Definitive Report - Report No 306, March 1997

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

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

1. 347. The Committee examined this case at its November 1996 meeting and presented an interim report to the Governing Body (see 305th Report of the Committee, paras. 165-182, approved by the Governing Body at its 267th Session (November 1996)). The Government sent new observations in a communication dated 6 January 1997. The Agrarian Development Institute Employees' Union (UNEIDA) (the organization concerned in the allegations of this case) sent information in a communication dated 24 January 1997 and the Latin American Central of Workers (CLAT) transmitted information in a communication dated 13 February 1997.
2. 348. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 349. In this case the complainant organization 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. 350. At its November 1996 meeting the Committee formulated the following conclusions and recommendations (see 305th Report, paras. 179-181):
3. The Committee 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.
4. 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 on 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).
5. 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.
6. B. The Government's reply
7. 351. In its communication dated 6 January 1997 the Government states, in response to the Committee's request for information, that before the restructuring process there were 976 officials at the Agrarian Development Institute (IDA); after the restructuring process there were 476 officials at the Institute. Before the restructuring process there were 31 trade union officers (who, according to the documentation sent by the Government, were executive committee members of UNEIDA and two other unions) and eight officers were dismissed in the context of the restructuring process (Alexis Cyrman Sanchez, Marcos Aguilar Vargas, Walter Quesada Fernández, Lorena Chacón Tellini, Walter Porras Campos, Francisco Molina Rojas, Elieth Rodríguez Cardos and Jeanette McQuiddy Artavia).
8. 352. The Government adds that, in compliance with the Committee's recommendations, notably in relation to the investigation into the dismissal of trade union officers and representatives, the Ministry of Labour, in a ministerial directive dated 6 January 1997, stressed the need for the National Labour Inspectorate to ensure the observation and respect of laws pertaining to working conditions. Nevertheless, the Government repeats that the termination of the officials mentioned in the complaint had resulted from the modernization project, based on technical grounds, which had been duly approved by the Ministry of Planning and Economic Policy and the Civil Service Court in accordance with prevailing regulations and guaranteeing at all times the right to due process and legitimate defence. The decisions made by the administration of the accused institution were not only duly approved at the top administrative level by the Ministry of Planning and Economic Policy but their legitimacy was also confirmed by the Constitutional Chamber of the Republic, which rejected the allegations of anti-union persecution made by the Union of the IDA. Hence, no doubt can remain about the action taken by the administration being in conformity with the law.
9. 353. The Government stressed that the termination of employment of the trade union officers in the IDA had been carried out on technical grounds owing to unavoidable staff reductions and was unrelated to their status as trade union officers, entirely in accordance with the provisions of section 192 of the Political Constitution which "authorizes the dismissal of public officials in the event of an unavoidable reduction of services, whether due to lack of funds or in order better to utilize available funds". The Government repeats the observations it made for the first examination of the case and requests that the complaint be retracted in its entirety given that it has been amply shown that no acts of anti-union discrimination occurred in this case.
10. 354. As regards the transfer of the trade union officers Mr. Mario Moya Benavides and Ms. Iriabel Zumbado, the Government explains that in response to the recommendations of the Committee on Freedom of Association, the Ministry of Labour requested the chairman of the IDA to examine the content of the Committee's recommendation. As a result of the Ministry of Labour's involvement and in keeping with the request made by the Committee on Freedom of Association, the executive president of the IDA, seeking to create the best possible industrial relations climate, requested that its board of directors approve the decision not to transfer either Ms. Iriabel Zumbado or Mr. Mario Moya. This request was favourably received and the transfers of these officials were annulled, thus complying with the Committee's recommendation.
11. C. Information provided by UNEIDA and CLAT
12. 355. The Agricultural Development Institute Employees' Union (UNEIDA) and the Latin American Central of Workers (CLAT) indicated in their communications of 24 January and 13 February 1997 that, during the restructuring process, out of a total of 21 trade union officers and representatives, 14 were dismissed (nine of these were officers of the UNEIDA executive committee; UNEIDA and CLAT provided a list of the 13 members of the UNEIDA executive board). According to UNEIDA's and CLAT's statistics, the number of workers before and after the restructuring is 809 and 413 respectively and its members represented and represent over 50 per cent of the workers at IDA.

D. The Committee's conclusions

1. 356. With respect to the dismissal of trade union officers and representatives of the Agrarian Development Institute Employees' Union, the Committee notes the Government's reaffirmation that: (1) the terminations of employment were not carried out on the basis of the trade union status of the persons concerned but were instead due to the process of restructuring and structural and operative modernization of the IDA, and were in keeping with technical criteria duly approved by the Ministry of National Planning and Economic Policy; (2) the highest judicial body, the Constitutional Chamber, rejected on their merits the appeals lodged by the officials involved who alleged anti-union persecution, and ruled that the action taken by the administration was in conformity with the law. The Committee also observes that according to the information supplied by the Government 500 officials were dismissed (eight of whom were trade union officers) of a total of 976 (of which 31 were trade union officers belonging to the executive committees of UNEIDA and two other unions).
2. 357. On the other hand, the Committee notes that, according to UNEIDA and CLAT, the number of workers before and after the restructuring (without taking into account - as the Government did - the officials classified as "day workers" and those in "special services") were 809 and 413 respectively. According to UNEIDA and CLAT (which refer only to UNEIDA and not to the other two unions at IDA), 14 trade union officers and representatives were dismissed out of a total of 21; of these 14, nine were on the executive committee which had a total of 13 members.
3. 358. On the basis of all the information, the Committee considers that the overall proportion of trade union officers of executive committees dismissed does not seem disproportionate from a numerical point of view taking into account the total number of workers affected by the restructuring process. Nevertheless, comparing the list of members (13) of the executive board furnished by UNEIDA with the names of the eight trade union officers who, according to the Government, were dismissed, it appears that seven out of the eight officers dismissed were members of the UNEIDA executive board. In the opinion of the Committee, an analysis of the facts tends to demonstrate that the UNEIDA leaders did not benefit from sufficient protection as trade union leaders.
4. 359. Consequently, the Committee requests the Government to take measures to facilitate the reinstatement in their jobs of the largest possible number of dismissed UNEIDA executive board members.
5. 360. As concerns the transfer of trade union officers Mr. Mario Moya Benavides and Ms. Iriabel Zumbado, the Committee notes the Government's comments with interest, and also notes that, in accordance with the Committee's request and in order to improve the industrial relations climate, the transfers of the officers mentioned have been annulled.

The Committee's recommendations

1. 361. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to take measures to facilitate the reinstatement in their jobs of the largest possible number of dismissed UNEIDA executive board members.