Definitive Report - Report No 129, 1972

Case No 635 (Costa Rica) - Complaint date: 04-JUL-70 - Closed

1. 86. The Committee previously examined this case at its 56th Session (November 1970), when it submitted an interim report thereon to the Governing Body (121st Report, paragraphs 74 to 83).
2. 87. 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. 88. The Committee recalls that the complainants alleged that 32 workers of the Municipal Council of Goicoechea had been dismissed as an act of reprisal because they had submitted a claim aimed at the conclusion of a collective agreement. The Government had denied that the dismissals were acts of reprisal, stating that they had taken place either because of a reorganisation of the administration or because of misdemeanours committed by several of the workers involved. The Government had also stated that, as regards the submission of a claim, a municipality was not, under national legislation and case law, required to conclude a collective agreement.
2. 89. In this connection the Committee recalled that the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which sets standards designed to protect workers against any acts of anti-union discrimination in respect of their employment and provides for measures to encourage and promote collective bargaining, allows an exception in the case of public servants engaged in the administration of the State. On the other hand, the Committee also recalled that the Committee of Experts on the Application of Conventions and Recommendations had stated that while the concept of public servant may vary to some degree under the various national legal systems, the exclusion from the scope of the Convention of public servants who do not act as agents of the public authority is contrary to the meaning of the Convention.
3. 90. The Committee had observed that there was nothing in the evidence before it to show which categories of municipal employees were involved so that it could decide whether or not they were covered by the guarantees contained in the Convention. Nor was it clear from the available information what actions some of the workers were alleged to have committed which led to their dismissal. The Committee had accordingly requested the Government to define the nature of the duties of the workers covered by the claim submitted to the Municipal Council by the National Union of Municipal Workers, and the misdemeanours, considered to be serious, which led to the dismissal of certain of these workers.
4. 91. The Government responded to this request by submitting additional information on the matters in a communication dated 12 November 1971 addressed direct to the ILO.
5. 92. In this communication the Government provides a list of the names and occupations of the dismissed workers, all of whom, states the Government, were municipal workers performing a public service for a municipal corporation, as a department of public administration to which section 56 of the Labour Code was applicable. This section provides that any " private " employer with a given proportion of unionised workers is compelled to conclude a collective agreement with the appropriate trade union at the latter's request. It appears therefore that if the employer is a public body, this obligation does not apply.
6. 93. The Government further states that the misdemeanours committed by the workers which caused them to be dismissed were indiscipline, refusal to obey orders of superiors and utter disregard for the tools and equipment issued to them for the performance of their duties, all of which was proved when the matters were thoroughly investigated.
7. 94. The Government adds that it is relevant to mention that the matters were not established before the courts, not because of lack of evidence but because of the intervention of the Ministry of Labour and Social Welfare, through which payment of the statutory benefits was secured for the dismissed workers. As a result of this, legal proceedings were terminated.
8. 95. The Government adheres to its view that the dismissals in question in no way amounted to trade union persecution, as alleged by the complainants, since at the time of submission of the claims for better financial conditions, the Municipal Corporation had already decided upon a reorganisation of its staff.

B. B. The Committee's conclusions

1. 96. From the information supplied by the Government in its communication, it appears to the Committee that the nature of the duties of the majority of the workers covered by the claim submitted by the National Union of Municipal Workers is not such as to justify the exclusion of these workers from the scope of the Convention. In the list of persons dismissed by the Council, the Committee observes that out of the 27 persons named, 21 are manual workers or labourers (mainly roadsweepers and refuse collectors), four are inspectors of buildings or public entertainment, one is a tax inspector and another a musician in the Municipal Philharmonic Orchestra. Clearly, the majority of the workers involved did not act as agents of the public authority and accordingly are entitled to the protection afforded by Convention No. 98.
2. 97. With regard to the dismissal of the workers employed by the Municipal Council of Goicoechea, the Committee notes the complainants' allegation that the dismissals were acts of reprisal and anti-trade-union victimisation which were the result of the submission of a claim by the National Union of Municipal Workers for improved conditions. The Committee also notes that the misdemeanours which caused the dismissal of certain of the workers were fully investigated by the authorities, and that acts of indiscipline, failure to obey orders, and disregard for tools and equipment, were found to be proved. The Committee is of the opinion that while the commission of misdemeanours of this nature may have been provoked by the refusal on the part of the Council to negotiate, it nevertheless considers that no information has been supplied by the complainants to support the allegation that these dismissals were acts of reprisal or anti-trade-union victimisation. The Committee accordingly recommends the Governing Body to decide that this aspect of the case does not call for further examination.
3. 98. With regard to section 56 of the Labour Code and the refusal of the Municipal Council of Goicoechea to discuss or negotiate with the National Union of Municipal Workers in connection with its claim for improved conditions, the Committee wishes to draw the attention of the Government to Article 4 of Convention No. 98, which lays down that " Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements ". In this connection the Committee has, on several occasions, emphasised the importance which it attaches to the principle that employers, including public authorities in their capacity as employers, should recognise for collective bargaining purposes the organisations representative of the workers employed by them.
4. 99. The Committee accordingly recommends the Governing Body to request the Government to consider, in the light of the considerations and principles set forth in paragraphs 89, 96 and 98 above, what measures should be taken to ensure the promotion of the full development of voluntary negotiation between workers' organisations and, in appropriate circumstances, public authorities in their capacity as employers, with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee also recommends the Governing Body to draw the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case in connection with its examination of reports supplied by the Government under article 22 of the Constitution of the ILO.

The Committee's recommendations

1. 100. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) to decide that the majority of the workers covered by the claim submitted by the National Union of Municipal Workers were entitled to the protection of Convention No. 98;
   • (b) to decide, for the reasons given in paragraph 97 above, that the allegations concerning the dismissal of 32 workers by the Municipal Council of Goicoechea do not call for further examination;
   • (c) to request the Government to consider, in the light of the considerations and principles set out in paragraphs 89, 96 and 98 above, what measures should be taken to ensure the promotion of the full development of voluntary negotiation between workers' organisations and, in appropriate circumstances, public authorities in their capacity as employers, with a view to the regulation of terms and conditions of employment by means of collective agreements; and
   • (d) to draw the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case in connection with its examination of reports supplied by the Government under article 22 of the Constitution of the ILO.