Interim Report - Report No 316, June 1999

Case No 1984 (Costa Rica) - Complaint date: 21-SEP-98 - Closed

Allegations: Acts of anti-union discrimination and intimidation in plantations; ineffectiveness and excessive delays in the processing by the authorities of complaints of trade union persecution

1. 391. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) sent this complaint in a communication dated 21 September 1998, additional information in a communication dated 28 September 1998, and new allegations in a communication dated 5 May 1999. The Government sent its observations in communications dated 20 January and 16 March 1999.
2. 392. 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. The complainant's allegations

1. 393. In its communication of 21 September 1998 the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) submitted a complaint against the Government of Costa Rica for its failure to guarantee the right to organize and to bargain collectively of its affiliate in Costa Rica, the Coordinating Organization of Banana Growers' Trade Unions of Costa Rica (COSIBA), which is a federation.
2. 394. The IUF alleges that the Government does not ensure that its own legislation and legal decisions with respect to the exercise of trade union rights in banana plantations are properly respected or effectively applied. Various forms of repression of trade union leaders and trade unionists are taking place, including the compiling of blacklists, dismissals without just cause, assigning of the most strenuous tasks in a discriminatory manner and prohibiting trade union leaders access to the plantations. Over 150 cases are pending before the judicial bodies (some take as long as three or four years) and 60 are awaiting the decision of the administrative authorities. Some of these cases relate to violations of trade union rights committed over three years ago. This implies a refusal to grant trade union organizations a rapid solution to violations of this kind, leading to the dismissal of the workers involved and a loss of interest in the procedures, particularly as a result of the blacklists exchanged by employers. Moreover, the Ministry of Labour and Social Security has done nothing to remedy this situation in spite of the handing down of more than 13 legal decisions ordering them to do so. According to the IUF, the Ministry is ineffective and delays the processing of complaints of trade union persecution and unfair practices.
3. 395. The IUF attaches to the complaint two statements by COSIBA dated 26 July and 7 September 1998 in which specific charges are made by its affiliated trade unions with respect to a number of banana companies (Bananera Isla Grande, Proyecto Agroindustrial de Sixaola, Chiriquí Land Company, Compañía Bananera del Atlántico).
   • First complaint by COSIBA
4. 396. COSIBA's first complaint is as follows:
   • -- Agricultural Workers' Trade Union of Limón (UTRAL): at present (this complaint was submitted to the Committee in September 1998) the trade union has pending before the courts of the Province of Limón a socio-economic collective dispute in which it is seeking to enter into negotiations with the enterprise Bananera Isla Grande S.A. (which belongs to Chiquita Brand). The decision to submit a legal instrument of this kind to the courts is due to the enterprise's refusal to recognize the trade union or to enter into any type of negotiations. As regards the initial results of this action, the Civil and Labour Court of First Instance of the Atlántico-Limón region upheld the grievance, giving the enterprise 24 hours to appoint its representatives for negotiations -- which constitutes a major achievement given its implications -- thereby obliging it to begin the negotiation process. Although the enterprise was notified by both the trade union and the courts of the submission of the grievance, it did not stop its harassment of the workers who had signed the list of claims, despite the fact that the Labour Court ordered them not to engage in any type of reprisals. Furthermore, as a preventive measure the trade union appealed to the Ministry of Labour not to authorize any type of direct arrangement proposed by the enterprise, permanent committee or solidarity associations. It also requested an official inspection of the plantation, citing a number of examples of disregard for workers, but surprisingly the results of this inspection were detrimental to the workers, maintaining that they did not have the necessary official documents and allowing the enterprise to use this to nullify the complaint. Most of the workers have worked up to six years for this enterprise and have never encountered this type of problem before. It is thought that the reason is because the workers subscribed to a collectively negotiated instrument, as in all the plantations located in Sixaola there are workers who fit the same description. Perhaps the enterprise's reaction explains why 100 per cent of the workers supported the socio-economic grievance. Most of the workers at Isla Grande are of Guaymie origin, coming from Panama but working in Costa Rica.
   • -- In the plantations of the enterprise Proyecto Agroindustrial de Sixaola S.A. (PAIS S.A.), owned by the National Banana Corporation which is supposedly the regulating body of the banana sector, and in which the State of Costa Rica is a shareholder, the workers are harassed by the enterprise management to resign their membership of the trade union. The enterprise's officials have used pressure and blackmail and in some cases have even dismissed workers simply because they belong to the trade union. Immediately upon the workers deciding to join the trade union, the enterprise installed a security door to stop the trade union leaders entering and to monitor the affiliated workers. Security guards also appeared, behaving in an aggressive and threatening manner.
   • -- The Workers' Trade Union of the Chiriquí Land Company (SITRACHIRI) has a collective agreement in force with the Chiriquí Land Company which is owned by Chiquita Brand. This trade union has succeeded in maintaining a collective agreement with numerous benefits for its workers; moderate success has been achieved in providing workers with a certain degree of dignity. For this reason this enterprise is using countless ruses in its quest to put an end to the only collectively negotiated instrument that currently exists in the banana plantations and has attacked the trade union leaders, accusing them of various invented actions. For example, the workers in plantations 96 and 97 at the Chiriquí Land Company (Chiquita Brand) presented a document in which they requested the division manager to intercede to encourage Mr. Ricardo Hernández, an official in the Human Resources Department, to adopt a position of respect for human rights, as he is an aggressive, insulting person who consistently violates the rights established in the collective agreement. The company took an aggressive stance in its reply to the trade union. A complaint was even made against the general secretary of SITRACHIRI alleging that some signatures were not actually attributable to the workers. The Coordinating Body of Banana Unions brought in its lawyer and is currently requesting that a handwriting test be carried out and also that preparations be made to submit a counter-claim because what the company is saying through Mr. Ricardo Hernández is false. The only definite fact is that this particular official is harassing unionized workers. Similarly, the enterprise has managed in a variety of ways to manipulate certain workers into submitting complaints and claims against the trade union and its leaders in order to harass and discredit the organization. To conclude, the executive committee is being severely persecuted.
   • -- The Industrial Trade Union of Agricultural, Livestock and Similar Workers of Heredia (SITAGAH) operates in the Sarapiquí sector (Heredia Province) in the plantations of the Compañía Bananera del Atlántico (Chiquita Brand). At no time has the enterprise let up from fruitlessly harassing the workers not to join the trade union, and seeing their efforts frustrated as the workers continue to become members, they persecute them using a number of the methods described at the beginning of the complaint. There has been such extensive and heavy pressure that some workers have gone to the offices of the trade union in order to resign their membership, following the instructions of the enterprise management. Sworn statements to this effect have been made by the workers. All the violations described in this complaint have been submitted to the Ministry of Labour and Social Security which has been entirely inefficient and has drawn out the proceedings for up to three years, leaving the trade union and its affiliates in a state of defencelessness. This has forced SITAGAH to appeal to the Constitutional Chamber to have its rights upheld, and more than 13 times the Ministry of Labour and Social Security has been found guilty of delaying the proceedings and required to pay the damages caused. To illustrate this situation, the following rulings have been handed down by the Constitutional Chamber: 2724-96, 1947-97, 4298-97, 5854-97, 6483-97, 182-98, 337-98, 339-98, 340-98, 338-98, 619-98, 1351-98, 2662-98.
5. 397. The IUF adds that in the weeks following the first written declaration, the violations of trade union rights at the Costa Rican plantations not only continued but in fact increased. On 17 August 1998, the Isla Grande plantation not only refused to reinstate workers as it had been ordered by law, but dismissed 90 more, in particular immigrants who for many years had travelled every day from Panama. The police and Costa Rican immigration officials also cooperated with the company refusing to allow these workers to cross the border for three days, using lists supplied by the company to pick out the workers who supported the trade union in order to treat them in this discriminatory manner. The company then alleged that these workers had abandoned their posts and refused to give them work. According to the IUF, the trade union held two meetings with representatives of the Ministry of Labour but no measures have been taken to remedy the violations of trade union rights.
   • Second complaint by COSIBA
6. 398. The IUF also sends the text of the second written declaration by COSIBA dated 7 September 1998 relating to the enterprise Bananera Isla Grande S.A. in which it relates the ongoing harassment of workers affiliated to the trade union who had signed the socio-economic collective dispute, consisting of pressuring the workers to sign blank pieces of paper in order subsequently to dismiss them and undermine the grievance; moreover, the workers are constantly being threatened by the foremen Enrique Urbina Mairena and José Santamaría Gabarrete among others, Alicio Ellington Ellington (office worker), Ricardo Hernández Coto in labour relations at the Chiriquí Land Company (Chiquita), the solidarity promoter Froylan Jiménez Salas and Mr. Adrián Alvarado Morales, the plantation manager, who put pressure on workers to join the Solidarity association they have tried to set up at the plantation, using arguments such as "it will benefit you whereas all the trade union does is give you problems", "the enterprise could shut down operations" and "it won't negotiate with the trade union". In addition, workers were shut in their offices to pressure them into signing the abovementioned blank sheets of paper. It was proposed to the workers that they sign a "direct arrangement" with the enterprise which is what happened on 14 July 1998, just four days after the workers had submitted the grievance to the courts. For this purpose they were taken to a private meeting at the home of the plantation manager in the company of Mr. Ricardo Hernández Coto, where a series of offers were made to the committee members such as the separate negotiation with them of high salaries and better working conditions. They were shown films and videotapes relating to the strikes that took place in 1984 in the south of Costa Rica and the trade union was blamed for the subsequent withdrawal by the Compañía Bananera de Costa Rica from that region; they were told that the strike had led to misery and abandoned plantations and if they did not want the same thing to happen at Sixaola they had to "negotiate" the "direct arrangement" being proposed to them. On that occasion attempts were even made to inebriate the workers' representatives in a restaurant. When the indigenous workers refused the proposals they were called "stupid and idiots" by the enterprise's representatives.
7. 399. The day after the submission of the grievance (10 July 1998) a worker who had signed the list of claims and who was a member of UTRAL, Samuel Abrego Abrego, was dismissed. The workers Manuel Pineda Becker, Ernesto Abrego Santos, Alejandro Palacios Becker and Hilario Jiménez Miranda were unable even to sign the list of claims as they were dismissed when the enterprise became aware of their intention to sign. More recently, the following workers were dismissed: Dionisio Tomás Robinson, Seferino Eugenio Jaen, Venancio Abrego Abrego, Valentín Abrego Santos, Pineda Salazar Marchena, Clemente Abrego Ochi, Genio Pineda Salazar, Leonel N. García Estribí, Alejandro Gustavino Chamorro, Celestino Pinda Beker. All these workers have signed the list of claims and are members of the UTRAL trade union. On 17 August 1998, at the request of the representatives of Isla Grande S.A. and the other enterprises operating in the region, troops from the Civil Guard, Sixaola Commando, on the orders of Major Carlos Brenes, together with immigration officials and in the presence of representatives from the enterprise, blocked the workers at their respective workstations. In order to carry out the operation, which according to statements by Major Brenes was to target illegal Nicaraguan migrants, the Civil Guard troops had lists of workers affiliated to the trade union and of the signatories of the collective disputes and these workers were immediately returned to their place of origin. The enterprise' objective was to stop the workers reaching their posts in order subsequently to dismiss them for unjustified absence as in the case of Proyecto Agroindustrial Sixaola S.A. (PAIS S.A.), a subsidiary of the National Banana Corporation (CORBANA) in which the State of Costa Rica is the majority shareholder and which sells to Chiquita, which is currently seeking to dismiss workers affected by the "Civil Guard and Immigration Operation" carried out on 17, 18 and 19 August in which the foremen of this enterprise played a special role as "police officers" and "judges". Despite the complaint immediately lodged by the trade union, on the morning of 19 August over 100 workers were dismissed from the plantation, including managerial staff and foremen to give the impression that it was not a case of trade union persecution.
8. 400. In its communication dated 28 September 1998, the IUF alleges that the conditions of Chiquita workers in Costa Rica are not improving at all as regards trade union freedoms and the free movement of trade union leaders. More specifically it indicates the following:
   • -- the security doors and security guards continue to be a problem in the Sarapiquí sector where they are still obstructing the entry of its leaders and affiliated workers, specifically at "Compañía Bananera Gacelas" where affiliation is growing rapidly;
   • -- at "Isla Grande S.A." the subsidiary of Chiquita is carrying out a sham sale to another subsidiary enterprise of Chiquita called "Chiriquí Land Company, División Sixaola", with the aim of undermining the socio-economic collective dispute submitted by the workers. As is already known, the grievance was allowed and the administrative means of redress have now been exhausted which is why the application for a legal strike was submitted to the labour judge of the Province of Limón. A large number of the workers have still not been reinstated in their posts, in spite of the judge's decision ordering the immediate reinstatement of all the workers dismissed in retaliation for having presented the collective dispute;
   • -- the campaign being waged against the Workers' Trade Union of the Chiriquí Land Company (SITRACHIRI) continues with a view to eliminating the existing collective agreement; this campaign is led by Mr. Ricardo Hernández Coto, the enterprise's industrial relations manager, who has apparently been contracted for this purpose. With the same vigour a similar campaign is being waged in favour of "solidarity" with a promoter from the Juan XXII Social School having been called in for this purpose. The executive committee of the solidarity association imposed by the Chiriquí Land Company is made up of administrative representatives, in contravention of legislative provisions established to regulate solidarity associations.
9. 401. Finally, in its communication of 5 May 1999, the IUF alleges that the banana company Chiriquí Land Company dismissed 16 workers of the Isla Grande S.A. agricultural complex, who wanted to join the Agricultural Workers' Union of Citron. These facts took place on 30 April 1999, a few days after their confirmation of membership had been transmitted to the company, in order to have their union dues checked off. The workers, like many of those who are employed by the Chiriquí Land Company (Chiquita, Unit 490) have no protection against occupational risks, are not affiliated to Costa Rica Social Security, and their salaries are not linked to the pay benchmarks set by the National Pay Board, since they were lowered to 5,000 colons (US$17) for two full weeks of work, without a single day of rest. This salary is also lower than the one agreed upon in their employment contract. In addition, following the fabricated dismissal motives, Mr. Gaitán Fernández (steward of the Trade Union of Workers of Agriculture, Cattle Raising and Associated Industries, and one of the most militant members of that union) was recently dismissed by the Gacelas agricultural enterprise.

B. The Government's reply

1. 402. In its communication of 20 January 1999, the Government points out firstly that the complainant's allegations of violations of trade union rights are imprecise and that there is no record of such complaints at the Ministry of Labour and Social Security. Whatever the case may be, and considering among other things the magnitude of the communication under examination, the lack of evidence to confirm the claims contained in the complaint, the vagueness of its content and above all the deadlines given for the Government's response, the competent national authorities proceeded to carry out an examination of the investigations into trade union persecution and/or unfair labour practices submitted by the trade unions involved in Case No. 1984. The protection of trade union rights is one of the Government's principal activities and one to which it dedicates considerable attention. The Constitution and the legal system guarantee trade union rights and Costa Rica has ratified Conventions Nos. 87, 98, 135 and 141. On the basis of this concern for trade union rights, in May 1998 the Executive Branch submitted for the consideration of the Legislative Plenary, in accordance with the law, a bill for constitutional reform prepared with the technical assistance of the ILO, which would remove the prohibition for foreigners to exercise management positions or positions of authority in trade unions as prescribed in the section under examination.
2. 403. Furthermore, it should be noted that in the current legal system, freedom of association is clearly established in Convention No. 87 of the International Labour Organization ratified by Costa Rica. This instrument includes freedom of association and trade union autonomy. Freedom of association is recognized on two levels, both individual and collective. On the collective level, the establishment without the need for previous authorization of trade union organizations that cannot be dissolved and, on the individual level, the possibility of freely joining such organizations. Article 7 of the Constitution confers "higher authority to laws" to the international Conventions approved by the Legislative Assembly. Many ILO Conventions, 46 in total, have been incorporated into the legal system of Costa Rica in this way and in keeping with the letter of the Political Constitution, are observed in a general and compulsory manner.
3. 404. Furthermore, the Labour Code which dates from 1943 takes up the main principles concerning the protection of freedom of association contained in the Political Constitution and the abovementioned international labour Conventions and regulates them in sections 54-64 and 332 et seq. Among the serious attempts to modernize labour legislation and with the aim of developing constitutional standards pertaining to freedom of association and international Conventions, above all Conventions Nos. 87 and 98, the Legislative Assembly passed Act No. 7360 of 12 November 1993 which amends the Act concerning solidarity associations, the Labour Code and the Organization of the Ministry of Labour and Social Security Act. Among the most important reforms incorporated into the Labour Code by this Act it is important to underline the addition of Chapter III concerning "protection of trade union rights", which guarantees effective protection against all forms of anti-union discrimination. In effect, this chapter bans any "acts or omissions that tend to avoid, restrict, constrain or prevent the free exercise of the collective rights of workers, their trade unions or associations of workers" establishing also that "any act originating from them is absolutely null and void and will be penalized according to the form and conditions indicated in the Labour Code, its supplementary or related Acts, for the infringement of prohibitive provisions". As confirmation of the above, the legislation under reference provides that the members of trade unions in the process of being set up (for a period of no more than four months) enjoy labour stability, as do a certain number of trade union leaders (while exercising their duties and for six months afterwards) and candidates to the executive committee (for three months from the time their applications are made). In addition, Act No. 7360 establishes, in the event of the dismissal without just cause of workers protected by this stability, that "the competent labour judge will declare this dismissal null and void and will consequently order the worker's reinstatement and the payment of the arrears of wages, as well as the penalties to be imposed on the employer in keeping with this Code and its supplementary or related Acts". It establishes that "acts or omissions committed by employers, workers or their respective organizations which transgress the standards provided in the Conventions adopted by the International Labour Organization and ratified by the Legislative Assembly, and the standards provided in this Code and in social security legislation, constitute punishable offences". In the case of violations of these rights, the worker or his or her organization can have recourse to the relevant administrative body, in this case the National Labour Inspection Directorate of the Ministry of Labour and Social Security or directly to judicial means of redress. This Act grants considerable powers to the National Labour Inspection Directorate for the investigation of violations that have been brought to its attention, in keeping with the provisions made by the Constitutional Chamber on this subject in rulings Nos. 5000-93 and 4298-97. The Act empowers the National Labour Inspection Directorate to use "the means it considers to be appropriate" for this purpose which means that the investigating inspector can visit the work centre and obtain all available information; to this end the inspector can review payrolls, books, take statements, etc.
4. 405. If the existence of unfair labour practices is discovered, the National Director of the General Labour Inspectorate informs the competent legal authority with priority over all other matters. Moreover, and in order better to protect the worker, the decision ordering the case to be transferred to the judicial authority cannot be appealed. If the violation of trade union rights is proven through legal channels the judge will order the reinstatement of the worker and the payment of the arrears of wages, without prejudice to the penalties to be imposed on the employer in accordance with the provisions of the Labour Code and its supplementary and related Acts. In short, Costa Rica has broad legal protection in the trade union sphere, contained in the regulatory framework outlined above, namely the Political Constitution, ILO Conventions and the Labour Code.
5. 406. Furthermore, the Constitutional Chamber of the Supreme Court of Justice has also participated in protecting trade union freedoms, handing down relevant rulings in this area which are binding erga omnes except for itself. The following are some of these rulings:
   • -- Ruling No. 5000-93 handed down at 10:09 on 8 October 1993: this establishes that the dismissal of a workers' representative violates the fundamental right of association as the workers are deprived of their leaders and therefore of the appropriate and legitimate defence of their personal and trade union rights. The Constitutional Chamber determined that "a dismissal of workers' representatives, whether unionized or not, is legally inadmissible (even if the employers pay social benefits) as it violates the special protection granted to representation under the Political Constitution, international Conventions and other laws, to the personal detriment of the representatives and the workers they represent and whose fundamental right of association is also violated as a result of this dismissal, as they are deprived of their leaders and therefore of the appropriate and legitimate defence of their personal and trade union interests ...". Similarly, the Chamber provided that "the dismissal of regular workers must be resolved with equal regulatory support when the express or tacit reason is their membership of an association or trade union because this too violates their fundamental rights. It should be noted that a link to such an organization as a regular member brings into play higher values of good fellowship and social and labour harmony vis-à-vis which economic compensation, represented by the payment of social benefits, lacks legal validity because the will of the employer is constitutionally and legally restrained or restricted from the general perspective of workers' human rights and from the specific perspective of labour law which protects general public interests ...". This protection was subsequently confirmed in Costa Rican law with the issuing of Act No. 7360 of 4 November 1993.
   • -- Ruling No. 1696-92 handed down at 15:30 on 23 August 1992 and its corresponding addition and clarification handed down at 15:00 on 30 October 1992 (relating to public sector workers).
   • -- Ruling No. 4298-97 handed down at 16:45 on 23 July 1997 and the corresponding administrative guidelines: as regards the procedure for complaints of alleged trade union persecution and unfair labour practices, it is indicated that: "... For this purpose a procedure was established which begins with administrative means of redress before the National Labour Inspection Department of the Ministry of Labour and Social Security whose work is restricted to carrying out an investigation to determine whether or not there are grounds to submit a complaint through the competent legal channels". The procedure foreseen in sections 363 et seq. of the Labour Code is a special one as its main function is to ensure harmony in relations between workers and employers and as a result legal provisions of an industrial nature are evaluated without the fundamental objective being to find a final solution to the conflict between the parties but, as previously indicated, simply to determine whether or not there are grounds for submitting the complaint to the competent legal authority. To summarize the procedure established in the Labour Code: (1) it can be initiated at the request of one of the parties or by operation of law; (2) if it is clear from this and the documents submitted that the merits of the case should be heard, the parties involved will be summoned to a hearing in which all the evidence considered necessary will be submitted; (3) on the assumption that the documents and the evidence provided by the complainant are insufficient to determine whether or not it is necessary to examine the merits of the case, the National Labour Inspection Directorate shall order the appointed inspector to carry out a preliminary investigation in which he or she can look into the alleged violations using the means he or she considers appropriate; (4) if after this preliminary investigation the inspector considers that there should be an examination of the merits of the case, he or she will grant the parties a hearing, pursuant to section 365 of the Labour Code, to allow them to give statements on the facts investigated; (5) once this hearing has taken place a record will be drawn up and the report will be transmitted to the National Director of Labour; (6) the National Director of Labour then decides whether to submit the request to the competent judicial authority or to order the shelving of the file on the basis of a substantiated decision against which a discretionary remedy and an appeal before the Minister of Labour are possible. Concerning the procedure, the Chamber referred to adds: "... it is reasonable to expect that the National Labour Inspection Directorate shall respect a deadline ... (of two months) to conclude its administrative intervention (from the due submission of the complaint before this body until the decision to submit a complaint through judicial channels or to shelve the case) ...". The Government has respected the above terms pronounced by the Constitutional Chamber. In this respect the Minister of Labour and Social Security issued Directive DMT-063-98 dated 15 May 1998 in which the competent administrative authorities are reminded of their duty to process rapidly -- within two months --, without prejudicing the rights that derive from the principles of due process and legitimate defence, the processes applicable in cases of anti-union discrimination. At present the National Labour Inspection Directorate has set about processing the case within the given deadlines. In this respect the Government provides some examples of the efforts being made by the National Labour Inspection Directorate in order to comply in a reasonable manner with the deadline indicated by the Constitutional Chamber.
6. 407. In addition, faithful to the principles that inspire the ILO, on 18 January 1999 the Minister of Labour issued a new directive in which he draws the attention of the competent bodies to the deadlines provided in the Chamber ruling and in the Directive issued on 15 May. The purpose of this is to guarantee that procedures relating to allegations of anti-union discrimination are completed within two months. Similarly, a copy of the 311th Report of the ILO Committee on Freedom of Association has been transmitted to the President of the Supreme Court of Justice under cover of official letter DMT-0068-99 dated 18 January 1999. In this document the judicial authorities are informed of the Committee's concern about slowness and long delays in deciding proceedings. The Government wishes to make plain its full readiness to remedy the concerns of the Committee on Freedom of Association regarding alleged delays in achieving justice through administrative processes to evaluate unfair labour practices, by defining reasonable policies to protect the rights of unionized workers and ensuring swift procedures without prejudice to the constitutional guarantees of due process and legitimate defence. It is the parties to the dispute who are primarily responsible for delaying the procedures in question by using the delaying actions and tactics available to them through due process, a situation the Government has informed the Committee on Freedom of Association about at great length. In this respect, the Government regrets that the complainant trade union is making inexact claims to the ILO which have now been superseded in national legislation and practice. As a result the complainants seem somewhat hasty in their claim that the "Government of Costa Rica does not ensure that its own legislation and legal decisions with respect to the exercise of trade union rights in banana plantations are properly respected or effectively applied".
7. 408. Moreover, the Government refers to ruling No. 1317-98 handed down at 10:12 on 27 February 1998 (record No. 4222-A-92) and indicates that for a number of years the ILO bodies responsible for monitoring the application of international labour Conventions, particularly the Committee of Experts on the Application of Conventions and Recommendations and the tripartite Committee on the Application of Conventions and Recommendations of the International Labour Conference have made observations to the Government of Costa Rica relating to its adoption of the necessary measures to allow strikes in the agriculture (including banana plantations) and forestry sector and consequently in the public sector. For this reason, having evaluated the doctrine and legislation that uphold the prohibition of the right to strike in the agriculture and forestry sector contained in clause (b) of section 376 of the Labour Code, in August 1997 the Executive Branch presented a draft bill to the Legislative Assembly to repeal that clause. Similarly, in February 1998 the Constitutional Chamber issued its momentous ruling No. 1317-98 handed down at 10:12 on 27 February 1998, record No. 4222-A-92. This ruling declares clauses (a), (b) and (e) of section 376 and the second paragraph of section 389 of the Labour Code to be unconstitutional.
8. 409. Furthermore, considering the lack of evidence to confirm the claims contained in the IUF's complaint, the Government gives an extensive summary of the investigations (not mentioned in the allegations) that the competent national authorities carried out into trade union persecution and/or unfair labour practices in banana plantations (18 cases between 1996 and 1998).
9. 410. As regards the specific complaints cited by the complainant in Case No. 1984, the Government states that the National Labour Inspection Directorate has carried out the following inspections, in accordance with the law, on the basis of applications from the UTRAL, SITRACHIRI and SITAGAH trade unions:
   • -- Workers' Union of Limón: the National Labour Inspection Directorate has in its files seven records relating to complaints of trade union persecution and unfair labour practices. Only one of these complaints is against the enterprise Bananera Isla Grande S.A., and was received by the Directorate on 15 July 1998. This complaint of unfair labour practices has been legally processed and has now been submitted by the National Labour Inspection Directorate to the labour courts. During the administrative investigation the enterprise was found to be violating labour and social security legislation as well as committing unfair labour practices and trade union persecution when it was determined that the workers were being harassed to resign their membership of the trade union. With respect to the complaint submitted by the trade union following the end of the abovementioned investigation, concerning the alleged sale of the assets of the Isla Grande S.A. enterprise to the Chiriquí Land Company, so that it would be considered as part of the judicial process submitted, the Government wishes to state that the administrative authorities do not know whether this sale is fraudulent or not, given that the party concerned must take the appropriate legal action before the corresponding courts.
     • With respect to the inspection carried out on 23 and 24 July 1998 by officials from the National Labour Inspection Directorate at Isla Grande S.A., it was established that the enterprise was infringing labour legislation in the following ways: practising periodic dismissal (section 30, clauses (b) and (c) of the Labour Code); hiring a higher percentage of (illegal) foreigners than permitted by law (section 3 of the Labour Code); it was not registered with the Costa Rican Workers' Social Security Fund; workers were treated disrespectfully; pay was below the legal minimum, etc. All these inspection duties were carried out by investigating inspectors under the protection of the powers granted by the Organization of the Ministry of Labour and Social Security Act.
     • Of the remaining five cases relating to the complaint lodged by the UTRAL trade union relating to the Virginia, Manzanillo, Gandoca and Daytona plantations, owned by the enterprise Proyecto Agroindustrial de Sixaola (PAIS), and lastly the case relating to Proyecto Agroindustrial de Sixaola (PAIS), the competent ministerial department, through its body of inspectors, carried out the relevant investigations between 24 July and 20 November 1998. As a result of these investigations the corresponding complaints were submitted to the courts as described above. The investigations determined the existence of unfair labour practices in the form of harassment and threats so that workers would resign their membership in the trade union as well as the wrongful withholding of union dues deducted from workers. The Government wishes to underline the fact that at no time did the trade union in question denounce through administrative channels the presence of security doors or aggressive guards to prevent the entry of trade union officials.
   • -- Workers' Trade Union of the Sixaola Agroindustrial Project (SITRAPAIS): on 1 July 1997, this trade union lodged a complaint with the National Labour Inspection Directorate against the enterprise called Proyecto Agroindustrial de Sixaola (PAIS) for unfair labour practices and trade union persecution. This ministerial office processed the complaint according to the law, investigating the case and concluding in effect that within the enterprise workers were being dismissed for their membership of the trade union and affiliated workers were being intimidated and threatened as were those who intended to join the trade union. For these reasons, on 2 June 1998, the National Labour Inspection Directorate lodged a formal complaint with the competent labour courts. Although the initial complaint referred to chains on doors, padlocks and permanent security guards, at no time was it shown that these security measures were an obstacle to trade union officials entering the enterprise. (The facts relating to the complaint referred to in this paragraph are not mentioned in the IUF's complaint.)
   • -- Workers' Trade Union of the Chiriquí Land Company (SITRACHIRI): on 4 August 1997, this trade union lodged a complaint with the abovementioned Directorate against the Chiriquí Land Company. The same organization lodged an application for the withdrawal of the complaint, informing the ministerial office that the loss of interest in pursuing the investigation was due to the fact that a satisfactory agreement had been reached with the enterprise. Given these facts, the National Labour Inspection Directorate closed the case under examination. On 18 September 1997, SITRACHIRI submitted a further complaint to the ministerial authorities against the Chiriquí Land Company, Sixaola division, plantations 96 and 97, citing unfair labour practices and anti-union persecution. From the investigation carried out it was found that workers were being harassed to resign their membership of the trade union and preferential treatment was given to members of the Solidarity association, whose executive committee includes employers' representatives. In view of this result and the violations encountered, on 2 February 1998 the National Labour Inspection Directorate lodged a complaint with the courts against the Chiriquí Land Company. In this connection the Government wishes to stress that during the complaint and investigation process, SITRACHIRI made no reference to the infringement of the prevailing collective agreement, as stated in the complaint brought before this international body.
   • -- It is necessary to make it clear to the ILO that a review of the records in the archives of the National Labour Inspection Directorate reveal that there are no pending complaints relating to the Compañía Bananera del Atlántico.
   • -- Trade Union of Agricultural, Livestock and Similar Workers of Heredia (SITAGAH): there are records of seven complaints having been submitted between 1995 and 1998 through administrative channels, of which four concern Bananera Guapinol S.A. These complaints have been shelved, given that the results of the investigations carried out did not reveal any evidence of legal issues. As regards the complaint instituted in April 1996 by this trade union against Bananera El Roble Sociedad, this has been archived at the National Labour Inspection Directorate as the existence of anti-union persecution and unfair labour practices was not demonstrated. Furthermore, on 5 October 1998 the same complainant lodged a complaint with the National Labour Inspection Directorate for unfair labour practices and anti-union persecution against Amado Díaz Guevara, a member of the trade union's executive committee, against the enterprise Bananera Oropel S.A. This investigation was completed on 28 November 1998 when the investigating official submitted his final report and referred the case to the Directorate for a final decision, which is currently under consideration. On 29 October 1998, SITAGAH lodged a complaint against Bananera Las Gacelas S.A. for unfair labour practices and anti-union persecution, citing the fact that when they arrived at the enterprise the security guards would not let them pass. In view of the complaint, the National Labour Inspection Directorate called for an investigating inspector to carry out an investigation. He submitted his final report on 26 November 1998, referring the file back to the National Labour Inspection Directorate for its final decision. The Government stresses that this case is the only one under examination in which a complaint has expressly been sent to the national authorities by the trade unions denouncing the obstruction by employers' representatives of entry into the enterprise.
   • -- Complaint lodged by Mr. Florentino Valencia Valencia, for unfair labour practices and anti-union persecution against the Finca Talamanca, on 11 December 1995. The Government states that the action was shelved in November 1996 at the request of the plaintiff.
   • -- Workers' Trade Union, Plantaciones Agrícolas (SITRAP): on 10 March and 8 June 1998, this trade union lodged a complaint against the Corporación de Desarrollo Agrícola del Monte S.A. The complainant claims that the enterprise is engaging in anti-union conduct with the objective of removing Mr. Didier Leiton Valverde, a member of the workers' permanent committee and a trade union member. Once the corresponding investigation had been carried out, which was completed on 30 September 1998, it was found that the enterprise had in fact engaged in unfair labour practices to the detriment of Mr. Didier Leiton Valverde. For these reasons the National Labour Inspection Directorate proceeded to lodge a legal complaint on 5 October 1998. However, in view of a verbal request by the Labour Relations Department of the Ministry of Labour and Social Security, the process was interrupted since SITRAP and the representatives of the enterprise requested administrative conciliation in order to resolve the conflict that had arisen between the parties. As a result of this conciliation, in a document dated 13 October 1998, prepared by the above-noted department and sent to the National Labour Inspection Directorate by mutual agreement, the parties withdrew the complaint and therefore the file is pending examination.
10. 411. As regards the alleged delay in administrative procedures in the trade union sphere, the Government reiterates its comments on Constitutional Chamber ruling No. 4298-97 handed down at 16:45 on 23 July 1997 and on the related administrative directives. All the statements by the complainant concerning alleged delays in the administrative processing of investigations of infringements of trade union rights concern aspects that have now been overcome as a result of the efforts made by various government bodies.
11. 412. Nevertheless, the administrative and judicial procedures end when all stages, both administrative and judicial, have been completed, and not before. Omitting part of the due process of law established in the legislation, be it administrative or judicial, is tantamount to ignoring the Constitution. The parties to the dispute are primarily responsible for delaying the proceedings being considered, by using delaying actions and tactics available to them under due process, a situation that the Government of Costa Rica has informed the Committee on Freedom of Association about at great length and that the Committee has clearly noted in paragraph 201 of the 305th Report (November 1996). In that paragraph the Committee expressly recognizes the delay caused by the parties during these proceedings, concluding that the "administrative and legal actions brought by (the enterprise) meant that the Government was unable to go to the judicial authority before the end of August 1996 in order to obtain the penalties and compensation provided for in the legislation". It is incorrect to claim, as the complainant has done, that the National Labour Inspection Directorate intentionally delays the processing of complaints of union persecution and unfair labour practices, given that it has been shown that the conduct of the National Labour Inspection Directorate was entirely in keeping with the procedures recognized and approved both by the country's highest jurisdictional body and by the ministerial authorities. In this respect the Government once again expresses its regret that the complainant is making inexact claims which have now been superseded in national legislation and practice.
12. 413. As regards the inspection measures carried out at the work centres referred to in this complaint, the Government sends a copy of the report, dated 8 December 1998, prepared by the inspector called in to do this work and sent to the legal section of the National Labour Inspection Directorate.
13. 414. The Government attaches a copy of a report from the Labour Relations Department concerning the individual complaints referred to in the complaint under examination submitted to the ILO by the IUF and the involvement of the Labour Relations Department. According to that report:
    • -- Agricultural Workers' Trade Union of Limón (UTRAL): In accordance with sections 43, 44 and 45 of the Organization of the Ministry of Labour and Social Security Act, the Ministry of Labour and Social Security, through the Labour Relations Department, initiated the conciliation procedure proposed by UTRAL and convened the relevant conciliation meetings as authorized by law.
    • -- In this connection, and on the request of the trade union in question, the Labour Relations Department, pursuant to an official letter DRT-405-98 dated 16 July 1998, convened the representatives of Bananera Isla Grande S.A. and of the UTRAL trade union to a conciliation meeting to be held on 30 July 1998 at 9.30.
    • -- On that occasion, the trade union requested that a meeting be convened to settle the following issues with the enterprise: (1) recognition of UTRAL; (2) dispute settlement procedure; (3) deduction of union dues; (4) free entry to the plantation; (5) dismissal of workers affiliated to UTRAL, in spite of the submission of a collective dispute to the courts; (6) respect for workers affiliated to UTRAL.
    • -- On 30 July 1998 at the time specified for the abovementioned conciliation meeting only the representative of UTRAL attended and he requested on the record that the employers' representatives from Isla Grande S.A. be summoned once again. Furthermore, under cover of official letter DRT-438-98 dated 30 July 1998 a copy of the above record was sent to the National Labour Inspection Directorate.
    • -- In official letter DRT-439-98 dated 31 July 1998 the Labour Relations Department once again convened the parties concerned for a meeting on 19 August 1998; the leadership of the Civil Guard of Sixaola was involved in notifying the employers' representatives.
    • -- As regards the alleged dismissal of workers affiliated to UTRAL despite a collective dispute having been submitted to the courts in a decision dated 5 August 1998 the first civil and labour court of Limón, in proceedings relating to the socio-economic collective dispute presented by Mauricio Abrego and others against Bananera Isla Grande S.A., ordered the defendant to reinstate the workers dismissed from their usual duties.
    • -- In a note dated 11 August 1998, relating to the official convocation for 19 August 1998, signed by Mr. Adrián Alvarado Morales, the administrator of the Isla Grande plantation, and addressed to the Labour Relations Department, the author states that he is not the legal representative of that company.
    • -- On 19 August 1998, the date when the abovementioned conciliation meeting was due to take place, only the UTRAL representative attended, who consequently requested that the representatives of Isla Grande S.A. be summoned a third time, and sent a copy of this convocation to the National Labour Inspection Directorate of the Ministry of Labour and Social Security for their information and eventual action.
    • -- Once again, in official letter DRT-506-98 dated 24 August 1998 the parties were convened for a conciliation meeting on 24 September 1998 at 10.00.
    • -- On 12 September 1998, in a communication signed by the general manager of the Chiriquí Land Company, of which this Department received a copy, the executive committee of the Workers' Trade Union of Chiriquí Land Company and the workers of Isla Grande S.A. were informed that the enterprise Chiriquí Land Company had bought the assets of Isla Grande S.A. plantation, which were now covered by the collective agreement governing the Chiriquí Land Company.
    • -- As regards 24 September 1998, the date on which the conciliation meeting was to be held between the parties mentioned, it is noted that neither party attended the meeting.
14. 415. Furthermore, with respect to the executive committee of the solidarity association being supposedly made up of administrative workers and imposed by the Chiriquí Land Company, the Government indicates that according to a sworn declaration, a copy of which was attached to the response, it is testified that in accordance with section 14 of Act No. 6970 concerning solidarity associations, none of the members of the executive committee in force in November 1998 holds any of the offices stipulated and therefore the complaint submitted by the complainants to the ILO is inexact. On the subject of the Trade Union of Agricultural, Livestock and Similar Workers of Heredia (SITAGAH), on 22 July 1998, Mr. Ramón Barrantes Cascante, in his capacity as general secretary of SITAGAH, addressed a request to the Ministry of Labour to summon the employers' representatives of the Compañía Bananera Gacela S.A. to a meeting to evaluate "... the reasons why the security guard at that company acted in an unusual manner when, on 9 July, Mr. Félix Andino in the performance of his duties approached the security door situated at the entrance to the plantation and the security guard did not raise the door although he knew that the worker was working for the enterprise and the tractor he was driving belonged to the enterprise ...". By reason of the above-noted action, the Labour Relations Department in official letters DRT-418-98 dated 23 July 1998 and DRT-457-98 dated 5 August 1998 convened the parties in question to a meeting to proceed with the respective conciliation procedures. Notes sent to that Department by the employer on 1 and 13 August 1998 indicate that "The security guards have the obligation to keep the access route for vehicles to the plantation closed in order to guarantee as far as circumstances permit the security of the people who work for it and of their property. Vehicles of all kinds, whether privately owned or the property of the plantation, must stop at the main gate before they can enter. It is not true that the guard identifies vehicles in the distance and immediately proceeds to open the gate. This procedure is contrary to all security standards. Mr. Andino, the driver of the tractor, is obliged to stop the tractor at the main gate to the plantation and wait for the guard on duty to clear the way for him to enter." Although the employers' representative did not appear in person at the hearings, the Department drew up two records of the meetings dated 4 and 19 August 1998.
15. 416. On another matter, relating to the allegation by the complainant requesting free passage throughout the banana plantations for trade union leaders, the Government states that in addition to free passage and the right to hold meetings being a constitutional right, the administrative directive issued by the Ministry of Labour on 18 January 1999, mentioned above, orders the competent authorities "... to remain constantly vigilant in the protection of workers' collective rights in order to ensure that the constitutional right of workers and their trade union leaders to hold meetings is not suppressed and their right to hold meetings and to undertake peaceful industrial action is upheld ...".
16. 417. The Government considers that the complainant is wrong to allege facts which in many cases have been superseded by national legislation and in others have been attended to and solved by the competent administrative authorities. It refers to the regulations that protect trade union rights and the jurisprudence that has originated from the highest jurisdictional body, to the administrative measures taken by the National Labour Inspection Directorate and the Labour Relations Department in dealing with and solving the complaints under examination, and to the guidelines issued by the Ministry of Labour that ensure as a whole the protection of workers' trade union rights, requested by the complainants in the action under examination.
17. 418. In this context, the Government states that the Ministry of Labour and Social Security and also the other competent administrative and jurisdictional authorities have acted in the case under examination in accordance with the law and continue to make enormous efforts to guarantee that prevailing legislation is observed by the employers' sector in the matter in question. In any event, it is submitted that it is not in conformity with legal and moral principles to censure someone when that person has not been entitled to defend himself or herself. The Government has given its position in this document, to the best of its knowledge, concerning the complaints, confirming its commitment to guarantee the observance of trade union rights contained in prevailing legislation without detriment to the daily efforts being made by the competent authorities in order to achieve harmony in labour relations.
18. 419. Furthermore, in support of harmonious labour relations in Costa Rica and as a guarantee of good order and social justice, the Government states that the Ministry of Labour has issued instructions to the competent authorities (Office of Industrial Affairs and National Labour Inspection Directorate) for them to summon the relevant employer and attend to the list of claims for mediation presented by the complainant. Likewise, to enable them to carry out a thorough evaluation of the complaint under examination and any other studies, analyses and/or investigations necessary, the abovementioned authorities were informed about all facts known to the administration at the time that this complaint was submitted to the ILO (Case No. 1984).
19. 420. In its communication dated 16 March 1999, the Government sends a long report from the Director and General Inspector of Labour concerning certain issues raised by the complainant and in particular the alleged 13 decisions for censuring delays in the administration of justice referred to by the IUF, and also ten of the rulings handed down by the Constitutional Chamber, most of which do not correspond to the parties to the dispute or to decisions against the Ministry of Labour, as suggested by the IUF. The report indicates the various guidelines and measures adopted by the authorities to enhance the ongoing development of effective and prompt protection in the event of the violation of trade union rights. In keeping with the provisions of ruling No. 4298-98 handed down by the Constitutional Chamber which is available on record, a number of directives issued by the National Labour Inspection Director -- the person dealing with the matter before us -- can be found in the much-quoted report, such as Directive No. 1331-98 dated 27 July 1998 concerning the "Administrative procedure to apply in cases such as trade union persecution and unfair labour practices", Directive No. 288-99 dated 17 February 1999 entitled "Legal obligations pertaining to the required treatment when dealing with accusations of unfair labour practices" and Directive No. 289-99 dated 17 February 1999 entitled "Referral of copy of official communication DMT-0130-99 and attached documentation relating to the complaint submitted to the ILO by the IUF".
20. 421. On the basis of the above considerations, the Government seeks the dismissal of the complaint submitted by the IUF in its entirety as the situations denounced have been addressed by the competent authorities in accordance with the law.

C. The Committee's conclusions

1. 422. The Committee observes that the allegations submitted in this case relate essentially to various acts of anti-union discrimination and intimidation, practices undermining collective bargaining, obstacles to the access of trade union officials to the plantations and to the ineffectiveness of and excessive delays by the administrative and judicial authorities in processing complaints of trade union persecution and unfair labour practices. The Committee notes the extensive and detailed reply from the Government. It also notes the Government's indication that some of the allegations presented by the complainant have not been brought before the national authorities and its declaration that instructions have been issued to the competent authorities to attend to these allegations and to carry out any necessary studies, analyses and/or investigations. As regards the request by the Government to dismiss the IUF's complaint because the situations had been addressed by the competent authorities in accordance with the law, the Committee recalled that its mandate "consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 6).
   • Allegations relating to Bananera Isla Grande S.A.
2. 423. According to the allegations, the collective dispute that arose in this enterprise occurred as a result of UTRAL submitting a list of claims on 10 July 1998 in the context of commencing the collective bargaining process; the following day one of the signatories of the list of claims (Mr. Samuel Abrego Abrego) was dismissed; a number of days previously the enterprise had already dismissed various workers whose intention of signing the list of claims was known to the enterprise (Mr. Pineda Becker, Mr. Abrego Santos, Mr. Palacios Becker and Mr. Jiménez Miranda). On 5 August 1998, the judicial authority ordered that the dismissed workers be reinstated in their duties; on 17 August 1998 the enterprise refused to reinstate these workers and dismissed 90 more who had signed the list of claims (according to the complainant, these dismissals occurred as follows: on the request of Bananera Isla Grande S.A. and other enterprises operating in the region, from 17 to 19 August, in the presence of enterprise representatives, the Civil Guard and immigration officials, citing an alleged operation targeting illegal immigrants and using lists of workers affiliated to the trade union and signatories of the list of claims, stopped workers crossing the border in order later to dismiss them alleging "unjustified absence"); a large number of the dismissed workers were not reinstated in their duties. In addition, the workers from the enterprise were pressured to join a solidarity association that steps had been taken to establish at the plantation; it was twice proposed to the workers to sign a "direct arrangement" with the enterprise (outside the trade union) and the committee which was to negotiate it was offered better working conditions; pressure was also placed on the trade union members to sign blank pieces of paper in order to dismiss them and put an end to the dispute. Furthermore, the complainant alleges that the enterprise is carrying out a sham sale to another enterprise (Chiriquí Land Company, Sixaola Division) in order to undermine the collective dispute which is before the judicial authority
3. 424. According to the Government: (1) The National Labour Inspection Directorate received a complaint on 15 July 1998 against the enterprise Bananera Isla Grande S.A.; the administrative investigation found that the enterprise was involved in unfair labour practices and anti-union persecution, it being determined that the workers were being harassed to resign their membership of the trade union and that the enterprise was infringing labour legislation by practising periodic dismissals, hiring a higher percentage of (illegal) foreigners than allowed by law, paying wages below the legal minimum, not according workers the appropriate respect, not registering workers with the Costa Rican Social Security Fund, etc. (2) As a result of the investigations, the National Labour Inspection Directorate submitted a complaint to the labour courts; on the request of the UTRAL trade union, this Directorate had previously invited the parties to a number of conciliation meetings (as from 30 July 1998) concerning the recognition of the trade union, the deduction of union dues, free entry to the plantation, the dismissal of UTRAL members despite the submission of a collective dispute to the courts, and respect for workers affiliated to the trade union; nevertheless, the enterprise failed to attend these meetings. (3) On 5 August 1998, the judicial authority ordered the reinstatement of the dismissed workers in their usual duties. (4) On 12 September 1998 the enterprise Chiriquí Land Company bought the assets of Bananera Isla Grande S.A.; as a result the workers are now covered by the collective agreement of the Chiriquí Land Company; the authorities do not know whether or not this sale is fraudulent given that in order to determine this the party concerned must institute the necessary action before the courts.
4. 425. The Committee observes that the issues relating to the collective dispute that occurred at Bananera Isla Grande S.A. were the subject of an administrative investigation that respected the legal deadline of two months. After the investigation the administrative authority submitted a complaint to the judicial authority and convened the parties to various conciliation meetings which the enterprise representatives did not attend. Observing that during its investigation the administrative authority found that workers were being harassed to resign their membership of the trade union, that there were considerable violations of labour legislation and that on 5 August 1998 the judicial authority ordered the reinstatement in their duties of the workers who had so far been dismissed (five in all), the Committee must deplore these facts and requests the Government to send it the text of the final decision handed down by the judicial authority and to ensure compliance with the judicial decision that has already been handed down ordering the reinstatement of the five dismissed workers. As regards the remaining allegations (dismissal, alleging "unjustified absence", of 90 workers affiliated to the trade union who had signed the list of claims, following an alleged operation targeting illegal immigrants that occurred between 17 and 19 August 1998 in which the Civil Guard and immigration officials were involved in the presence of enterprise representatives at the border, using lists of workers affiliated to the trade union; pressure placed on workers to join a solidarity association; proposal to workers to sign a "direct arrangement" with the enterprise outside the trade union; pressure on trade union members to sign blank pieces of paper), the Committee requests the Government to forward its observations in this respect.
5. 426. Concerning the alleged sham sale of Bananera Isla Grande S.A. to another enterprise (Chiriquí Land Company) in order to undermine the collective dispute which was already before the judicial authority for consideration, the Committee notes the Government's declaration that on 12 September 1998 the Chiriquí Land Company bought the assets of Bananera Isla Grande S.A., that the workers were from then on covered by the collective agreement of the Chiriquí Land Company (the collective agreement is deemed to be satisfactory by the complainant) and also that in order to determine whether or not the sale was fraudulent the party concerned must submit the necessary action to the courts.
   • Allegations relating to the enterprise PAIS S.A
6. 427. According to the allegations, in this enterprise the members of UTRAL are being harassed to resign their membership of the union and some workers have even been dismissed simply because of their union membership; in addition, the enterprise has installed a security door to stop trade union officials from entering and has brought in security guards who act aggressively and issue threats.
7. 428. The Committee notes the Government's statements that administrative investigations were instituted in November 1998 and as a result of the investigations (which determined the existence of harassment and threats to workers to resign their membership of the trade union and the wrongful retention of union dues) the corresponding complaints were lodged with the courts. The Committee requests the Government to forward to it the text of the decision rendered. Likewise, observing the Government's indication that the trade union has never complained through administrative channels of the existence of security doors and guards who act aggressively to stop trade union officials entering, and that the Government has issued instructions for the competent authorities to address these allegations and adopt the appropriate measures, the Committee requests the Government to keep it informed in this respect.
   • Allegations relating to the Compañía Bananera del Atlántico
8. 429. According to the allegations, this enterprise pressured workers to such an extent that some of them resigned their membership of the SITAGAH trade union, following the enterprise's recommendation; the complainant claims that it has sworn declarations by workers to prove this. The complainant indicates that the complaint to the Ministry of Labour was entirely fruitless, forcing the trade union to apply to the Constitutional Chamber to have its rights upheld. It refers to 13 decisions concerning its members handed down by that Chamber in which, it maintains, the Ministry of Labour was found to have delayed proceedings and ordered to pay damages.
9. 430. The Committee notes the Government's statement that a review of the records in the archives of the National Labour Inspection Directorate revealed no trace of any pending complaints relating to the Compañía Bananera del Atlántico.
10. 431. With regard to other enterprises that are not included in the allegations in the current complaint, the Government indicates that investigations undertaken in relation to seven complaints submitted by SITAGAH between 1995 and 1998 show that in four of these complaints there was no proof, in one complaint trade union persecution and unfair labour practices were not proven, in another the administrative investigation ended in November 1998 and was referred to the National Labour Inspection Directorate for a final decision (which is under examination) and in the last administrative investigation which ended in November 1998 (the complaint was made on 29 October 1998) the file was submitted to the National Labour Inspection Directorate for a final decision.
11. 432. The Committee observes that the allegations relating to pressure by the Compañía Bananera del Atlántico on workers to resign their membership of the trade union are too vague as there is no indication of when the pressure occurred, the workers' declarations are not attached, nor are their names. Nevertheless, the complainant refers to 13 decisions handed down by the Constitutional Chamber and seems to base its allegations on the ineffectiveness, in its view, of the Ministry of Labour in processing the complaints submitted to it. The Committee therefore refers to the conclusions it formulates below concerning the alleged ineffectiveness of the Ministry of Labour and the delays in the processing of complaints, where the decisions in question are examined. Allegations relating to the Compañía Bananera Gacelas
12. 433. According to the allegations, in this enterprise where there has been a rapid rise in unionization, security doors and security guards are being used to stop the free passage of trade union leaders.
13. 434. The Committee notes the Government's declarations that on 22 July 1998 the trade union SITAGAH requested an examination into why security guards obstructed the entry of a worker who arrived at the enterprise. In August 1998, following conciliation procedures by the administrative authorities, the enterprise indicated in writing that the access route for vehicles to the plantation is kept closed in order to guarantee the security of the persons working there and of their property and that the person referred to in the complaint who wanted to enter had to stop the tractor at the access gate to the plantation and wait for the guard to clear the way for him to enter. The Committee notes the Government's general statement referring to the free passage of trade union leaders in plantations, that the right to hold meetings and the right of passage are constitutional rights and that the Directive issued by the Ministry of Labour on 18 January 1999 orders the competent authorities to remain constantly vigilant so that the right of workers and their trade union leaders to hold meetings and engage in peaceful industrial action is not suppressed. Given that the allegations included no names or dates relating to obstacles to the passage of trade union leaders and observing that according to the annexes to the Government's reply the trade union's complaint refers to one single worker from the enterprise driving a tractor, and makes no reference at all to whether it was a trade union leader, the Committee will not pursue the examination of these allegations.
    • Allegations relating to the Chiriquí Land Company
14. 435. According to the allegations, the head of the human resources department at this enterprise behaves in an aggressive and insulting manner, persecutes unionized workers and constantly violates the rights established in the collective agreement. When the trade union complained about this behaviour, the enterprise denounced the general secretary of SITRACHIRI and persuaded a number of workers to take legal proceedings against the trade union and its leaders, resulting in the executive committee of the trade union being severely persecuted. In addition, in violation of legislation, the enterprise is campaigning for "solidarity", and administrative representatives from the enterprise belong to the solidarity association.
15. 436. The Committee notes the Government's statement that, following the investigations corresponding to the complaint submitted by SITRACHIRI on 18 September 1997, the National Labour Inspection Directorate lodged a complaint with the courts against the enterprise on 2 June 1998, it having been proven in the investigation that workers were being harassed to resign their membership of the trade union and that members who joined the solidarity association were receiving preferential treatment. According to the Government, the trade union did not submit any complaints relating to the violation of the prevailing collective agreement to the administrative authorities. Lastly, the Government states with reference to the alleged inclusion of administrative officials in the executive committee of the solidarity association that, according to an attached sworn declaration, no member of the executive committee in force in November 1998 fits this description.
16. 437. The Committee requests the Government to send it the text of the decision handed down by the judicial authority concerning the complaint submitted by the administrative authorities. Allegations relating to the ineffectiveness and excessive delay by the authorities in processing complaints of the violation of trade union rights
17. 438. According to the allegations, these delays occur both in the administrative and the judicial bodies; 60 cases -- administrative body -- and over 150 cases -- judicial body -- are pending decisions by the respective authorities (at times the judicial proceedings have taken three or four years); the complainant refers to 13 decisions handed down by the Constitutional Chamber in which the Ministry of Labour has allegedly been censured for delaying procedures and required to pay damages.
18. 439. The Committee notes the Government's declarations and in particular that the alleged delays in the administrative procedures no longer occur and have been overcome in legislation and national practice due to various recent actions and efforts by the Government and governmental bodies and to decisions and rulings handed down by the Constitutional Chamber to address the concern expressed by the Committee on Freedom of Association in earlier cases where delays were alleged. The Committee notes with interest that: (1) as a result of ruling No. 4298-97 handed down by the Constitutional Chamber on 23 July 1997, the administrative authorities are required to carry out the applicable procedures for alleged trade union persecution and unfair labour practices within two months; (2) in Directives dated 15 May 1998 and 18 January 1999 this duty was reiterated by the Ministry of Labour to the competent administrative authorities, and the National Labour Inspection Directorate is endeavouring to process cases within the set deadline; (3) in an official letter dated 18 January 1999 the President of the Supreme Court of Justice and the judicial authorities were informed of the Committee's concern about excessive slowness in the handing down of decisions; (4) by way of Constitutional Chamber ruling No. 1317-98 handed down on 27 February 1998 the prohibition to strike in the agricultural (including the banana plantations) and forestry sector (section 376(b) of the Labour Code) was declared to be unconstitutional; (5) the competent administrative authorities are intervening at the request of the trade unions to achieve extrajudicial conciliation. The Committee also notes the Government's indication that the administrative and judicial processes end when all stages -- administrative and judicial -- have been completed, that not to respect due process would be the same as rejecting the provisions of the Constitution and that it is the parties to the dispute who are primarily responsible for delaying proceedings by using delaying tactics and actions.
19. 440. The Committee notes the report by the Director and General Inspector of Labour sent by the Government. It observes that in keeping with the information sent by the Government, the report shows that ruling No. 4298-97 handed down by the Constitutional Chamber of the Supreme Court of Justice dated 23 July 1997 establishes that the administrative procedure for investigating complaints of alleged trade union persecution and unfair labour practices (or other investigations or procedures established in the Labour Code) is a special one and differs from the general public administration procedure; this ruling indicates the guidelines to be adhered to in future in this special procedure and establishes a deadline of two months for the National Labour Inspection Directorate to conclude its administrative intervention. According to the report, before the ruling was handed down, the parties involved in industrial administrative procedures used all possible legal remedies available to them to try to strengthen and guarantee their position, delaying and obstructing the procedures with their various appeals, assessments and petitions which in practice led to the administration being slow and inefficient in resolving the dispute submitted by the trade unions. The report adds that the National Labour Inspection Directorate has taken steps to promote the ongoing development of efficient and prompt protection and has been adapting itself to the guidelines of the Constitutional Chamber, having also handed down a number of Directives such as No. N-1331-98 of 27 July 1998, to be applied in conjunction with the administrative procedure to adhere to in cases such as trade union persecution and unfair labour practices.
20. 441. With respect to the alleged 13 decisions handed down by the Constitutional Chamber censuring the Ministry of Labour for having delayed procedures (the number of decisions is indicated by the complainant), the Government, reflecting the report by the National Director and National Inspector of Labour, declares that most of the decisions or rulings handed down by the Constitutional Chamber do not concern the parties in the case before the Committee nor refer to judgements pronounced against the National Labour Inspection Directorate or the Ministry, contrary to what is claimed by the complainant. Ten of the 13 decisions handed down by the Constitutional Chamber and mentioned by the complainant are attached to the report. The Committee observes that an examination of the ten decisions attached reveals the following: (1) four of the decisions (Nos. 0619-98, 1351-98, 1947-97 and 5854-97) do not refer to trade union matters; (2) one decision (No. 6483-97) shows that eight months passed before the Ministry of Labour convened a conciliation hearing for three enterprises (requested by the trade union) in October 1997 to present the new trade union executive committee; (3) one decision (No. 0338-98) shows that a complaint of trade union persecution and unfair practices was resolved by the administrative authority on 28 November 1997, 28 months after its submission; (4) four decisions (Nos. 0337-98, 0339-98, 0340-98 and 4298-97) show that between 13 and 24 months passed between the submission of the complaint and the date on which the respective decision was handed down by the Constitutional Chamber, with these dates being situated for the various cases between 23 July 1997 (when the Constitutional Chamber established the duration of the administrative procedure at two months) and 21 January 1998; in these decisions the Constitutional Chamber indicates that the administrative authority did not respect the deadline of two months for the completion of the administrative procedure and rejects the arguments put forward by the Ministry of Labour citing the limited number of officials, limited travel allowances and means of transport, the high number of appeals and interlocutory applications lodged by the parties, the high number of cases submitted or the need to adhere to chronological order when processing complaints.
21. 442. Furthermore, the Government referred in its reply to administrative investigations in banana plantations that the IUF does not mention in its complaint. The Committee observes that according to the information annexed by the Government, since ruling No. 4298-97 was handed down by the Constitutional Chamber on 23 July 1997 establishing a deadline of two months for the completion of the administrative procedure, in the majority of cases (particularly in 1998) these procedures have been completed within the legal deadline of two months from the presentation of the administrative complaint. In seven cases the administrative authority has lodged a complaint with the judicial authority; two cases have been filed and in one case the parties reached an agreement and one is currently in the preliminary stage.
22. 443. The Committee concludes: (1) that the 60 cases of violation of trade union rights before the administrative body and the over 150 cases before the judicial body, which according to the complainant were affected by delays, were not proven by the complainant as it put forward these figures without offering any further evidence and providing details only concerning a limited number of cases; (2) since 1998 there has been a definite improvement in administrative procedures to process complaints of violation of trade union rights, with these now generally respecting the deadline of two months established by the Constitutional Chamber in July 1997, as demonstrated by the documentation the Government attaches with respect to the banana plantations; (3) nevertheless, in a number of decisions handed down by the Constitutional Chamber and provided by the complainant, even some handed down after the decision of July 1997, and in a number of cases mentioned by the Government, there is evidence of delays, sometimes considerable, in the administrative procedures.
23. 444. In these circumstances, given the fact that the Ministry of Labour has cited before the Constitutional Chamber as the reasons for the delays the limited number of officials, the limited travel allowances and means of transport, the high number of appeals and interlocutory applications lodged by the parties, the high number of cases submitted and the need to adhere to chronological order in the processing of complaints, the Committee requests the Government, in order to consolidate the concrete improvements seen in the rate of completion of administrative procedures in the case of violation of trade union rights, to take measures to guarantee that the complaints submitted through administrative channels are fully processed within the deadline of two months established by the Constitutional Chamber.
24. 445. Furthermore, bearing in mind that respect for this deadline of two months in the administrative procedure does not immediately guarantee redress for acts of anti-union discrimination or interference (as at present when the administrative authorities confirm such acts they must submit a complaint to the judicial authority for there to be redress) and taking into account the complainant's claim, not refuted by the Government, that at times the judicial processes take up to three or four years and that in other complaints relating to Costa Rica the Committee itself has found there to be excessive delays in judicial proceedings, the Committee requests the Government to take measures to amend legislation so that the effects of the anti-union acts confirmed by the administrative authority are suspended until the judicial authority hands down its sentence or decision concluding the matter. This is particularly important in order to preclude the absence of a judicial decision over a long period, in particular in cases of dismissal or other serious prejudicial measures or when the parties to the dispute are using the delaying tactics referred to by the Government, which are difficult to avoid when procedural guarantees and due process are respected.
25. 446. Finally, the Committee requests the Government to provide its observations on the latest IUF allegations concerning the anti-union dismissals in the Isla Grande and Gacelas agricultural companies.

The Committee's recommendations

1. 447. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • Allegations relating to excessive delays by the authorities in processing complaints ofviolation of trade union rights
     • (a) The Committee requests the Government, in order to consolidate the concrete improvements seen in the rate of completion of the administrative procedure in the case of violation of trade union rights, to take measures to guarantee that complaints submitted through administrative channels are fully processed within the deadline of two months established by the Constitutional Chamber.
     • (b) The Committee requests the Government to take measures to amend legislation so that the effects of anti-union acts confirmed by the administrative authority (in its investigations) are suspended until the judicial authority hands down the sentence or decision concluding the matter.
   • Allegations relating to the enterprise Bananera Isla Grande S.A.
     • (c) Observing that in its investigation concerning the allegations relating to the enterprise Bananera Isla Grande S.A., the administrative authority found there to be harassment of workers to resign their membership of the trade union and considerable infringements of labour legislation, and that on 5 August 1998 the judicial authority ordered the reinstatement in their duties of the workers who had been dismissed up until then (five in all), the Committee must deplore these facts and asks the Government to send it the text of the final decision handed down by the judicial authority and to ensure compliance with the judicial decision that has already been handed down ordering the reinstatement of the five dismissed workers.
     • (d) The Committee requests the Government to forward its observations concerning the other allegations relating to the enterprise Bananera Isla Grande S.A.: dismissal on the grounds of "unjustified absence" of 90 workers affiliated to the trade union who had signed the list of claims, following an alleged operation targeting illegal immigrants carried out at the border between 17 and 19 August 1998 by the Civil Guard and immigration officials in the presence of enterprise representatives, using lists of trade union members; pressure placed on workers to join a solidarity association; proposals made to workers to sign a "direct arrangement" with the enterprise outside the trade union; and pressure placed on trade union members to sign blank pieces of paper. Allegations relating to the enterprise PAIS S.A
     • (e) The Committee requests the Government to forward to it the text of the decision rendered concerning the complaints submitted by the administrative authorities of harassment and threats addressed at the workers of PAIS S.A. for them to resign their membership of the trade union and of the wrongful retention of union dues. The Committee requests the Government to inform it of the administrative action taken in respect of the allegation that in the enterprise there are security doors and that security guards act aggressively to stop trade union leaders entering.
   • Allegations relating to the Chiriquí Land Company
     • (f) The Committee requests the Government to send the text of the decision handed down concerning the complaints submitted by the administrative authorities of the harassment of workers to resign their membership of the trade union and of the preferential treatment of members who join the solidarity association.
   • Recent allegations
     • (g) The Committee requests the Government to provide its observations on the latest IUF allegations concerning the anti-union dismissals in the Isla Grande and Gacelas agricultural companies.