any other measures adopted in light of Ruling No. 12457-2011.