Definitive Report - Report No 197, November 1979

Case No 821 (Costa Rica) - Complaint date: 20-JUN-75 - Closed

164. The Committee already examined these cases in November 1977 and in May and November 1978; on each occasion it submitted interim conclusions, which are to be found in its 172nd Report (paragraphs 194 to 220), 181st Report (paragraphs 117 to 143) and 187th Report (paragraphs 350 to 368). The Governing Body approved these reports in November 1977 and in June and November 1978 (204th, 206th and 208th Sessions), respectively. The Government handed over various documents with a bearing on the case at an interview on 14 June 1979 between the Minister of Labour and the Chairman of the Committee, and supplied further information in a communication dated 16 July 1979.

1. 164. The Committee already examined these cases in November 1977 and in May and November 1978; on each occasion it submitted interim conclusions, which are to be found in its 172nd Report (paragraphs 194 to 220), 181st Report (paragraphs 117 to 143) and 187th Report (paragraphs 350 to 368). The Governing Body approved these reports in November 1977 and in June and November 1978 (204th, 206th and 208th Sessions), respectively. The Government handed over various documents with a bearing on the case at an interview on 14 June 1979 between the Minister of Labour and the Chairman of the Committee, and supplied further information in a communication dated 16 July 1979.
2. 165. Costa Rica has ratified both 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. 166. At its sessions in June and November 1978, the Committee made certain comments in relation to the question of principle raised by the alleged interference by the Costa Rican Social Security Fund in the affairs of its employees' union. In September 1978 the Government sent information with respect to one aspect of the question, namely the reasons for the dismissal of a trade union official.
2. 167. Recalling its conclusions in an earlier case relating to Costa Rica, the Committee pointed out that ratification of Convention No. 98 involved an undertaking, under the terms of Article 2 of that Convention, to ensure that workers' organisations in particular were provided by the legislation with the means to protect themselves against interference by employers or their organisations. Costa Rican legislation contained no specific provisions to this effect.
3. 168. On the Committee's recommendation, in June 1978, the Governing Body urged the Government to adopt the necessary provisions without delay in a communication dated 19 September 1978, the Government stated that it had taken note of these recommendations, which the Governing Body reiterated in November 1978 when it approved paragraph 368 of the Committee's 187th Report.
4. 169. In its further observations of 16 July 1979 the Government states that the alleged interference by the Costa Rican Social Security Fund in the union UNDECA never took place. Among the documents supplied is an attestation by the authorities of the Fund to the effect that an examination of the accounts for the period to which the complaint refers (1974 and 1975) shows that the Fund did not pay the travelling expenses of workers as an inducement to attend a certain trade union meeting, as has been claimed by the complainants. The Government also draws attention to the information furnished earlier to the effect that a judgement pronounced in August 1976 had declared it not proven that Mr. Carlos Acuña Castro, an official of the union, had been dismissed on account of his trade union activities. The Government supplies the text of this judgement. In addition, in letters sent to the ILO by Mr. Acuño Castro - now a Ministry of Labour official - and a number of the UNDECA officials who had signed the complaint, it is acknowledged that the facts were not as serious as was claimed in the first place.
5. 170. The Committee notes this information. It nevertheless considers that its general conclusions as to the need for legislative provisions which will protect workers' organisations against possible interference by employers are still applicable. In effect, to give the necessary publicity to provisions such as those of Article 2 of the Convention and ensure that full effect is given to them in practice, even in cases where ratification has the effect of incorporating the international standard in municipal law, it is highly important that these provisions, accompanied by provision for appeals and penalties to ensure that they are complied with, should be embodied explicitly in the relevant legislation. The Committee is therefore of the opinion that the recommendations already approved by the Governing Body in this respect should be maintained.
6. 171. The other matters still outstanding concern the dismissal from their jobs of three other officials of unions of employees in the public sector and the criminal proceedings brought by the authorities against two of them. These events occurred in 1976 and 1977. According to the allegations, Luis Fernando Alfaro Zúñiga, General Secretary of the Trade Union Association of Employees of the Costa Rican Electricity Institute, and Mario Devandas Brenes, General Secretary of the National Federation of Public Service workers, were dismissed from their jobs. Subsequently, according to the complainants, because of strikes called by workers belonging to their respective unions, they were charged with incitement to strike and other offences and imprisoned. The Government stated that Alfaro Zúñiga had made subversive speeches during a strike in July 1976 at the Costa Rican Electricity Institute and that the Public Prosecutor had charged both him and Devandas Brenes with riot, incitement to a collective stoppage of public services and conduct prejudicial to public order. Both were to be brought to trial and the court had allowed them to be released on bail.
7. 172. Bearing in mind the principles it had upheld in this connection, the Committee examined the provisions of the Labour Code which prohibit strikes in the public services and make it compulsory for any disputes between employers and workers in this sector to be referred to the labour courts. The Committee pointed out in particular that where strikes were prohibited or restricted in essential services or in the civil service, adequate guarantees should be ensured to safeguard the interest of the workers to the full, including in particular the existence of adequate, impartial and speedy conciliation and arbitration procedures in which the parties could take part at every stage and in which the awards were binding in all cases on both parties and must be fully and promptly implemented. In this connection the Government confirmed that the procedure for the peaceful settlement of disputes prescribed in the Labour Code was applicable to disputes at the Costa Rican Electricity Institute and the National Institute of Housing and Town Planning.
8. 173. On the Committee's recommendation, in November 1978 the Governing Body requested the Government to transmit the texts of the judgements pronounced in the cases of Messrs. Alfaro Zúñiga and Devandas Brenes, with the reasons adduced therefore.
9. 174. The remaining dismissal involved Mr. Cristián Sobrado Chaves, General Secretary of the Union of Bank Employees of Costa Rica. He had been dismissed in February 1977, according to the complainants, on the false pretext of unjustified absences from work. The Government stated inter alia that legal proceedings were pending in connection with this matter. In November 1978 the Committee and the Governing Body drew attention to the importance of a rapid procedure for examining alleged cases of dismissal because of trade union activities. The Government was requested to supply the text of the judgement handed down in the case relating to the dismissal of Mr. Sobrado Chaves.
10. 175. The documents and observations communicated by the Government on 14 June and 16 July 1979 include the texts of the judgements requested. As concerns Mr. Devandas Brenes, it is stated in the judgements pronounced by the labour court and the Higher Labour Court in September and October 1976 that he was discharged on 1 March 1976 by the institute of Housing and Town Planning together with other workers, as part of a retrenchment of staff rendered necessary by financial difficulties. The judges considered it proven that Mr. Devandas Brenes had been dismissed for this reason and not arbitrarily or as a means of anti-union persecution, and that the employer had obtained authorisation in advance from an advisory board as required by the collective agreement. As regards Mr. Alfaro Zúñiga, the judgements, likewise of first and second instance, pronounced in March and May 1978 state that he was dismissed in February 1976 by the Costa Rican Electricity Institute. The union had filed a complaint with the Legislative Assembly against the authorities of the Institute, accusing them of corruption and mismanagement. The Assembly set up a commission of inquiry. Later the union executive had a statement published in the press accusing the authorities of the institute of anti-union persecution. The latter enjoined Mr. Alfaro Zúñiga to substantiate some of the charges made, which he did not do himself, but left it to the union, whereupon he was dismissed. The court considered that the dismissal was justified, observing, inter alia, that while the union was a separate legal entity from its members, this fact did not exonerate Mr. Alfaro Zúñiga from his responsibilities as an employee in his relations with his employer. According to the court, the statement published by the union was based on charges made personally by this employee, who did not substantiate them as instructed by his employer, and was thus guilty of dishonesty and disloyalty. The court considered that there was just cause for dismissal on the ground of serious non-compliance with the obligations deriving from a contract of employment as specified in the Labour Code.
11. 176. The Government also supplies information concerning the criminal proceedings initiated in 1976 against Messrs. Devandas Brenes and Alfaro Zúñiga on charges of riot and incitement to a collective stoppage of public services. According to the indictment put before the criminal court, on the occasion of a strike at the Costa Rican Electricity Institute in July of that year, these persons, who had no connection with the Institute (Mr. Alfaro Zúñiga having been dismissed from it a few months earlier, as stated above), insinuated themselves into the movement and by haranguing them and making subversive speeches incited some 600 workers to take part in a collective cessation of their public duties; they succeeded in persuading them to stop work, thus paralysing the main electricity supply plant. Also according to the indictment, the strike had been declared unlawful that very same day by the labour court - a ruling not found acceptable by the strikers, who insulted and stoned the Civil Guardsmen who arrived two days later to enforce the court order.
12. 177. The Government furnishes a judicial attestation to the effect that in May 1978, when Mr. Devandas Brenes was elected to be a member of the Legislative Assembly, the examining magistrate eliminated him from the proceedings, which he continued with respect to the other accused. The Government considers that it has demonstrated that these persons participated in an unlawful strike staged in an institution for which they did not work and not "in strikes called by workers belonging to their respective unions" it further states that neither the dismissals nor the measures taken to preserve law and order constituted breaches of the ILO Conventions on freedom of association.
13. 178. With regard to Mr. Sobrado Chaves, who, as stated above, was General Secretary of the Onion of Bank Employees of Costa Rica at the time of his dismissal, the Government also supplies the text of the judgement pronounced by the labour judge and confirmed on appeal, rejecting his claim against the bank. These judgements state that in connection with a collective dispute, Mr. Sobrado Chaves was appointed by the employees of the bank to be one of their representatives at a conciliation tribunal. The bank authorities considered that he was subsequently guilty of unjustified absences and requested authorisation from the courts to dismiss him, which was refused so long as the collective dispute was still pending. The bank dismissed him as soon as the dispute was settled in the judgement it is declared proven that this person absented himself from work 11 times over a period of two months without having given due notice. The court states that employers may not refuse time off to employees appointed to represent the workers at conciliation proceedings, but that this right of an employee is not unrestricted, but is limited to the time required to attend such proceedings and does not extend to other activities unconnected with the conciliation tribunal. In the case in question, according to the judgement, the repeated absences did not coincide with any of the hearings of the conciliation tribunal.

B. B. The Committee's conclusions

1. 179. The Committee observes that the Government has now supplied detailed information about these events, which occurred some time ago. It considers nevertheless that the texts of the judgements in question have been useful in helping it to reach its conclusions.
2. 180. The Committee and the Governing Body have constantly emphasised the importance of the principle that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment. In this very case, the Committee has pointed out that such a guarantee is also necessary in the case of trade union officials in order to give effect to the fundamental principle that workers' organisations must have the right to elect their representatives in full freedom. The Committee has nevertheless stated that this principle does not necessarily imply that the fact that a person holds trade union office confers on him immunity against dismissal irrespective of the circumstances. In certain cases the Committee has expressed the view that dismissal for absence from work without the employer's permission does not appear in itself to constitute an infringement of freedom of association.
3. 181. As concerns the dismissal of three general secretaries of organisations of workers in the public sector, the Committee observes that they took place in different circumstances and for different reasons, two of the persons concerned being accused of failing in their duty as employees to an extent considered by the country's courts to be sufficiently serious to justify their dis-missal in the other case, the official concerned was one of a group of workers who lost their jobs as a result of a forced reduction in staff.
4. 182. In these circumstances, the Committee notes that in the cases to which the complaints refer it has not been proved that there was any infringement of freedom of association. Nevertheless, whatever the grounds for these dismissals may have been, it appears desirable to draw attention to the inevitably prejudicial effects upon trade union organisations and their members, and upon industrial relations, deriving from situations of this kind. The Committee wishes to point out that in the public sector an effective means of helping to prevent such situations may be to put into practice measures inspired by the principles of the Labour Relations (Public Service) Convention, 1978 (No. 151), not only as concerns the protection of public employees against anti-union discrimination (Article 4 of the Convention) but also as regards the determination, through negotiation or other methods as provided for in the Convention, of the nature and scope of the facilities to be afforded, without prejudice to the efficient operation of the service concerned, to the representatives of recognised public employees' organisations (Articles 6 and 7).

The Committee's recommendations

1. 183. In these circumstances, with regard to these cases as a whole, the Committee recommends the Governing Body:
   • (a) as concerns the question of the protection of workers' organisations against possible acts of interference by employers, to draw the Government's attention once again, for the reasons indicated in paragraph 170 above, to the desirability of adopting special legislative measures in order to give full effect to this principle;
   • (b) with regard to the dismissal of trade union officials in the public sector:
   • (i) to take note of the fact that the Government has supplied the texts of the judgements pronounced in these cases, from which it appears that in the cases in question there has been no infringement of freedom of association;
   • (ii) nevertheless, with a view to preventing possible acts of anti-union discrimination and the harmful consequences deriving from the dismissal of trade union officials, to draw attention to the importance of putting into practice the measures indicated in paragraph 182 above;
   • (c) to bring this report to the notice of the Committee of Experts on the Application of Conventions and Recommendations.