Interim Report - Report No 187, November 1978

Case No 859 (Costa Rica) - Complaint date: 20-JUN-75 - Closed

350. The Committee already examined these cases in November 1977 and in May 1978; on each occasion it submitted interim conclusions, in paragraphs 169 to 220 of its 172nd Report and in paragraphs 117 to 143 of its 181st Report, respectively. The Governing Body approved the first of these reports at its 204th Session (November 1977) and the second at its 206th Session (June 1978). The Government sent further information in a letter dated 19 September 1978.

1. 350. The Committee already examined these cases in November 1977 and in May 1978; on each occasion it submitted interim conclusions, in paragraphs 169 to 220 of its 172nd Report and in paragraphs 117 to 143 of its 181st Report, respectively. The Governing Body approved the first of these reports at its 204th Session (November 1977) and the second at its 206th Session (June 1978). The Government sent further information in a letter dated 19 September 1978.
2. 351. 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. 352. When it last examined these cases, the Committee's conclusions related to the dismissal and arrest of trade union leaders and to interference by the Social Security Fund in a trade union assembly.
2. 353. With regard to the latter point, the complainants had alleged that the Costa Rican Social Security Fund had interfered with the holding of the union's general assemblies; in particular, it had engaged in manoeuvres to impose certain persons on the trade union leadership and to remove the new executive Committee which had been legally elected. The Government had made no observations on this point and the Committee had expressed its regret that the Government had not done so.
3. 354. Referring to the conclusions it had reached in an earlier case relating to Costa Rica, the Committee pointed out that in ratifying Convention No. 98 the Government had undertaken to secure the implementation of the guarantees contained in Article 2 of the said Convention and was accordingly under the obligation to take steps to ensure that workers' organisations, in particular, were provided by the national legislation with the means to protect themselves against interference by employers or their associations. Although Costa Rican legislation contained no specific provisions to this effect, a draft law concerning collective labour relations did contain them; the draft law had been submitted to the legislative assembly but had not yet been adopted.
4. 355. On the recommendation of the Committee, the Governing Body, in June 1978, urged the Government to adopt without delay the draft provisions regarding the protection of workers' organisations against acts of interference by employers or their organisations. In its letter of 19 September 1978, the Government states that it has taken note of these observations.
5. 356. The allegations outstanding also refer to the arrest of Luis Fernando Alfaro Zúñiga, General Secretary of the Trade Union Association of Employees of the Costa Rican Electricity Institute, and of Mario Devanda Brenes, General Secretary of the National Federation of Public Service Workers (FENATRAP) and of the National Institute of Housing and Town Planning. According to the complainants, both had first been dismissed from their jobs; subsequently, because of the strike called by the workers of the establishments in which they had been employed, they were charged by the public prosecutor's office with incitement to strike and other offences. Both were being held at the public prison of Heredia, along with common criminals.
6. 357. The Government had replied that Luis Fernando Alfaro Zúñiga had made subversive speeches during the strike called on 19 July 1976 at the Costa Rican Electricity Institute. The Public Prosecutor had brought charges against him of riot, incitement to a collective stoppage of services and conduct prejudicial to public order. Mario Devanda Brenes had been charged with the same offences. The Government stated that these two persons were to be brought to trial before the Higher Court of San Jose, which had ordered them to be released on bail of 50,000 colons each.
7. 358. Proceedings had therefore been instituted against the two trade unionists for strikes in public services. The Committee recalled, in this connection, that recognition of the right of public employees to organise did not imply the right to strike. Nevertheless, since the right to strike is an essential means available to the workers and their organisations for defending and promoting their occupational interests, where strikes are prohibited or severely restricted in essential services or in the civil service, adequate guarantees should be ensured to safeguard the interests of the workers to the full. Among such guarantees the Committee has made special mention of adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards are binding in all cases on both parties; these awards, once they have been made, should be fully and promptly implemented.
8. 359. In the present case, section 368 of the Labour Code prohibits strikes in the public services, and any disputes which may arise between employers and workers in these sectors must be referred to the labour courts for compulsory settlement. Nevertheless, in an earlier case relating to Costa Rica, the complainants alleged that, under the special law setting up the Costa Rican Electricity institute, this body was not obliged to submit to compulsory arbitration. The Government had supplied no information on this point. The Committee considered that, if the allegation was correct, the workers of the Institute would be deprived not only of the right to strike but also of the other safeguards mentioned to protect their occupational interests. In June 1978, the Governing Body, on the recommendation of the Committee, had requested the Government to state whether the procedure for the peaceful settlement of disputes provided for under section 368 of the Labour Code was applicable to disputes in the Costa Rican Electricity Institute and the National Institute of Housing and Town Planning. The Governing Body had also requested the Government to transmit the texts of the judgements pronounced in the cases of Alfaro Zúñiga and Devandas Brenes.
9. 360. In its letter of 19 September 1978, the Government states that it has taken note of the principles and considerations outlined above and specifies that section 368 of the Labour code is fully applicable to the National Institute of Housing and Town Planning and the Costa Rican Electricity Institute, pursuant to section 369, paragraphs (a) and (d), of the Code:
   • For the purposes of the last preceding section (368) the following shall be deemed to be public services:
     • (a) all work performed by persons in the employment of the State or a state institution, if the work in question is not of the same nature as work performed also by private undertakings carried on for profit;
     • (d) work performed by employees who are strictly indispensable for the maintenance in operation of private undertakings which cannot suspend their services without causing serious and immediate prejudice to public health or public economy in general, such as clinics and hospitals, and municipal hygiene, cleaning and lighting services;
   • The Government adds that the trial of Alfaro Zúñiga and Devanda Brenes is still before the Higher Penal Court, following an appeal by the defence.
10. 361. The Committee takes note of this information.
11. 362. Finally, the Committee had received allegations relating to the dismissal of trade union officials. According to the Complainants, Carlos Manuel Acuña Castro, Deputy General Secretary of the National Union of Social Security Employees (UNDECA), had been dismissed on 17 June 1975 from his post as legal inspector at the Social Security Fund on the grounds that he had been attending courses at the law faculty, whereas in reality, according to the complainants, he had merely sat for the examinations with the authorisation of his employer. The complainants considered that this situation was the consequence of the complaint presented to the Council of State on the subject of the interference of the Social Security Fund in the general assembly of the union and the participation of Acuña Castro in the elections. It was further alleged that Cristián Sobrado Chaves, General Secretary of the Union of Bank Employees of Costa Rica (UNEBANCO), had been dismissed without due cause on 24 February 1977, after the Higher Labour Court had pronounced the dismissal unjustified. Furthermore, according to the complainants, this measure was a violation of the arbitration award in force at the Bank. Sobrado Chaves had been reproached with unjustified absence from work although, according to the complainants, he had absented himself with the authorisation of his immediate supervisors to carry out activities related to a collective dispute which the bank workers had brought before the labour judge.
12. 363. The Government affirmed that, according to the Social Security Fund, Acuña Castro's dismissal constituted a sanction for a misdemeanour committed by a worker and should not be artificially connected with other events which had nothing to do with the case. Nevertheless, the Labour Court and, subsequently, the Higher Labour Court of San José had judged that the suit filed by Acuña Castro against the Social Security Fund was receivable. On 18 August 1976, the Division of Cassation of the Supreme Court had confirmed this decision. It stated that the judges considered that the reasons given by the employer for the dismissal of Acuña Castro were unjustified and ordered the Fund to pay him nine months' wages as compensation, taking account of his seniority in employment. The judges nevertheless considered that Acuña Castro had not proved that he had been dismissed on account of his trade union activities and was accordingly not entitled to compensation on this account.
13. 364. The Government further stated that, on 19 August 1976, the Bank of Costa Rica had applied to the labour courts which were examining the collective labour dispute raised by the bank workers for authorisation to dismiss Cristián Sobrado Chaves. The Bank had alleged that the accused had committed unpardonable breaches of discipline. On 24 February 1977, Sobrado Chaves was dismissed on the grounds of unjustified absences from work. The Bank informed him that, since the arbitration of the collective labour dispute was completed, it was at full liberty to apply the disciplinary sanctions corresponding to the misdemeanour concerned. The Government indicated that the case in question was now under examination by the labour judge of San José but that the proceedings, which began on 28 April 1977, were not yet completed.
14. 365. The Committee noted the decision of the Supreme Court concerning Acuña Castro. In this connection, it pointed out on a number of occasions that a worker may frequently find it difficult or even impossible to furnish proof that he has been the victim of anti-union discrimination. In the present case, the competent courts had judged that the trade union official had been dismissed without just cause. In these circumstances, the Governing Body, on the recommendation of the Committee, had requested the Government to envisage the possibility of reinstating Acuña Castro in his employment. The Committee further noted that Sobrado Chaves had been dismissed a long time ago and that the legal proceedings were not yet completed. It recalled the importance which it attaches to the application of a rapid procedure for the examination of alleged cases of dismissal because of trade union activities, and the Governing Body had requested the Government to transmit, as soon as it was pronounced, the text of the judgement handed down in the case of Sobrado Chaves, with the reasons adduced therefor.
15. 366. In its letter of 19 September 1978, the Government states that Acuña Castro held for several months the post of chief of the technical co-operation and international affairs unit of the Ministry of Labour and Social Security, which he had left of his own free will to take up a post in the private sector. As regards Sobrado Chaves, adds the Government, this case is still before the Labour Court but the judgement is expected to be handed down very soon and will be communicated to the ILO as soon as it is pronounced.

B. B. The Committee's conclusions

1. 367. The Committee takes note of this information. However, it feels bound to draw attention once again to the considerable time that elapsed between the dismissal of Sobrado Chaves on 24 February 1977 and the institution of legal proceedings. It wishes to repeat that a particularly rapid procedure should be applied for the examination of alleged cases of dismissal because of trade union activities. Any worker who is dependent on his employment will inevitably have difficulty in waiting for a long time once he has been deprived of his job because of what appears to him to be antiunion discrimination. Some countries have tackled this problem by means of emergency summary procedures; in the view of the Committee, adoption of such procedures on a temporary or permanent basis would undoubtedly help to improve the system of protection against forms of anti-union discrimination, especially dismissals.

The Committee's recommendations

1. 368. In these circumstances, the Committee recommends the Governing Body:
   • (a) to urge the Government once again to secure the adoption without delay of the draft provisions regarding the protection of workers' organisations against acts of interference by employers;
   • (b) to take note of the information communicated by the Government concerning the existence of a compulsory arbitration procedure where strikes are prohibited, as in the case of the Costa Rican Electricity Institute and the National Institute of Housing and Town Planning and to request it to transmit the texts of the judgements pronounced in the cases of Alfaro Zúñiga and Devandas Brenes, with the reasons adduced therefor;
   • (c) to draw the Government's attention, for the reasons set forth in paragraph 367, to the importance of a rapid procedure for examining alleged cases of dismissal because of trade union activities, to request it to communicate, as soon as it is pronounced, the text of the judgement handed down in respect of Sobrado Chaves, with the reasons adduced therefor, and to note further the information provided by the Government on Acuña Castro;
   • (d) to take note of the present interim report.