Interim Report - Report No 305, November 1996

Case No 1875 (Costa Rica) - Complaint date: 19-MAR-96 - Closed

Allegations: Anti-union discrimination in the context of a restructuring process

1. 165. The complaint is contained in a communication from the Latin American Central of Workers (CLAT) dated 19 March 1996. The CLAT sent additional information in a communication dated 24 May 1996. The Government replied in a communication dated 22 July 1996.
2. 166. 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. The complainant's allegations

1. 167. In its communications dated 19 March and 24 May 1996, the CLAT alleges that in the context of the restructuring of the public administration, tens of workers and a large number of trade union officers, in particular those of the Agrarian Development Institute Employees' Union (UNEIDA), have been dismissed or subjected to measures impairing the exercise of freedom of association; specifically, the complainant referred to the following trade union members (nine officers of the Executive Committee of UNEIDA, other representatives and members):
   • - Walter Quesada Fernandez, general secretary of UNEIDA, dismissed on 26 January 1996;
   • - Iriabel Zumbado, assistant general secretary of UNEIDA, was virtually forced to take leave in December 1995 and was subsequently informed that she had been transferred to the Chorotega region;
   • - Elieth María Rodríguez, representative of the women's secretariat of UNEIDA, was told to resign and was dismissed on 2 January 1996;
   • - Walter Arturo Porras Campos, treasurer and disputes secretary of UNEIDA, was investigated by the auditor of the Agrarian Development Institute (IDA) for allegedly altering invoices; he was later forced to go on leave and received notification of his dismissal on 3 January 1996;
   • - Jeannette Mac Quiddy Artavia, secretary of the minutes of UNEIDA, received her notification of dismissal on 3 January 1996. She operated the IDA radio and enabled trade union messages to be transmitted;
   • - José Fausto Osorno, secretary for regional affairs for UNEIDA, was notified of his dismissal on 3 January 1996 while he was on leave;
   • - Oscar Campos Hidalgo, representative of the Committee for Labour Affairs, Classification and Job Regrading of UNEIDA, was dismissed on 16 February 1996;
   • - Mario Moya Benavides, a substitute officer, was unilaterally transferred to the rural development programme;
   • - Alexis Cyrman Sánchez, general secretary for regional affairs; Luis Fernando Araya Benavides, press secretary; José Francisco Molina Rojas, finance secretary; Dennis Castellón Toval, substitute officer; Patricia Viales Ortega, UNEIDA representative in the Chorotega region; Ivonne Segura Esquivel, UNEIDA representative in the central Turrialba region, and Marco Antonio Aguilar Vargas, UNEIDA representative in the Chorotega region, were also dismissed as of 3 January 1996.
2. 168. The complainant adds that these measures were aimed at undermining the trade union, obstructing its work and consequently preventing the trade union from being involved in the restructuring process of the IDA. It should also be pointed out that the Board of Directors of the IDA did not take account of trade union immunity, the performance of these workers in their respective jobs or their seniority, and no final decision has been taken yet on the complaints presented.

B. The Government's reply

1. 169. In its communication of 22 July 1996, the Government states that, by agreement reached by the Board of Directors of the Agrarian Development Institute (IDA), a project for the structural and operational modernization of the IDA was approved on 10 October 1995.
2. 170. The modernization of the IDA was dictated by the historical need for an instrument ensuring efficient and effective management for the benefit of the Costa Rican farmer. It is essential to point out that consultations were held concerning the approval of this project with associations of farmers involved in Costa Rican agriculture and trade unions, when the observations of the labour committees set up under the agreement signed on 17 April 1995 were incorporated. As regards the termination of the employment relationship of the staff, included in the modernization project, this was based on technical grounds which had been duly approved by the Ministry of National Planning and Economic Policy.
3. 171. As regards the termination of employment of certain trade union officers included in the above-mentioned project, it is essential to point out that this did not take account of their trade union office; account was only taken of their status as officials of the IDA and the above-mentioned technical grounds; the IDA respected their right to be defended.
4. 172. It should be pointed out that in a letter dated 5 January 1996, Mr. Walter Quesada Fernández, general secretary of the IDA Employees' Union - UNEIDA, Elieth María Rodríguez, Jeannette Mac Quiddy Artavia, Walter Arturo Porras Campos, José Francisco Molina Rojas and José Fausto Osorno lodged an appeal for the protection of their constitutional rights (recurso de amparo) with the Constitutional Chamber of the Supreme Court of Justice, objecting to the termination of their employment. In their appeal they alleged that there had been a violation of the legal provisions concerning freedom of association and trade union immunity and of ILO Conventions Nos. 87 and 135.
5. 173. The appellants alleged that in their capacity as trade union officers protected by legislation, they could not be included in the plan to modernize the institution, and that the action taken by the administration constituted anti-union persecution and denial of the right to a defence and due process. The Constitutional Chamber (the highest jurisdictional body), in Decision No. 161-96 of 10 January 1996, rejected on its merits the appeal that had been lodged by the above-mentioned officials and ruled that the action taken by the administration was in conformity with the law. Clearly, in including trade union officers in the modernization process, the administration acted in conformity with the Political Constitution and international conventions, and the administrative measure does not constitute anti-union persecution.
6. 174. Similarly, in Decisions Nos. 162-96 and 175-96 handed down on 10 January 1996, the Constitutional Chamber rejected on their merits appeals that had been lodged by officials included in the modernization plan.
7. 175. Notwithstanding the decisions handed down by the Constitutional Chamber, the Ministry of Labour and Social Security showed its willingness to enter into dialogue by acting as mediator and holding three meetings with representatives of the Federation of Public Service Workers. These meetings were attended by representatives of the different trade unions of the Institute, who drafted a list of demands to be presented to the Board of Directors of the Institute. In a definitive agreement dated 23 January 1996, the Board of Directors stipulated that in accordance with the legislation in force, the demand made by the trade unions concerning the annulment of dismissals, compensatory alternatives and other incentives provided for in voluntary labour mobility procedures were not appropriate under the applicable legislation.
8. 176. The modernization process had been approved in accordance with the Constitution and the law, and to accept the demand would make it impossible to achieve the structural and operational modernization of the Institute, to the detriment of the service provided to the Costa Rican farmer, and would clearly impair the public service provided, since the efficiency and effectiveness of the administration would be affected.
9. 177. The Government concludes that there is no doubt that the allegations of anti-union persecution set forth in the complaint are rash accusations, since, as has been demonstrated, the goals of the plan to modernize the IDA never included staff reductions based on trade union membership, only on technical and objective grounds, all of which are supported by the legal framework in force.

C. The Committee's conclusions

1. 178. The Committee observes that in this case the complainant organization has alleged that officers and members of the Agrarian Development Institute Employees' Union (UNEIDA) were dismissed or transferred with the aim of undermining this trade union and preventing it from participating in the restructuring process of the Agrarian Development Institute (IDA).
2. 179. The Committee also observes that the Government emphasizes that (1) the terminations did not take account of the trade union membership of the persons concerned, but were part of a process of restructuring and structural and operational modernization of the IDA and were based on technical grounds which had been duly approved by the Ministry of National Planning and Economic Policy; (2) mediation by the Ministry of Labour and Social Security did not result in the IDA authorities' annulling the dismissals; (3) the highest jurisdictional body, the Constitutional Chamber, rejected on their merits the appeals lodged by the officials concerned, who had alleged anti-union persecution, and ruled that the action taken by the administration had been in conformity with the law.
3. 180. On previous occasions, the Committee has considered that it "can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions" (see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 935). In this respect, although the Committee observes that the Constitutional Chamber rejected the allegations of anti-union persecution put forward by the officers and members of the trade union, it cannot but note that, according to the allegations of the complainant organization - which were not denied by the Government - the restructuring process resulted in the dismissal of nine officers on the executive committee of UNEIDA and several other representatives. The Committee notes that the complainant and the Government do not agree as to the anti-union nature of the dismissals. The Committee also emphasizes the advisability of giving priority to workers' representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection (Digest, op. cit., para. 961).
4. 181. In these circumstances, prior to reaching definitive conclusions, the Committee requests the Government and the complainant organization to indicate the total number of workers at the Agrarian Development Institute before and after the restructuring process, the number of trade union officers and representatives dismissed and the number of trade union officers and representatives prior to the restructuring process. In any event, the Committee requests the Government to respect the principles mentioned above and to investigate whether the dismissal of the UNEIDA officers and representatives in the context of the restructuring process was due to their trade union activities, in which case, they should be reinstated in their posts. Furthermore, the Committee requests the Government to review the transfers of Mr. Mario Moya Benavides and Ms. Iriabel Zumbado. The Committee requests the Government to provide information on the measures taken in this respect.

The Committee's recommendations

1. 182. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government and the complainant organization to indicate the total number of workers at the Agrarian Development Institute before and after the restructuring process, the number of trade union officers and representatives dismissed and the number of trade union officers and representatives prior to the restructuring process.
   • (b) In any event, the Committee requests the Government to respect the principles mentioned in the conclusions and to investigate whether the dismissal of the UNEIDA officers and representatives in the context of the restructuring process was due to their trade union activities, in which case, they should be reinstated in their posts.
   • (c) The Committee requests the Government to review the transfers of Mr. Mario Moya Benavides and Ms. Iriabel Zumbado.
   • (d) The Committee requests the Government to provide information on the measures taken in this respect.