Interim Report - Report No 49, 1961

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

1. 307. The complaint of the FUTRA is contained in two communications dated 24 August and 12 September 1960, that of the Chiriqui Land Company Workers' Union in two communications dated 22 August and 28 September 1960 and that of the Costa Rican General Confederation of Labour in a communication dated 10 October 1960. The Government forwarded its observations in four communications dated 10 and 21 October 1960 and 1 and 2 November 1960.
2. 308. 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).

Allegations relating to Anti-Union Acts by Employers

1. 309. The FUTRA, in its communication dated 12 September 1960, and the Chiriqui Land Company Workers' Union, in its communication dated 22 August 1960, declare that on several occasions they have requested the Ministry of Labour to intervene, as a conciliator or by initiating court action, to put an end to persecution of the trade unions and of their leaders by the banana companies which employ them and by newspapers subsidised by the companies (cuttings are annexed to the complaint). Among particular instances cited by the FUTRA are the alleged banning by the police, at the request of the South Pacific Banana Co., of trade union meetings in plantation workers' settlements, where they have been held continuously for the last 17 years; alleged pressure on workers at Corredores by their employers to cause them to leave their union; alleged moves by the Costa Rican Banana Co. and the Chiriqui Land Company to set up an employer-dominated " workers' committee " in rivalry with the union, supported by a press campaign, leaflets dropped by aircraft, etc. (as described in the copy of the FUTRA's letter of 4 April 1960 addressed to the Minister of Labour annexed to the complaint). In these machinations, declare the complainants, the employers often use senior employees as their agents, so that they can disclaim responsibility. The Chiriqui Land Company Workers' Union also complains of alleged attempts by the employers to use the workers' committee to smash their union. Both complainants declare that, although their Government 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), all their requests to the competent Minister to intervene, by conciliation or by instituting court action, have been ignored (they furnish copies of various letters stated to have been addressed to the Minister in this connection).
2. 310. The Government furnished observations on the matters raised in these allegations in its communications dated 1 and 2 November 1960, which were received too late to permit of their being examined by the Committee at its present session.
3. 311. In these circumstances the Committee has adjourned its examination of these allegations until its next session.
4. Allegations relating to the Detention of Trade Union Leaders
5. 312. In its communication dated 22 August 1960 the Chiriqui Land Company Workers' Union alleges that, on 24 July 1960, on the occasion of a union meeting in its own premises, at Laurel, two union leaders, Mr. Alvaro Montero Vega and Mr. Juan Rafael Solis Barboza, were arrested and imprisoned by order of the Mayor of Golfito. In the annexes to the FUTRA's complaint dated 12 September 1960 it is stated that the arrest of these two persons, Vice-President and General Secretary of the FUTRA, followed closely after a visit by them to the President of the Republic to complain of anti-union persecution and that the President had promised to take action to put an end to it, this interview having been reported in the press next day. A further protest addressed to the President himself is alleged to have been ignored. The complainants forward an extract from the issue of La República dated 26 July 1960 reporting the fact of their arrest.
6. 313. The Government refers to these allegations in its communication dated 1 November 1960. Although this communication was received too late to permit of its being examined in full by the Committee at its present session, the Committee has noted the statement made therein by the Government that, although certain sanctions were taken with respect to the two trade union officials concerned, they were not actually arrested.
7. 314. In these circumstances the Committee, considering that the allegations no longer appear to fall within the category of those which, in view of the fact that they relate to matters involving human life or personal freedom, are required to be treated as urgent, in accordance with the decision of the Governing Body in November 1958, has adjourned its examination of this aspect of the case until its next session.
8. Allegations relating to Interference with Trade Union Meetings
9. 315. One aspect of these allegations has already been mentioned in paragraph 309 above, where reference was made to an allegation that the police, on the instigation of the employers, prohibited trade union meetings in plantation premises inhabited by the workers, although such meetings had regularly been held in such premises for 17 years.
10. 316. It is also alleged by the Chiriqui Land Company Workers' Union, in its communication dated 22 August 1960, that on 13 August 1960, when the general meeting of the Union was to be held, the public authorities sent an unusually large number of police to the premises, with the result that such a number of members were frightened away that no legal quorum for the meeting could be attained. The meeting was adjourned until 21 August. Just prior to the adjourned meeting, it is alleged, police again were sent to the vicinity. Only about 100 union members dared to attend. During the meeting, it is alleged, the Union's premises were under close police surveillance. The complainants declare that, despite the guarantee of the right of meeting contained in article 13 of the Constitution of Costa Rica, the Secretary to the Mayor of Golfito wished to prevent the meeting by force. They also accuse the authorities of attempting to spy at the meeting, in the hope of finding evidence to justify a dissolution of the Union; thus, it is alleged, an inspector of the Ministry of Labour declared that he had been instructed to attend the meeting as an observer, but the Union executive did not know of his presence at the beginning because he did not officially disclose his attendance when the first session of the general meeting was held in the private premises of the Union.
11. 317. The Government comments on these matters in its communications dated 1 and 2 November 1960, which were received too late for consideration at the present session of the Committee.
12. 318. In these circumstances the Committee has adjourned its examination of this aspect of the case until its next session.
13. Allegations relating to a Draft Decree
14. 319. The FUTRA deals with this question in its communications dated 24 August 1960 and 12 September 1960. This complainant alleges in general terms that a proposed Trade Union Decree of the Ministry of Labour would infringe both the National Constitution and legislation and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Costa Rica. While the Minister is obliged by section 291 of the Labour Code to take measures to guarantee the right to organise, declare the complainants, he proposes to abolish union autonomy and impose state control to an exaggerated degree. The complaining organisation declares further that no advance copy of the proposed decree was furnished to it, as to other organisations, for its observations. In conclusion, it is alleged, the purpose of the proposed decree is to destroy the militant unions in the banana-producing areas.
15. 320. The Chiriqui Land Company Workers' Union, in its communication dated 28 September 1960, declares its support for the FUTRA's protest, alleging that anti-democratic interests have put pressure on the Minister to repress the free trade union movement.
16. 321. Far more precise allegations are made in the complaint (and the annex thereto consisting of a declaration in which both affiliated and independent unions participate) presented on 10 October 1960 by the Costa Rican General Confederation of Labour. This declaration, in fact, is a representation addressed to the Minister jointly by the Confederation and eight trade unions, in response to the circulation by the Minister among those unions of his draft trade union regulations, with a request that they should send him their observations thereon.
17. 322. This complainant begins by making a criticism in general terms to the effect that the regulations would violate the fundamental principles of trade union democracy, freedom of association and trade union autonomy, thus violating, in consequence, article 60 of the Political Constitution, the Labour Code and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Costa Rica and brought into force as the law of the land.
18. 323. The complainant points out that section 291 of the Labour Code authorises the Executive to lay down regulations which will guarantee " the effectiveness of the right to organise " and for that purpose only. The draft decree, in the complainant's view, would impede that right. It is alleged that the draft regulations provide for a series of obligations, prohibitions, penalties, fines and for interference by police and labour authorities in the internal affairs of trade unions which could not be obtained through laws passed through the Legislative Assembly because they would be unconstitutional.
19. 324. More specifically, these complainants declare that section 1 of the draft refers to " the corresponding intervention of the public authorities " in the life of trade unions. Section 68, it is stated, provides that the convocation of a general meeting " must be notified with adequate anticipation to the Trade Union Office and to the Department of the Interior ", thus constituting an illegal intervention by the labour and police authorities to prevent the right to hold trade union meetings in full freedom in the absence of police and labour authorities, who " have no business in such assemblies ". Section 98 establishes " the necessary service of control over trade union activities " and section 99, declare the complainants, provides that " the functioning of the organisations will be controlled by staff of the Office ", with the powers to attend " general assemblies and meetings of executive committees, as observers ", to " require presentation of the books at the Office at any time ", to investigate " carefully the activities carried on by the organisations " and to carry out "any other activity which the Office deems advisable to carry out an effective job of control ". To make these police measures effective, contend the complainants, the Trade Union Office [of the Ministry] will have " as many assistants and book-keepers as it deems necessary " and that they will be invested " with authority to act in work and organisation centres in all matters pertaining to their duties ", while, according to section 6, the assistants " should be specialists with adequate legal and social knowledge ". Other sections, declare the complainants, violate trade union autonomy-section 27 establishes the mandatory use of forms prepared by the Trade Union Office; section 66 provides that amendments to rules must be approved by the union general assembly but that the executive committee must submit the draft amendment to the Trade Union Office for prior approval (contrary to section 276 (b) of the Labour Code); section 71 obliges union officers to swear an oath " whose text will be adopted by the Executive in a resolution ". All this, allege the complainants, runs counter to the speech of the Minister of Labour to the Legislative Assembly when presenting the Bill for ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), when he is stated to have said that the several rights guaranteed by Article 3 of the Convention " must be enjoyed by trade unions in order to achieve their purpose, and the exercise thereof must be free from all intervention by public authorities ".
20. 325. The complainants continue: section 54 of the draft makes unconstitutional additions to section 275 of the Labour Code and revokes the right of the union general assembly to fix ordinary and extraordinary dues; section 55 gives the Head of the Trade Union Office the right " to establish just censure where the law is tacit; section 66 illegally varies section 276 of the Labour Code with respect to the right of ordinary and extraordinary general assemblies; section 68 violates article 26 of the Political Constitution on the right of meeting; section 69 provides for permanent delegates to federation and Confederation meetings, contrary to the Labour Code and to trade union democracy and autonomy; trade union rights at Confederation assemblies are limited, whereas they should be a matter of internal union policy; section 78 contains onerous regulations on accounting; section 79 provides for an unjustifiable degree of prior authorisation for strikes; section 103 is entirely illegal; section 104 provides for fines not permitted by the Labour Code; section 105 provides grounds for dissolution of trade unions not found in the Code; section 106 places restrictions not permitted by the Code on candidates for union office.
21. 326. The Government declares, in its communication dated 10 October 1960, that the draft simply " develops the principles " found in the Political Constitution, the Labour Code, the Organic Law of the Ministry of Labour and Social Welfare and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The draft was distributed, for observations, to the main employers' and workers' organisations and to certain undertakings and social experts. The Government refers to its growing interest " in the full development and application of the right to organise ", as demonstrated by its ratification of the said Convention No. 87, and states that the draft decree may be varied in the light of observations from those to whom it was circulated. The Government, dealing in this communication only with the complaint of the FUTRA, states that the organisation makes no specific criticisms of the draft, so that the Government cannot add to its general observations.
22. 327. In its communication dated 21 October 1960 the Government refers to the complaint of the Costa Rican General Confederation of Labour analysed in paragraphs 322 to 325 above. The Government does not, however, refer to any of the criticisms by the Confederation of the different sections of the draft, but quotes section 140 of the Constitution:
23. The President and the respective Minister are jointly required and empowered;
24. ......................................................................................................................................................
25. (3) to endorse and promulgate legislation, to issue regulations thereunder, to give effect thereto and to make arrangements for precise compliance therewith;
26. ......................................................................................................................................................
27. (18) to adopt appropriate rules for the internal conduct of their own offices and to issue such other rules and regulations as may be necessary for prompt implementation of legislation;
28. ......................................................................................................................................................
29. The Government also cites section 291 of the Labour Code as follows:
30. The Office of the Secretary of Labour and Social Welfare shall undertake to promote the development of the trade union movement, in a harmonious and orderly manner, by all the lawful means which it may consider appropriate. With this object, it shall issue in the form of executive decrees all the provisions which may in practice be necessary to ensure that the right to organise in trade unions shall be effective.
31. It also cites the Transitional Provision of the Code:
32. The Executive shall issue regulations under the present Code within a maximum period of two years counted from the date of its coming into force.
33. 328. Consequently, concludes the Government, the power of the Executive to issue regulations is indisputable, and the Code obliges it to do what it has not been possible to do so far, that is, to issue regulations on certain trade union matters. That is what the Executive now intends to do.
34. 329. In a number of cases the Committee has considered how far it should comment on pending legislation. While the Committee has in certain cases dismissed allegations relating to proposed legislation, either because of the vagueness of the allegations or because the proposed enactment was not government sponsored, it has declared, on the other hand, that, when it has before it precise and detailed allegations concerning a proposed enactment submitted to the Legislature by the Government, the fact that the allegations relate to a text which does not have the force of law should not of itself prevent the Committee from expressing its opinion on the merits of the allegations made. The Committee expressed the view that in such circumstances it is desirable that the Government and the complainant should be made aware of its point of view with regard to a proposed Bill before it is enacted, in view of the fact that it is open to the Government, on whose initiative such a matter depends, to make any amendments which may seem desirable a These principles appear to be equally applicable in the present case, which relates not to proposed legislation pending before the Legislature but to proposed regulations pending before the Executive.
35. 330. Following its previous practice, the Committee considers that the complaints of the FUTRA and the Chiriqui Land Company Workers' Union with regard to the pending legislation are in too general terms to justify the Committee considering them further. The allegations of the Costa Rican General Confederation of Labour analysed in paragraphs 322 to 325 above, on the other hand, are precise and detailed. While the Committee cannot reach firm conclusions in respect of separate provisions of proposed regulations when they are divorced from the text as a whole-the text in this case not having been furnished in its entirety either by the complainants or by the Government-it would appear prima facie that, if the various textual provisions have been correctly cited by the complainants, several of them would appear to call for examination in the light of the principles embodied in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). That being so, the Committee considers it appropriate to express its views on the matter prior to the promulgation of the decree.
36. 331. First of all, the provision in section 1 of the draft regulations alleged to deal with " intervention " of the public authorities in the life of trade unions, section 98 which is stated to establish " the necessary service of control over trade union activities ", the provision in section 99 alleged to provide for control of trade union activities by the staff of the Trade Union Office and the other provisions relating to the powers of such staff, section 54 which is stated to deprive the union general assembly of the right to determine union dues, would all appear to call for examination in the light of their compatibility with Article 3 of the Convention, according to which workers' organisations shall have the right to organise their administration and activities and the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. According to the complainants, section 68 requires the Trade Union Office and the Department of the Interior to be notified of a union general meeting sufficiently in advance, section 99 gives the "controlling " authorities power to attend union general and executive committee meetings, while sections 66 and 68 also impose restrictions in respect of trade union meetings. These provisions affecting the freedom of trade union meetings, which, as the Committee has emphasised on many occasions in the past, constitutes one of the fundamental elements of trade union rights, would also appear to call for examination in the light of the provisions of Article 3 of the Convention referred to above, as would section 69, which, according to the complainants, provides for permanent delegates to meetings of federations and Confederations. This latter section, again, would need to be considered in the light of the provision in Article 3 of the Convention, according to which workers' organisations shall have the right to elect their representatives in full freedom. Section 66 is alleged to lay down the requirement of prior approval by the public authorities for amendments to union rules, a requirement which would need to be considered in the light of the provision in Article 3 of the Convention that workers' organisations shall have the right to draw up their Constitutions and rules without interference on the part of the public authorities. The information contained in the allegations as to the contents of some of the other sections is less detailed, but the provisions relating to dissolution of trade unions (section 105) might call for examination in the light of the principle that workers' organisations shall not be liable to be dissolved or suspended by administrative authority, and those alleged to place restrictions on candidates for trade union office (section 106) in the light of the principle that workers' organisations shall have the right to elect their representatives in full freedom (Article 3). Further, all the provisions in question would need to be considered in the light of Article 8 (2) of the Convention, according to which the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention.
37. 332. When the Governing Body decided, in November 1958, that a distinction should thenceforth be drawn between urgent and less urgent cases, it laid down that certain types of cases, including cases involving the arrest or detention of trade union members or officials, might be treated automatically as cases of urgency, other cases being so treated only if, in the judgment of the Committee, special circumstances so required. In connection with the allegations now being considered, the Committee considers that where, as in the present case, the adoption of proposed regulations covering many aspects of freedom of association and trade union rights is imminent and there appears to be a likelihood that its adoption may lead to controversy as to its compatibility with a Convention ratified by the State concerned, it is desirable that the views of the Committee and, eventually, of the Governing Body should be made known to that State at the earliest possible moment, so that it may have cognizance of them prior to the promulgation of the proposed regulations. For these reasons the Committee considers that the present allegations involve special circumstances which justify their being examined as a matter of priority.
38. 333. Having regard to all the circumstances of the case, the Committee has taken note of the Government's statement that it is empowered to issue regulations pursuant to the national legislation, as it intends to do in relation to trade union matters. The Committee expresses its confidence that, in so doing, the Government of Costa Rica will take care to fulfil the international obligations which it has assumed by ratifying the Conventions relating to freedom of association. In this connection, while recognising fully that it is still uncertain whether the proposed regulations in question will be promulgated in the form alleged or in a revised form, the Committee, having noted that, in the form cited by the complainants, certain provisions alleged to be contained in the draft would be incompatible with the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), considers that it would be desirable for the Government to be made aware of the views of the Committee with regard to the proposed text and of the problems which might arise with regard to its compatibility with the said Convention as indicated in paragraph 331 above.

The Committee's recommendations

1. 334. In these circumstances the Committee recommends the Governing Body:
   • (a) to take note of the Government's statement that it is empowered to issue regulations pursuant to the national legislation and that it intends to do so in relation to trade union matters;
   • (b) to draw the attention of the Government, in order to facilitate its task in this connection, when deciding in what form to issue the text of the regulations the promulgation of which it has indicated it envisages, to the views expressed in paragraph 331 above and to the problems which might arise with regard to its compatibility with the provisions contained in 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);
   • (c) to take note of the present interim report of the Committee with regard to the remaining allegations, it being understood that the Committee will report further thereon at its next session.
     • Geneva, 10 November 1960. (Signed) Paul RAMADIER, Chairman.