Definitive Report - Report No 68, 1963

Case No 239 (Costa Rica) - Complaint date: 24-AUG-60 - Closed

1. 27. This case was examined by the Committee as early as the 26th Session (November 1960) when the Committee submitted to the Governing Body an interim report contained in paragraphs 307 to 334 of the 49th Report of the Committee, which was approved by the Governing Body at its 147th Session (November 1960), again at its 27th Session (February 1961) when the Committee submitted another interim report contained in paragraphs 163 to 201 of its 52nd Report, which was approved by the Governing Body at its 148th Session (March 1961), and yet again at its 32nd Session (October 1962), when it submitted another report contained in paragraphs 96 to 161 of its 66th Report which was approved by the Governing Body at its 153rd Session (November 1962) and which contains the final recommendations on this case.
2. 28. The said recommendations, which were forwarded to the Government of Costa Rica by a communication dated 16 November 1962, read as follows:
3. 161. In all the circumstances the Committee recommends the Governing Body:
   • (a) to suggest to the Government the possibility of adopting clear and precise provisions to ensure the adequate protection of workers' organisations against any acts of interference by employers or their organisations, in conformity with Article 2 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has been ratified by Costa Rica;
   • (b) to draw the attention of the Government to the importance which it attaches to the right of plantation workers to hold trade union meetings and to suggest that it might be appropriate to adopt clear provisions as to the meaning to be attached to the terms " public meeting " and " private meeting ";
   • (c) to draw the attention of the Government, having regard to the particular situation of plantation workers, to the importance which it attaches to the principle enunciated by the Plantations Committee of the I.L.O at its First Session (Bandung, December 1950) that employers of plantation workers should provide their unions with facilities for the conduct of their normal activities, including free office accommodation and freedom of entry;
   • (d) as regards the allegations relating to the detention of trade union leaders:
   • (i) to draw the attention of the Government to the fact that the right of trade unions to meet freely in their own premises, without need for prior authorisation and without control by the public authorities, constitutes a fundamental element of freedom of association;
   • (ii) to note that the various workers detained were released some hours later;
   • (iii) to decide that this aspect of the case does not require further examination;
   • (e) to draw the attention of the Government to the obligation which it undertook, in ratifying the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to apply all its provisions including, in this particular case, the provisions of Article 2 which specifies that " workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation ";
   • (f) to express its satisfaction to the Government for the statement by the Ministry of Labour and Social Welfare, according to which, if the question of the revival of the draft decree referred to in paragraph 155 above should arise in future, the Government would consult the I.L.O prior to taking any decision on the matter;
   • (g) to express its satisfaction to the Government for the assurances given by the Ministry of Labour and Social Welfare, according to which it will no longer send inspectors to private trade union meetings, unless so requested by the trade unions concerned.
4. 29. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 30. By a communication dated 14 January 1963 the Government of Costa Rica acknowledged receipt of the letter forwarding the Committee's recommendations and asked for an interpretation of the recommendation contained in the 66th Report, paragraph 161 (e), in order to ascertain whether it means that the public authorities must refrain from any intervention which would tend to restrict or prevent the formation or registration, and consequently the acquisition of legal personality, of unions which, though having statutes in conformity with the law, show themselves, from the evidence collected about their underlying purposes or means of action, to be bodies intended to promote subversion or to conspire against the established government or against the Constitutional democratic régime; or whether, on the other hand, whenever the possibility of recourse to the competent courts is guaranteed, the administrative authority may, for serious reasons of public or social interest, refuse these spurious trade union organisations the registration conferring legal personality-which would constitute a special procedure of dissolution, successful in achieving its end only when approved by the judicial authorities on an action taken by the organisation's representatives or when, through patent lack of interest, the organisation concerned does not appear before the competent court within a legal time limit.

B. B. The Committee's conclusions

1. 31. In this connection the Committee of Experts on the Application of Conventions and Recommendations, considering a similar observation formulated by the Government representative of another country which had also ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), was of the opinion that a group which adopted the rules and the form of a trade union only in order to engage in activities foreign to trade union activities could naturally not enjoy the guarantees laid down in the Convention. However, the Committee considered that it would be difficult to determine in advance whether an organisation applying for registration would or would not engage in activities foreign to trade union activities. As the Committee emphasised in its general conclusions in 1957, normal control of the activities of trade unions should be effected a posteriori and by the judicial authorities; and the fact that an organisation which seeks to enjoy the status of an occupational organisation might in certain cases engage in activities foreign to trade union activities does not appear to constitute sufficient reason for subjecting trade union organisations a priori to control with respect to their composition and with respect to the composition of their management committees."

The Committee's recommendations

1. 32. In all the circumstances the Committee, while maintaining its earlier conclusions, recommends the Governing Body to draw the attention of the Government of Costa Rica to the fact that refusal to register a union because the authorities, in advance and of their own independent judgment, consider that it might be politically undesirable, would seem tantamount to submitting registration, which is compulsory and without which a union cannot lawfully exist, to previous authorisation on the part of the authorities, which is not compatible with the provisions of Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by the Government of Costa Rica.