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Comments adopted by the CEACR: Costa Rica

Adopted by the CEACR in 2022

C094 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Articles 2 and 5 of the Convention. Inclusion of labour clauses in public contracts. Supervisory measures and sanctions. In reply to the Committee’s previous comments, the Government indicates that a sworn declaration is required from all bidders involved in the procurement of goods and services for the Ministry of Finance. In the sworn declaration, contractor undertakes to ensure decent work and comply with fundamental rights and principles at work in line with the provisions of the ILO fundamental Conventions. In particular, the contractor undertakes to respect the principles regarding freedom of association and collective bargaining, the abolition of forced labour, the elimination of child labour and the elimination of discrimination in employment and occupation. Such conditions must be maintained throughout the duration of the contract. The Government provides a list of contracts awarded in 2019 which included the above-mentioned terms. The Government also indicates that other types of contract include other social and sustainable criteria such as an admissibility requirement or evaluation factors. For example, with regard to the rental of property by the Administration, such property must meet the requirements of the Act on equal opportunities for persons with disabilities regarding measures to eliminate physical obstacles in order to ensure accessibility for persons with disabilities. However, the Committee notes that the Government does not provide any examples of public contracts that include clauses ensuring to the workers concerned wages (including allowances), hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried on (Article 2(1) of the Convention). As regards the implementation of the “National policy on sustainable public procurement”, the Government states that the Directorate of Supplies and Administrative Contracting at the Ministry of Finance is responsible for coordinating the necessary actions for implementing this policy, and also for establishing the National Steering Committee on Sustainable Procurement. The Government adds that, in line with the principle of regulatory centralization and operational decentralization, each contracting administration is responsible for carrying out its administrative procurement procedures and for evaluating them, in line with the legislation in force and the guidelines established by the above-mentioned Directorate. The Committee also notes the adoption of Executive Decree No. 42709 of 9 October 2020, which provides for the adoption of measures to encourage the participation of enterprises, including small and medium-sized enterprises (SMEs) and enterprises in the social economy, in government procurement, according to location and sustainability criteria. In this regard, section 3 of the Executive Decree establishes the following criteria to be followed with respect to public works: “(a) encourage the participation of enterprises and formally constituted organizations in the social economy as individual bidders or as a consortium in public procurement; (b) promote procurement through enterprises or organizations in the social economy located in socio-economically disadvantaged areas or located in or close to geographical areas where the services to be provided by the contract are required; and (c) foster, through public procurement, the creation of employment for social groups in vulnerable situations, such as persons with disabilities, women and young adults, with the purpose of creating greater social inclusion”. Lastly, the Committee notes that the Government has attached to its report an inspection and prevention record from the inspectorate of the Central-Pacific region (Puntarenas office), which includes information on offences recorded at an enterprise which was carrying out public works for the Ministry of Health. However, the Committee notes that the Government does not provide any statistical information on the number and type of offences detected at the national level. The Committee requests the Government to send examples of contracts concluded by the public authorities that contain the labour clauses prescribed by the “Guide to labour criteria in contracting procedures in Costa Rica”, in particular those which establish the obligation to ensure to the workers concerned wages (including allowances), hours of work and other conditions of labour which are not less favourable than those established for work of the same character in the trade or industry concerned in the district where the work is carried on (Article 2(1) of the Convention). The Committee also requests the Government to send detailed, up-to-date information on the impact of Executive Decree No. 42709 of 9 October 2020 on contracts concluded by the public authorities, including the rate of participation of SMEs and social enterprises in government procurement. It also requests the Government to provide up-to-date information on the application of the Convention in practice, including extracts of inspection reports and information on the number and type of offences recorded throughout the country.

Adopted by the CEACR in 2021

C138 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the Confederation of Workers Rerum Novarum (CTRN), received on 31 August 2021.
Article 1 of the Convention. National policy and application of the Convention in practice. The Committee notes the indication of the CTRN that: (i) according to data for 2020 from the Costa Rican National Institute of Statistics (INEC), the average age of working children and young persons is 13.5 years, despite 15 years being specified as the minimum age by the Government; (ii) INEC records a total number of 6,706 working children between 12 and 17 years of age, 30.9 per cent of whom do not attend school.
The Committee notes the statistical information of the Office for the Prevention and Elimination of Child Labour and the Protection of Juvenile Workers (OATIA) in the Government’s report. In 2019, out of a total of 353 children under 18 years of age who were recorded as engaging in work, 94 of them were under 15 years of age. The Government indicates that most of these children were involved in fishing, agriculture and construction, and that they have been removed from work.
The Committee also notes the Government’s indication, in response to its request for information relating to its previous comments, that the National Roadmap Strategy 2010–20 for the prevention and elimination of child labour and the worst forms thereof was officially published in June 2018 (No. 41172-MTSS). It notes that OATIA carried out a number of activities in connection with its implementation.
The Committee further notes that, according to the Government’s report, as part of the Regional Initiative for No Child Labour in Latin America and the Caribbean, two measurement instruments have been designed, in conjunction with the ILO Regional Office for Latin America and the Caribbean and the United Nations Economic Commission for Latin America and the Caribbean, namely: (i) the child labour risk identification model; and (ii) the child labour vulnerability index. Both these tools enable the identification of the regions most at risk of child labour, but also the association of various factors with a view to defining which multisectoral actions are the most effective for contributing to the elimination of child labour. These are based on the roadmap and on the Ministry of Labour’s Institutional Strategic Plan 2018–22, which establishes a specific objective regarding the identification of areas at risk of child labour. The Committee requests the Government to provide detailed information on the regional measures and actions taken as part of the Regional Initiative for No Child Labour in Latin America and the Caribbean. It also requests the Government to continue providing detailed statistics on the nature, extent and trends of labour involving children and young persons who have not reached the minimum age specified by the Government at the time of ratification of the Convention, namely 15 years.
Article 3(1) and (2). Minimum age and determination of hazardous work. The Committee notes that, according to the Government’s report submitted in relation to the Worst Forms of Child Labour Convention, 1999 (No. 182), a bill is being drafted with a view to amending Act No. 8922 of 25 March 2011 on the participation of minors in public performances and in various activities in the fishing sector. The Committee requests the Government to provide information on any new developments regarding the planned legislative amendment and its application in practice.

C182 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the Confederation of Workers Rerum Novarum (CTRN), received on 31 August 2021.
Articles 3(d) and 7(2)(b) of the Convention. Worst forms of child labour and effective time-bound measures. Hazardous work and. . removing children from such work and ensuring their rehabilitation and social integration. Child domestic labour. In its previous comments, the Committee asked the Government to take the necessary steps to ensure that the legislation on hazardous types of work is effectively enforced in order to prevent young domestic workers under 18 years of age from performing hazardous work, and to indicate the number and type of violations detected and the number of persons prosecuted. The Committee also asked the Government to indicate the effective and time-bound measures taken to provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration.
The Committee notes the observations of the CTRN, which highlights the fact that child domestic work is often done without remuneration and is largely carried out by migrant children. The CTRN calls for a survey of child domestic labour to be carried out and for more comprehensive action by the Government.
The Committee also notes the statistics issued by the National Labour Inspectorate (DNI), which are contained in the Government’s report. Out of four cases of child domestic labour detected between January and June 2021, two cases are concerned with domestic work. The Committee notes that the United Nations Committee on the Rights of the Child, in its concluding observations of 4 March 2020 relating to the fifth and sixth periodic reports of Costa Rica, expressed concern at reports of the worst forms of child labour, particularly the employment of girls in domestic work and the employment of young persons in the informal economy. Noting the lack of information on the measures taken and the lack of statistical data on children in domestic work, the Committee once again requests the Government to provide detailed information on the measures taken to ensure that the legislation on hazardous types of work is effectively enforced in order to prevent young domestic workers under 18 years of age from performing hazardous work, and to indicate the number and type of violations detected and the number of persons prosecuted. Once again noting the absence of specific information on this point, the Committee also requests the Government to indicate the effective and time-bound measures taken to provide the necessary and appropriate direct assistance for the removal of these children from hazardous labour and for their rehabilitation and social integration.
Article 5. Monitoring mechanisms. Labour inspection. In its previous comments, the Committee asked the Government to keep it informed of the drafting and adoption of Bill No. 19130 to reinforce the application of labour standards by empowering the labour inspectorate to impose penalties so as to eliminate the need to bring all cases before the judiciary. It also asked the Government to provide information on the other measures adopted to reinforce the labour inspection system and to ensure the effective enforcement of the legislation.
The Committee notes the observations of the CTRN, which considers that the already low number of labour inspectors in the DNI has decreased and also observes a decrease in the number of inspections carried out by the DNI. However, the Committee notes that the Government in its report highlights the 25 per cent increase since 2016 in the budget allocated to the DNI, which, according to the Government, has increased the total number of labour inspectors (from 88 in 2017 to 122 in 2018), of offences detected (from 20,398 in 2016 to 29,339 in 2018) and of employees monitored (from 200,645 in 2016 to 300,000 in 2018).
The Committee also notes that Bill No. 19130 has been replaced by Bill No. 21185, aimed at modernizing the inspection framework to facilitate the work of labour inspectors. The Bill proposes a system of administrative penalties for labour offences, depending on whether they are classified as minor, serious or very serious. A register of repeat offences will also be proposed. The Committee further notes the setting up of a labour inspection school in 2019. Moreover, it notes the strengthening of coordination between the various agencies linked to the labour market, such as the Costa Rican Social Security Fund (CCSS), the DNI and the National Insurance Institute (INS), in the context of the national strategy for the transition to the formal economy. The Committee therefore encourages the Government to continue its efforts to reinforce the labour inspectorate in order to improve labour inspectors’ capacity to identify the worst forms of child labour. It requests the Government to provide information in this regard and also the results achieved, including the penalties imposed. It further requests the Government to keep it informed with respect to the drafting and adoption of Bill No. 21185.
Article 6. Programmes of action. In its previous comments, the Committee asked the Government to continue providing information on the implementation of the programmes and measures envisaged to achieve the objectives of the 2015–20 roadmap, and on the statistics compiled through the integrated national information system on child labour.
The Committee notes that in 2018, according to the Government’s report, various actions contained in the roadmap were implemented, including: assisting children by means of monetary transfer programmes; training officials in a number of ministries; the signing of a cooperation agreement between the Ministry of Labour and Social Security and the trade unions in order to incorporate actions for combating child labour and the worst forms thereof in trade union policy objectives; and the creation of the network of enterprises for the elimination of child labour. Moreover, four new components were added to the Puente al Desarrollo II (“Bridge to development II”) national strategy, linking work, agriculture, the community and prevention to the social protection of communities and families. The Committee requests the Government to continue providing information on the implementation of programmes in progress, and on the statistics compiled through the integrated national information system on the worst forms of child labour, disaggregated by age and gender.
Article 7(2). Effective and time-bound measures. Clause (a) Preventing the engagement of children in the worst forms of child labour. Trafficking of children and commercial sexual exploitation of children. In its previous comments, the Committee asked the Government to provide information on the specific results achieved as a result of the various coordination measures taken by national and international institutions to prevent children from becoming victims of trafficking and commercial sexual exploitation.
The Committee notes the statistics on the trafficking and sexual exploitation of children communicated by the National Foundation for Children (PANI). In June 2020, PANI registered 20 children between 9 and 12 years of age as victims of sexual exploitation; these children received comprehensive care from non-governmental organizations.
The Committee also notes the process for updating the 2017 protocol on child labour through consultations held in collaboration with the International Organization for Migration (IOM), the National Coalition against Migrant Smuggling and Human Trafficking (CONATT), and various state entities, in order to reinforce the protocol at the internal level. The Committee also notes various training courses for civil servants carried out in 2019, and also the creation of an institutional technical committee to take action within the Ministry of Labour and Social Security to address the issue of trafficking in persons. The Committee encourages the Government to continue its efforts to prevent children becoming victims of commercial sexual exploitation and requests it to continue providing statistical data on cases of child victims of trafficking and sexual exploitation, disaggregated by age and gender.
Article 8. International cooperation and assistance. Trafficking for commercial sexual exploitation. In its previous comments, the Committee asked the Government to indicate in detail the activities undertaken by the bipartite commission responsible for establishing and coordinating mechanisms to provide protection for young migrants, and particularly its international cooperation and assistance activities, and to indicate the measures adopted by PANI to protect and repatriate young migrants. The Committee also asked the Government to provide statistics on the number of child victims who have been identified and then repatriated to their country of origin.
The Committee notes the statistics from PANI, in the Government’s report, concerning the repatriation by region of children between 2017 and June 2020. A total of 2,310 repatriations were carried out, with 309 in 2017, 770 in 2018, 767 in 2019, and 464 from January to June 2021. The Committee indicates that, according to the IOM World Migration Report 2020, one of the most prominent intraregional migration corridors involves Nicaraguans, Panamanians and nationals of other Central American countries moving to Costa Rica. The Committee therefore requests the Government to continue its efforts to protect and repatriate young migrants. It requests the Government to continue providing information on the activities undertaken, particularly its international cooperation and assistance activities. The Committee also requests the Government to provide detailed statistics on the number of child victims, disaggregated by age and gender, who have been identified and then repatriated to their country of origin.

C182 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the Confederation of Workers Rerum Novarum (CTRN), received on 31 August 2021.
Article 3(a) and (b) of the Convention. Worst forms of child labour. Sale and trafficking of children for commercial sexual exploitation; use, procuring or offering of a child for prostitution. The Committee previously requested the Government to intensify its efforts to ensure the thorough investigation and robust prosecution of persons who commit criminal acts such as the sale and trafficking of children for commercial sexual exploitation, and to ensure that assistance is provided to children in all cases. The Committee requested the Government to indicate the measures taken to implement the provisions of Act No. 9095 related to child victims of trafficking, and to indicate the number of investigations, prosecutions, convictions, and the penalties imposed in this regard.
The Committee notes that, according to CTRN, despite progress in combating the trafficking of children and young persons, the efforts made by the Government are inadequate, in view of the low number of convictions in cases of trafficking of children for commercial sexual exploitation.
The Committee notes, in the Government’s report, various amendments to the Penal Code concerning child victims of trafficking: (i) the amendment to Act No. 9685 of 21 May 2019, extending the limitation period for prosecutions in cases of sexual offences against minors; (ii) the amendment to sections 172 and 189 of Act No. 4573, increasing the length of prison sentences in cases of trafficking of children; and (iii) the amendment to section 5 of Act No. 9095 concerning the definition of types of trafficking to which children are subjected.
The Committee also notes that in 2018 the Office of the Deputy Prosecutor against trafficking in persons and migrant smuggling improved the institutional response at the local level, establishing “liaison prosecutors” in 23 territories in Costa Rica most affected by the trafficking of children. Local and inter-institutional teams for combating the trafficking of persons have also been set up, involving the prosecution authorities, the criminal investigation police, the Office for the Care and Protection of the Victims of Crimes, and the administrative, border and migration police forces in certain priority areas. The Committee notes that the Ministry of Public Education, as an active member of the National Coalition against Migrant Smuggling and Human Trafficking (CONATT), has developed a programme called “Training strategy for the teaching and student community for protection against child labour and its worst forms, trafficking in persons and migrant smuggling”. In 2019, a total of 553 persons were trained in these subjects by means of 20 workshops in seven regions of Costa Rica. CONATT also conducted awareness-raising courses for 500 local judiciary officials and representatives of civil society through the production of a training manual on offences related to the trafficking of persons for labour exploitation.
The Committee notes the different sources of statistical data between 2017 and 2019 concerning the trafficking of children for commercial sexual exploitation: (i) in 2017, the judiciary’s Directorate of Planning recorded a total of 137 complaints filed with the Public Prosecutor’s Office and the Judicial Investigation Agency, which resulted in 23 convictions and three acquittals; (ii) the 2019 report on the trafficking of persons indicates that the CONATT rapid response team recorded that there were two girls among 14 victims of trafficking for sexual exploitation; (iii) statistics for 2019 from the judiciary’s Gender-Based Violence Observatory, cited in the CTRN report, indicate a total of 32 victims of human trafficking (28 girls and four boys), 48 victims of pimping (36 girls and 12 boys), including nine cases of aggravated pimping and 58 cases of paid sexual relations with minors (44 girls and 14 boys); (iv) the 2019 report from the Directorate-General for Migration and Foreigners on trafficking in persons, which is attached to the Government’s report, indicates that out of 62 trafficking victims, two girls were victims of sexual exploitation and two girls were victims of domestic servitude. The Committee welcomes the Government’s efforts to combat the trafficking and commercial sexual exploitation of children. The Committee requests the Government to continue providing detailed information on the number of investigations, prosecutions, convictions and penalties imposed in this regard.
Article 7(2). Effective and time-bound measures. Clauses (a) and (c). Preventing children from becoming engaged in the worst forms of child labour and ensuring access to free basic education for all children removed from the worst forms of child labour. The Committee previously asked the Government to intensify its efforts to improve the operation of the education system through the Avancemos (“Let’s move forward”) and Yo me apunto (“I’m enrolling”) programmes to increase the school attendance and completion rates. It also asked the Government to indicate the results achieved through these two programmes and the National Scholarship Fund (FONABE), including the number of children, disaggregated by age and gender, who have been removed from the worst forms of child labour and reintegrated into the education system as a result of these programmes.
The Committee notes the indication in the Government’s report that the number of working minors aged between 5 and 17 years has decreased as a result of the coordination of different actions such as: (i) the Puente al Desarrollo II (“Bridge to development II”) national strategy; (ii) the use of scholarships and conditional money transfers enabling students to remain in the education system; (iii) a cooperation agreement between the Joint Social Assistance Institute (IMAS) and the Ministry of Labour and Social Security; and (iv) the Yo me apunto programme of the Ministry of Public Education. The Government also refers to a reduction in the child employment rate, which also coincides with an increase in the integration of persons under 18 years of age in the education system, compared with 2011.
The Committee also notes that, according to IMAS data for 2019, bursary funds and items for nursery and primary schools from FONABE have been transferred to IMAS for the purpose of a conditional monetary transfer programme called Crecemos (“We’re growing”), set up in 2019. A total of 188,960 children under 12 years of age and a total of 19,216 children between 13 and 18 years of age have been the beneficiaries of this programme. The Committee also notes the statistics of the Avancemos programme: the number of beneficiary children under 12 years of age was 60 in 2017; 88 in 2018; and 68 in 2019; as regards children between 13 and 18 years of age, the number of beneficiaries was 153,839 in 2017; 151,028 in 2018; and 148,696 in 2019. In 2020, a total of 157 children (48 girls and 109 boys) also benefited from this programme. While noting the Government’s efforts to improve access to free basic education for the most vulnerable children, to prevent their involvement in the worst forms of child labour, the Committee requests the Government to provide information on the school enrolment, attendance and completion rates in primary and secondary education, and also the school drop-out rate, including for the most vulnerable children. The Committee also requests the Government to indicate the number of children, disaggregated by age and gender, who have been removed from the worst forms of child labour and reintegrated in the education system through these programmes.
The Committee is raising other matters in a request addressed directly to the Government.

Adopted by the CEACR in 2020

C087 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020) which concerns matters addressed in the direct request, which accompanies this observation.
The Committee also notes the observations of the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP) transmitted by the Government, as well as the observations of the International Trade Union Confederation (ITUC), received on 16 September 2020, the Confederation of Workers Rerum Novarum (CTRN) and the National Association of Nursing Professionals (ANPE), both received on 30 September 2020, all relating to the matters raised by the Committee in its direct request. The Committee requests the Government to provide its comments in relation to the observations of the CTRN, ITUC and ANPE, as well as in relation to the observations of the CTRN of 2019.
The Committee reiterates the content of its observation adopted in 2019, which is repeated below.
In its latest comment, the Committee took note of the adoption of the Labour Proceedings Reform Act No. 9343 and noted with satisfaction that the Act amended the percentage of workers required to declare a strike. The Committee notes the Government’s indication that, in November 2017, Executive Decree No. 40749 was issued, which regulates the call to vote required in order to exercise the right to strike, in accordance with the provisions of the Labour Proceedings Reform Act.
Pending legislative issues. Articles 2 and 4 of the Convention. The Committee recalls that for years its comments have referred to the following issues:
  • -Registration of trade unions and acquisition of legal personality. The Committee indicated to the Government the need to amend section 344 of the Labour Code to establish a short, specific period for the administrative authority to reach a decision on the registration of trade unions, after which, in the absence of a decision, they are deemed to have obtained legal personality. In this regard, the Committee notes the Government’s indication that, although this situation has been remedied both in practice and in administrative law, the Committee’s comments will be taken into account.
  • -Right of organizations freely to elect their representatives. Obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee has drawn the attention of the Government to the need to amend section 346(a) of the Labour Code, which requires the executive board of trade unions to be appointed every year. In this regard, the Committee notes the Government’s indication that although this article has not been amended, the Register of Civil Organizations does not apply this provision and the Ministry of Labour and Social Security, in practice, guarantees organizations full autonomy in determining the term of their executive boards.
  • -Prohibition on foreigners from holding office or exercising authority in trade unions (article 60(2) of the Constitution and section 345(e) of the Labour Code). The Committee indicated to the Government the need to amend article 60(2) of the Constitution and section 345(e) of the Labour Code, which prohibit foreigners from holding office or exercising authority in trade unions. The Committee recalls that a proposed constitutional reform had been submitted to the plenary of the Legislative Assembly to resolve this issue (legislative file No. 17804). The Committee notes the Government’s indication that the above-mentioned proposed constitutional reform was shelved on 17 October 2018. The Government indicates that this decision followed a decision made by the Speaker of the Legislative Assembly, who ordered that bills that had exceeded the four-year deadline on that date should be shelved, in conformity with section 119 of the Regulations of the Legislative Assembly. The Government also indicates that it will undertake an assessment to consider the submission of a new constitutional reform proposal in the terms referred to by the Committee. The Government adds that, in practice, the Department of Civil Organizations in the Ministry of Labour and Social Security registers the appointment of foreigners to the executive bodies of trade unions when it is demonstrated that they comply with the legal requirements.
Observing that no specific progress has been made in relation to the matters indicated, the Committee once again requests the Government to take all necessary measures to amend the above-mentioned provisions of the Labour Code and the Constitution in conformity with the Convention, as well as with the practice followed by the authorities. It requests the Government to provide information on developments in this respect.
The Committee is raising other matters in a request addressed directly to the Government.

C087 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 3 of the Convention. Right of organizations to freely organize their activities and formulate their programmes. The Committee recalls that it has for years been indicating to the Government the need to remove the prohibition of the right to strike from workers engaged in rail, maritime and air transport enterprises and workers engaged in loading and unloading on docks and quays established under section 376(c) of the Labour Code. In its previous comments, the Committee noted that: (i) as reported by the Government, the Constitutional Chamber of the Supreme Court of Justice found section 376(a), (b) and (e) of the Labour Code on the prohibition of strikes in the public services to be unconstitutional (ruling No. 01317-1998) and (ii) the Labour Proceedings Reform Act did not amend section 376 of the Labour Code.
In its previous comment, the Committee noted that the Government, in its report, reiterated that the question of section 376(c) of the Labour Code had been examined by the Constitutional Chamber in the context of ruling No. 01317-1998 and that the national legislation was in conformity with that decision. The Committee noted, nevertheless, that in their observations, the Confederation of Workers Rerum Novarum (CTRN), the Costa Rican Union of Chambers and Associations of Private Enterprises (UCCAEP) and the International Organisation of Employers (IOE) indicated that Bill No. 21049 on the provision of legal security during strikes and associated procedures, which seeks, inter alia, to amend section 376(c) of the Labour Code, was at that time being debated in Parliament. The Committee also noted that on 25 October 2019, the Constitutional Chamber of the Supreme Court of Justice had issued a decision in relation to an advisory legislative consultation on Bill No. 21049. The Committee noted the text of the Bill and, after commenting on several of its provisions, requested the Government to take all necessary measures to ensure conformity of the legislation and any legislative reforms with the Convention.
The Committee notes that, in its supplementary report, the Government indicates that Act No. 9808 on the provision of legal security during strikes and associated procedures, legislative file No. 21049, was enacted on 21 January 2020. The Government indicates that: (i) the Parliamentary committee responsible for drawing up the Act met with hundreds of social actors and most representative trade unions, which led to the text being refined and, in certain cases, agreed; (ii) the aforementioned committee also received hundreds of amendment proposals from the Legislative Assembly, which were accepted, rejected or withdrawn; and (iii) following certain adjustments owing to constitutional inconsistencies in some areas, the Bill was approved in second debate on 16 January 2020 and was enacted on 21 January of the same year. The Committee notes that, while the UCCAEP indicates in its observations that it fully supported the Act as it considers that it introduced new regulations on strikes, the CTRN, the International Trade Union Confederation (ITUC) and the National Business Association (ANEP) consider that the Act is extremely regressive on the right to strike, thus violating the Convention.
The Committee welcomes the fact that, in line with what the ILO supervisory bodies have consistently maintained, the amended version of section 376 of the Labour Code contained in the Act defines essential public services as those services the suspension, interruption or shutdown of which could cause significant harm to the rights to life, health and public safety. The Committee notes, however, that the section concerned contains a list of essential public services where strike action is prohibited and observes that some of these do not constitute essential services in the strict sense of the term, such as transport services in general, including rail and sea transport, loading and unloading services for perishable foodstuffs, pharmacies, scheduled medical appointments and care, as well as fuel distribution. The Committee recalls that while what is meant by essential services in the strict sense of the word depends to a large extent upon the particular circumstances in each country, the definitive criterion for the classification of essential services in the strict sense is the existence of a clear and present threat to the life, safety or health of all or part of the population. The Committee further recalls that, in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, consideration might be given to ensuring that users’ basic needs are met or that facilities operate safely or without interruption, the introduction of a negotiated minimum service, as a possible alternative to a total prohibition of strikes, could be appropriate (see the 2012 General Survey on the fundamental Conventions, paragraph 136).
The Committee also notes that the amended version of section 376ter of the Code lists services of vital importance, defined as those the suspension or stoppage of which, due to their strategic importance for the socio-economic development of the country, would entail significant damage to the living conditions of all or part of the population. The Committee notes that the above-mentioned section provides that the holding of a strike in services of vital importance shall be conditional upon the provision of minimum services defined through an agreement between the parties and that the maximum duration of a strike in those services shall be 10 calendar days (21 days in education services, or 10 intermittent days), after which if no agreement resolving the conflict is reached the matter shall be referred for binding arbitration. In this regard, the Committee considers that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable under certain circumstances, namely: (i) when the two parties to the dispute so agree; or (ii) when the strike in question may be restricted, or even prohibited, that is: (a) in the case of disputes concerning public servants exercising authority in the name of the State; (b) in conflicts in essential services in the strict sense of the term; or (c) in situations of acute national or local crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation. Accordingly, the existence of protracted disputes and the failure of conciliation are not per se elements which justify the imposition of compulsory arbitration (see the 2012 General Survey on the fundamental Conventions, paragraph 153).
With regard to loading and unloading services on docks and quays, the Committee notes that the Act classifies the loading and unloading of medicines, medical supplies or equipment and perishable goods as essential services and the loading and unloading of other goods on docks and quays as services of vital importance. The Committee recalls that it would be possible to establish a minimum service for all loading and unloading services in docks and quays that would ensure public access to medicines and medical equipment.
Furthermore, the Committee reiterates its unease in relation to the amendments introduced by the Act to the following provisions of the Labour Code:
  • -section 371, imposing a maximum duration of 48 hours for strikes held in protest against public policies, whenever these have a direct impact on the economic and social interests of workers. In this regard, the Committee notes that in its observations, the ANPE states that this limitation on the duration of the strike is not in harmony with freedom of association since, in addition, by setting a totally unreasonable and disproportionate time limit, it is implied that, by default, the effectiveness of the measure of pressure inherent in a strike is quashed. The Committee also recalls that the CTRN, the UCCAEP and the IOE mentioned that in 2018, following the adoption of a Bill on tax reform, the longest strike in the history of the country took place, lasting almost three months. According to the CTRN, this was a strike against public policies that was not covered by the Labour Code and in respect of which the Government filed a number of applications to have the strike declared illegal;
  • -section 378, according to which a strike may under no circumstances be repeated for the same reasons as a previous strike; and
  • -section 661bis, which provides that, in cases where the strike has been held in non-essential public services and has been declared legal, if eight calendar days have elapsed from the date of that declaration without the parties resolving the conflict, or at least reaching an agreement to set it aside while continuing negotiations, the employer may request the court to suspend the strike if it establishes reliably that the strike is causing serious harm to the public that would be difficult or impossible to repair. In this regard, the Committee recalls that the suspension of a strike should be limited to situations in which a non-essential service becomes essential, in so far as the duration or scope of the strike endangers the life, personal safety or health of the whole or part of the population (see the 2012 General Survey on the fundamental Conventions, paragraph 131).
Lastly, the Committee noted that in its above-mentioned decision of 25 October 2019, the Constitutional Chamber of the Supreme Court of Justice found an unconstitutional flaw in relation to Bill No. 21049, in as much as it seeks to add to section 350 of the Labour Code grounds for the dissolution of trade unions for the criminal conduct of their leaders. The Committee noted that the Constitutional Chamber emphasized in its decision that the individual and entirely personal criminal responsibility of trade union leaders could not be transferred to the trade union as a whole. The Committee notes with interest that the Act did not introduce this reform into section 350 of the Labour Code.
The Committee firmly hopes that, in the light of the foregoing comments, the Government, in consultation with the social partners, will take the necessary measures to ensure the conformity of the legislation with the Convention. The Committee requests the Government to provide information in this respect and reminds it that the technical assistance of the Office remains at its disposal in order to contribute to bringing the legislation into full conformity with the Convention.
Application of the Convention in practice. The Committee recalls that in its last direct request it asked the Government to continue providing information on the inspections carried out in the pineapple and banana sectors, as well as on the complaints submitted for violations of trade union rights in those sectors. The Committee notes the statistical information provided by the Government and welcomes the fact that whereas during the period 2016–17 a total of 72 inspections were carried out in the banana sector and 93 in the pineapple sector, during the period 2018–19, 317 inspections were carried out in the banana sector and 109 in the pineapple sector. The Committee also notes that between 2016 and 2019, the Labour Inspection Service dealt with 12 cases of anti-union harassment and unfair labour practice in the banana sector, as well as five cases in the pineapple sector. The Committee notes, however, that it is unclear from the information provided whether the inspections were carried out on a routine basis or following a complaint, or what prompted the inspections. The number of cases in which a violation of trade union rights was established is also unclear from the information provided. Noting that, in its observations, the CTRN alleges violations of the trade union rights of workers in the above-mentioned sectors, a situation which has worsened as a result of the COVID-19 pandemic, the Committee encourages the Government to ensure that the Labour Inspection Service continues to carry out inspections in the pineapple and banana sectors in order to ensure respect for trade union rights. The Committee also requests the Government to continue to provide detailed information on the inspections carried out, indicating whether they are carried out on a routine basis or based on a request, as well as on complaints submitted for violations of trade union rights in those sectors, indicating the outcome of those complaints including the number and nature of any violations found and sanctions imposed.

C098 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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.

C137 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the observations formulated by the International Organisation of Employers (IOE) and the Costa Rican Federation of Chambers and Associations of Private Enterprises (UCCAEP), received on 4 September 2019, as well as the Government’s reply to those observations.
Article 2 of the Convention. Permanent and regular employment. Further to its previous comments in which it requested the Government to provide up-to-date information on the measures taken to promote permanent employment in ports, the Committee notes the observations formulated by the OIE and the UCCAEP, which express their deep concern at the high unemployment rate in the Limón region and the apparent lack of willingness of the authorities to attract further investment. They indicate, however, that the launch of the operation of the Limón container terminal, and the construction of an additional terminal that will increase the capacity of cargo freight, offer more job opportunities. Lastly, they request the institutional transformation of the Board for Port Administration and Economic Development of the Atlantic Coast (JAPDEVA) in order to seek a clear proposal for its 1,180 public workers. In this regard, they refer to the Bill before the Legislative Assembly proposing that certain workers may benefit from the early retirement scheme or request their horizontal transfer to other institutions of the central and decentralized administration.
The Committee notes the Government’s reply indicating that the Costa Rican Pacific Ports Institute (INCOP) and JAPDEVA have adequate mechanisms to ensure the employment and working conditions of dockworkers. Although it considers that the issue of the development of the Limón region surpasses the strict framework of the port sector, the Government reports the actions promoted by the Caribbean Round Table, which is a social dialogue body established for the development and social inclusion of the province of Limón, supported by the ILO Costa Rica Office. The Government also refers to the Immediate Response Plan, aimed at supporting priority populations with subsidies allocated to specifically target workers affected by mass dismissals, closures or changes to the operations in the province. With respect to the port sector, the Government indicates that six fairs were organized, with the support of the Ministry of Labour and Social Security, for JAPDEVA workers, to bring together public workers who expressed interest in being transferred to other independent institutions. In addition, after several meetings with representatives of the JAPDEVA workers’ union (SINTRAJAP), an agreement was reached on measures to protect workers' job security. These commitments were set forth in the Bill on the modernization of JAPDEVA and the protection of its employees (legislative dossier No. 21,426). This Bill proposes several measures, including horizontal transfer towards other bodies, the right to early retirement and an incentive for institutional transformation. The Committee requests the Government to continue providing up-to-date information on the measures taken to promote permanent and regular employment of dockworkers in all the country’s ports. With regard to the situation in Limón port, the Committee requests the Government to report on the impact of the employment support activities carried out by the authorities and of the expansion of the terminals on dockworkers’ jobs, and to specify changes in the size of the workforce. Lastly, it requests the Government to report on the implementation of the Bill on the modernization of JAPDEVA and the protection of its employees, once it has been adopted.
Article 5. Cooperation with the social partners. Further to its previous comments, the Committee notes the information provided on the cooperation of INCOP and JAPDEVA with the representative dockworkers’ organizations. The Committee requests the Government to continue providing up-to-date information on the cooperation of INCOP and JAPDEVA with the dockworkers’ organizations, with a view to improving labour efficiency in the country’s ports, including information on cooperation with the social partners in the implementation of the Bill on the modernization of JAPDEVA and the protection of its employees, once it has been adopted.
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