Definitive Report - Report No 320, March 2000

Case No 2030 (Costa Rica) - Complaint date: 31-MAY-99 - Closed

Allegations: Failure to comply with a collective agreement in the public sector and legal restrictions on collective bargaining in the public sector

1. 568. The complaint is contained in a joint communication from the Rerum Novarum Confederation of Workers (CTRN) and the Trade Union of Workers and Retired Workers of the National Registry and Related Persons (SITRARENA) of May 1999. The International Confederation of Free Trade Unions (ICFTU) supported this complaint in a communication dated 29 June 1999. The Government sent its observations in a communication dated 13 August 1999.
2. 569. 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 complainants' allegations

1. 570. In their communication of May 1999, the Rerum Novarum Confederation of Workers (CTRN) and the Trade Union of Workers and Retired Workers of the National Registry and Related Persons (SITRARENA) explains that the National Registry contains the list of all the country's real estate, companies, private associations, vehicles on the road, vessels, security provided as a guarantee in banking institutions, livestock records, copyright and everything connected to intellectual property; it also registers the cadastral plans of each property, as well as all other cadastral documents which show the general outlay of these properties and their location. The registry is run by an administrative board, a collegiate body made up of representatives from the authorities and professional bodies selected by the Government on the basis of lists containing three candidates; however, trade union organizations are not represented on this body.
2. 571. The complainants allege that collective bargaining in the public sector is subject to serious limitations and restrictions in Costa Rica and that the regulations concerning collective bargaining in the public service (set up during a previous administration under Decree No. 162 of 6 October 1992 and published in the Official Gazette of 5 March 1993) have not to date been applied. Section 11 of these regulations establishes a certifying committee entrusted with approving, down to the last detail, everything negotiated between the parties and composed entirely of ministries: the Minister of Labour and Social Security, who presides the committee; the Minister of Justice (the administrative superior of the complainants); the Minister of Finance; the Minister of the Presidency; and the Minister of Planning. Section 12 also authorizes the committee to exclude whatever it might not deem fit in the reports submitted to it. Neither SITRAREWA nor the Costa Rican trade union movement consider that Decree No. 162 meets workers' expectations of collective bargaining. Nonetheless, negotiations between the National Registry and SISTRARENA proceeded on the basis of this agreement, culminating in the signing of a "collective agreement". Section 18 of these same regulations states that: "these standards are of a transitional nature given that a bill to settle collective disputes in the public sector, established as a result of tripartite consultations, shall be submitted to the Legislative Assembly". However, this bill has not even been discussed before the Legislative Assembly, neither is it among the Government's priorities.
3. 572. The complainants point out that the certifying committee has only met once on 4 August 1994, when it adopted an agreement requesting the Attorney-General's Office to pronounce the decree concerning collective bargaining in the public service null and void, which shows that the Government's representatives on the committee do not believe that the abovementioned decree is legal.
4. 573. The complainants add that the Government denies the existence of the collective agreement signed by SITRARENA, which was the only one that took effect on the basis of the abovementioned regulations. They also point out that this collective agreement has been ignored by the administrative board of the National Registry and the Ministry of Justice and has not been applied, despite the fact that SITRARENA has brought the matter before various administrative and judicial bodies. All this points to the fact that there is no compliance with Conventions Nos. 87, 98 and 135.
5. 574. According to the complainants, after strikes had been carried out, the "collective agreement" was signed, approved by the administrative board of the National Registry and submitted by SITRARENA to the Ministry of Labour and Social Security on 5 August 1995; however, the Minister of Labour and Social Security of that time failed to convene the certifying committee provided for under the collective bargaining regulations which, moreover, at its first (and only) meeting, considered that the decree concerning the abovementioned regulations was illegal and therefore requested that it be annulled.
6. 575. Subsequently, the Ministry of Labour at that time stated the following in writing:
7. ... In reply to your request, I should like to inform you that inside the copy of the file enclosed, there is no original or duly certified copy of the "collective bargaining" mentioned with the signatures of the signatory parties or the date of registration. There is only a certified copy of a document with this title, which fails to comply with the conditions mentioned.
8. According to the complainants, it was precisely by using as an argument the inaccurate statement of the former Minister of Labour that the Minister of Justice, who presides the administrative board of the National Registry, succeeded in getting this collegial body to sign an agreement and subsequently annul under decision No. 18-97 all the terms of the agreement concerning the collective bargaining of 17 April 1997. From this moment on, the Director-General of the National Registry asked its representatives to refrain from attending the joint bodies that had been operating for a year on the basis of the "collective agreement" - such as the Labour Relations Board and the Occupational, Safety and Health Committee - and informed all the bodies of the National Registry that all the rights granted workers under the "collective agreement" were null and void. The complainant organizations point out that, given such a serious violation, SITRARENA filed administrative proceedings to annul the decision taken by the administrative board, which are still pending despite the fact that they were initiated more than two years ago (and might take five years). SITRARENA also turned to the Constitutional Court of the Supreme Court of Justice (which dismissed the appeal for amparo (enforcement of constitutional rights)) and the National Inspectorate and the General Labour Board, without success (the complainants summarize a number of decisions and criteria put forward by the Constitutional Court and the Attorney-General's Office).
9. 576. The complainants add that in a communication dated 24 July 1998, the Legal Affairs Board of the Ministry of Labour made the following pronouncement which goes back on the statement made by the previous Minister of Labour:
10. ... 2. The said collective agreement (between SITRARENA and the National Registry) was submitted to this ministry (Ministry of Labour) on 9 August 1995 for approval, in accordance with section 8 of the abovementioned regulations concerning collective bargaining in the public sector, provided for under paragraph 11 of these regulations. To date, no decision has been taken in this respect.
11. ... B. Specific reply: taking into account the opinion put forward by the Attorney-General's Office in the abovementioned communication O.J.-064-98 of 17 July 1998, to the effect that the said regulations (on collective bargaining) are in force, it is the opinion of this Board that the "collective bargaining" that we are examining (National Registry-SITRARENA) should be considered approved, given that the time limit of two months stipulated in paragraph 14 of the said regulations has expired.
12. The problem for the complainants is that this pronouncement had no effect whatsoever and did not serve any purpose because the present Minister of Justice still continues to refuse the existence and validity of the "collective agreement". The present administration of the National Registry also refuses to acknowledge the "collective agreement" and requests that the matter be settled either by the courts or the ILO. For their part, the complainants request that the existing "collective agreement" should enter into effect and not be arbitrarily ignored; they also ask that it should be effectively recognized in order to re-establish the rights of workers that were infringed and that there should be a possibility for renegotiation once it has expired. The complainants also call for the adoption of legislation promoting collective bargaining in the public sector and request that a direct contacts mission be sent to the country.
13. B. The Government's reply
14. 577. In its communication of 13 August 1999, the Government states that the complaint contains careless and inexact allegations giving a wrong impression to the ILO of the events which occurred, because it is made up of inaccurate, subjective and rash statements with absolutely no foundation either in fact or in law. The complainants deny the content of communications signed by the former Ministry of Labour, when, in fact, they provide no reliable evidence in support of their statements.
15. 578. The Government adds that the protection of trade union rights is of primary importance because it constitutes one of the major objectives firmly spelt out in the national plan for dialogue, promoted by the President of the Republic with the active participation of the Minister of Labour and Social Security, and all the civil society in Costa Rica. Indeed, a few days after the elections held in February of the previous year, the President set up a special committee to study and recommend possible measures to reconcile the various elements within Costa Rican society around what the President called "a shared vision of the future". In so doing, the Government has made social dialogue a reality, as demonstrated by the re-establishment of the Higher Labour Council, a tripartite body under the Ministry of Labour and Social Security, entrusted with fostering social dialogue on labour and socio-economic issues which has directly contributed to bills being submitted to the Legislative Assembly. The Government refers in length to a number of bills currently being examined on various issues raised by the Committee on Freedom of Association and the Committee of Experts and to government actions and judgements of the Constitutional Court which have enabled progress to be made in the area of trade union rights.
16. 579. As regards the object of the complainant organizations' complaint, the Government points out that collective bargaining in the public sector has recently progressed significantly, in accordance with the regulations governing action by the administration. In this respect, it is pleased to announce that the draft "public employment act" (No. 13284), published in the Official Gazette (No. 210 of 29 October 1998) is at present being examined by the Committee of Economic Affairs of the Legislative Assembly. This act reaffirms the right to collective bargaining and right to strike in the public sector, in line with the provisions established in ILO Conventions, the Constitution and the Labour Code. This bill is the outcome of much reasoning on the part of the public administration which recognizes the need for a new system of labour relations between the State and public servants. Its main objective is that the public sector should fulfil its functions in such a way that it primarily serves the public interest, whilst ensuring that civil servants feel decently paid and stimulated to carry out their work in a capable manner, thus allowing for greater flexibility of employment and improved opportunities for bargaining of employees. The Government refers to the efforts the Executive has been making until now before the Legislative Assembly to ensure that the public employment bill is adopted.
17. 580. In this respect, the Government stresses that significant progress has been made in the process of national dialogue. Indeed, the Higher Labour Council, a tripartite negotiating body set up as an ad hoc committee to deal with the matter of freedom of association, stated, in its "report on freedom of association", dated 5 October 1998, the following:
18. ... Tenth: in the area of public employment, tripartite dialogue (Government, Legislative Assembly, trade unions) shall be promoted to settle matters pertaining to strikes and collective bargaining on the basis of the public employment bill, negotiated by the various sectors during the Calderón Fournier administration.
19. In order to ensure the preceding, a joint committee shall be set up within the Legislative Assembly to discuss the abovementioned public employment bill ...
20. In this context, the President of the Republic issued Directive No. 103, dated 7 November 1998, published in the Official Gazette (No. 4 of 7 January 1999) to the Ministry of Labour and Social Security. Section 1 of this Directive reads as follows: "adopt the relevant administrative measures in order to: ... (f) promote dialogue concerning the public employment bill".
21. 581. The Government thus showed that it was fully willing to improve the regulations pertaining to the right to collective bargaining of public officials and resolve any matters that had remained pending with respect to the application of ILO Conventions ratified by our country.
22. 582. Furthermore, although it is not the subject of the complaint, the Government states that the Constitutional Court has taken an extremely important decision (Decision No. 1317-98 of 27 February 1998, Exp. 4222-a-92) which declares unconstitutional the banning of strikes in the public services (including services carried out by state officials or its institutions).
23. 583. As regards the "right to collective bargaining of civil servants", the Constitution provides for special statutes regulating civil servants and the Constitutional Court of the High Court of Justice, the highest judicial body in the country, whose major aim is to guarantee the supremacy of constitutional standards and principles, was entrusted with defining the statutes in force. Consequently, the major judicial body voted an important decision on 23 August 1992 (Decision No. 1692-92), and its corresponding addendum and statement (at 3 p.m. on 30 October of the same year), which declared unconstitutional the proceedings to settle collective disputes of an economic and social nature provided for under the Labour Code, by the administrations regulated by public employment law, as long as the law did not rectify this situation. The Constitutional Court was of the opinion that articles Nos. 191 and 192 of the Constitution, mentioned earlier in the text, justified the existence, within the public sector, of a system of regulations pertaining to conditions of employment under public law. In this respect, the public employment statutes referred to by the Constitutional Court necessarily imply consequences deriving from the nature of this relationship, with its own general principles which are not only distinct from those of labour law but also in many cases opposed to these. It goes without saying that the statement contained in the ruling covers the employment relationship between the public administration and its officials; however, in those sectors which are subject to a private employment system, the solution must be different. In this respect the Constitutional Court considered it necessary to specify that manual workers, workers and employees who are not part of the public administration are excluded from this system, when they are contracted by the State subject to regulations of private law.
24. 584. The Government points out that in view of the above and in an attempt to fill a void concerning the rights of officials in the public sector, the Government Council, at an ordinary session held on 6 October 1992, adopted Decree No. 162, containing "Regulations concerning collective bargaining in the public sector", with a view to obtaining a balance between the constitutional standards and principles in the area by establishing special regulations to settle collective disputes in the public sector which would guarantee the rights of the public servants, on one hand, and the public power, efficiency and principle of legality of the public administration, on the other hand. In accordance with the opinion of the Attorney-General's Office (C-161-98, dated 19 August 1998) the Constitutional Court's decisions have not, to date, affected the regulations in question, given that the only thing the Constitutional Court has denied civil servants has been to negotiate conditions of employment by means of an instrument referred to as "collective labour agreement", as stipulated under the third chapter of the Labour Code (section 54 and following). Contrary to what is stated in the complaint, the Attorney-General's opinion, which is binding for the administration, clearly establishes that there is no legal obstacle preventing the special system of bargaining for the public sector known as "an agreement" (convenio) (section 8 of the abovementioned regulations) from being used in practice, it being clearly understood that the negotiations must, from all points of view, comply with the provisions of the regulations, particularly with respect to the matters covered by the negotiations in question. Furthermore, another occurrence bears witness to the fact that collective bargaining in the public sector has made considerable strides recently, whilst also respecting the regulations governing the action of the administration: the Government refers to the bill on public employment (No. 13284), published in the Official Gazette (No. 210 of 29 October 1998) which is at present being examined by the Committee of Economic Affairs of the Legislative Assembly.
25. 585. Concerning the allegations with respect to the "collective agreement" concluded by SITRARENA and the administrative board of the National Registry, the Government refers to the reports established by the various competent authorities in this matter. First, in its circulars DM-269 and DM-830 dated 8 March and 28 July 1999, respectively, the Minister of Justice, to which the National Registry is responsible, points out that the "collective agreement" in the National Registry, which was established in the light of the regulations concerning collective bargaining in the public service, published in the Official Gazette (No. 45 of 5 March 1993), under Decree No. 162 of 9 October 1992, is riddled with various legal, constitutional and functional flaws, and therefore cannot be applied. Indeed, this document was not submitted to the competent body in the form and under the conditions prescribed and cannot therefore have any legal effect according to the provisions of the regulations concerning collective bargaining in the public service. The "collective agreement" is therefore not in force. Given the flaws with which the document is marred from the point of view of legal validity, the administrative body of the National Registry adopted, at its session No. 18-97 of 17 April 1997, the following decision:
26. 1. Given the information contained in the file which is before the Minister of Labour and Social Security concerning the collective agreement concluded between the National Registry and the Trade Union of Workers and Retired Workers of the National Registry and Related Persons (SITRARENA), a file which contains neither the original of this instrument of collective bargaining, nor even a duly certified copy of this instrument, the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector was unable either to take cognizance of this instrument or to make a pronouncement on the subject matter of the case, in the terms and under the conditions required by the regulations concerning collective bargaining in the public service (Decree No. 162 of 9 October 1992 of the Government Council). It is for this reason that the administrative body of the National Registry unanimously decided the following:
27. To annul and consider without legal effect all administrative actions and decisions taken by the administrative body as a result of the contents of the collective agreement which is considered null and void by this decision.
28. For the above reason, the collective agreement in question cannot be applied as a set of recognized regulations because it has no validity, it was not submitted in due form to the competent body and not approved by the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector, it can therefore be operative.
29. 586. Indeed, section 8 of the regulations concerning collective bargaining in the public service stipulates that "once negotiations are over, the parties shall communicate the content of the agreement to the committee so that it might revise, approve or disapprove one or any part of the agreement. Only the provision approved by the committee shall be retained in the agreement". In this particular case, this condition was not fulfilled. Furthermore, section 12 of the same regulations, which defines the attributions of the National Committee for Certification and Ratification of Collective Bargaining, points out under paragraph (c): that it is up to this body to "authorize the signature of the agreements submitted for its approval". It should be noted that the abovementioned regulations, which form the legal basis for the negotiation in question, stipulates that, in order for this to be effective vis-à-vis the parties and be considered in force, a mere signature on the record of proceedings is not enough; the content of the agreements must be brought to the attention of and studied, authorized or approved by the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector - which was not done in the case under consideration. It is for this reason that the collective bargaining in question is not legally valid.
30. 587. Similarly, in the document DM-1661-97 of 17 September 1997 that he sent to the secretary-general of the trade union of workers of the National Registry, the Minister of Labour at the time stressed "that there was no collective agreement signed by the National Registry and the trade union representatives in his office". Furthermore, in the document DM-1226-96 of 23 May 1996 that he sent to the Deputy Minister of Justice, Mónica Blanco, the Minister of Labour pointed out that: "it is materially impossible to comply with your request given that the collective instrument with which you are concerned is not amongst the documents at the disposal of the National Committee for Certification and Ratification of Collective Bargaining".
31. 588. All the above is confirmed by the content of the document that the Government enclosed with its communication and which was signed at the meeting held at the Ministry of Labour and Social Security on 16 October 1997, attended by the administrative board of the National Registry and SITRARENA. This meeting had been organized to examine the complaint lodged by SITRARENA to the Department of Labour Relations (of the Ministry of Labour and Social Security) reproaching the administrative body of the National Registry for knowing nothing about the collective bargaining. Paragraphs 2, 3 and 4 of the abovementioned document, which was signed by both parties, point out:
32. 2. That both parties agree that the way in which the text of the collective bargaining of the National Registry in question was examined at the Ministry of Labour and Social Security raises a number of doubts that justify reviewing the administrative file established by the competent body, i.e. the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector, particularly with a view to clarifying what has been carried out until the present date.
33. 3. Once the abovementioned doubts have been identified and clarified, the parties are willing to meet to assess and examine the document of collective bargaining in order to review it and attempt to adapt it to the new requirements and to the reference framework provided for under Costa Rican law in the area of collective bargaining in the public sector.
34. 4. Once the examination and revision mentioned above have been completed, both parties shall submit, in accordance with the procedure provided for, the document in question to the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector, upon whom it will be incumbent to analyse the document and make the final formalities.
35. It is therefore clear from the facts mentioned above that the collective bargaining is not in force since it is not valid because it was not submitted in due form to the National Committee for Certification for approval.
36. 589. Furthermore, in the decision it handed down on 1 September 1998 concerning the application for amparo (enforcement of constitutional rights) lodged by the Trade Union of Workers and Retired Persons of the National Registry following the non-application of the collective bargaining in question, the Constitutional Court upheld the arguments put forward by the administrative board of the National Registry, nonsuiting the application for amparo in its third preambular paragraph which reads as follows:
37. Page 120 of the file contains the circular DM-1661-97 of 17 September 1997, in which the Minister of Labour and Social Security, Mr. Farid Ayales Esna, informs Mr. Felipe Espinoza Fernández, Secretary-General of the Trade Union of Workers and Retired Persons of the National Registry, that there is no collective document signed by the National Registry and the trade union representatives at the Ministry of Labour. The Court therefore considers that approval was not given since the collective bargaining signed with the authorities of the National Registry had not been submitted to the Ministry by the appellant. The preceding comments are upheld by the statement made by the Minister of Justice in the report she submitted to this court - which, as pointed out, was established under oath - since the administrative board of the National Registry, when taking the decision which is the subject of the present procedure, takes account of the fact that "given the information contained in the file which is before the Minister of Labour and Social Security concerning the collective agreement concluded between the National Registry and the Trade Union of Workers and Retired Persons of the National Registry and Related Persons (SITRARENA), a file which contains neither the original of this instrument of collective bargaining nor even a duly certified copy of this instrument". In view of the above, the Minister concerned by the appeal stated in his report that "the collective agreement in question cannot be applied as a set of recognized regulations because it has no validity given that it was not submitted in due form to the competent body and not approved by the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector". Furthermore, the preceding comments are also confirmed by the content of the record of proceedings provided by the Ministry concerned by the appeal (see pages 113 and 114 of the file), adopted after a meeting between the Ministry in question and the appellant trade union, during which it was decided that once the document had been examined and reviewed, both parties would submit the said document to the National Committee for Certification and Ratification of Collective Bargaining in the Public Sector, upon whom it would be incumbent to analyse the content and decide on the final formalities. Given this situation, it is obvious that the necessary final steps to ensure that the collective bargaining concluded between the parties was fully valid were not taken and that, consequently, it is not possible to say that the complainant trade union was in possession of a subjective right or legal status justifying a violation of the principle of estoppel (actios propios), because various actions still have to be taken to complete the proceedings and receiveapproval of the said instrument by the competent body in accordance with Directive No. 162 of 9 October 1992 containing the regulations concerning collective bargaining in the public service dealing with the authorization of the signing of such agreements. In view of the above, the Court is of the opinion that none of the fundamental rights of the appellant were infringed and therefore declares the appeal nonsuited.
38. 590. The Minister of Justice points out that the administrative board has always been ready to reach an agreement with the trade union of workers of the National Registry, as may be seen from the abovementioned document, and that the appellant has always been the one responsible for causing all attempts at negotiation to fail. In December 1997, the Minister stated to the administrative magistrate, within the framework of another legal action on the same matter (which is in its final stages), that fresh negotiations were at present under way on the basis of points taken into consideration during the previous negotiations, it being understood that the points established as being illegal or unconstitutional could not be taken up in the new document.
39. 591. The Labour Directorate of the Ministry of Labour was also involved in this matter; this is a body legally entrusted with attempting to settle labour disputes out of court, which published detailed reports (enclosed with the communication) summarizing the various actions it undertook in this case between December 1994 and 4 December 1997. For its part, the National Labour Inspection Directorate did not receive any complaint from SITRARENA concerning the matters brought by this trade union before the Committee of Freedom of Association.
40. 592. The Government points out that, in their complaints, the complainant organizations completely fail to mention the negotiations in which the administration and SITRARENA are at present involved. These negotiations are taking place on the basis of the points analysed in the previous negotiations, which did not enter into force because of a series of legal flaws such as the absence of any signature of the parties on the original negotiating document, including that of the authorities of the National Registry. To date, those concerned have not succeeded in rectifying this state of affairs although many administrative overtures have been made between the parties. Furthermore, it should not be forgotten that the matter is at present in the hands of the law courts and that the proceedings are coming to an end.

C. The Committee's conclusions

1. 593. The Committee notes that, in this case, the complainant organization (SITRARENA) alleges that: (1) the regulations concerning collective bargaining in the public service in force, published in the Official Gazette of 5 March 1993, contains considerable restrictions (in particular, it obliges parties to collective bargaining to submit the text of their agreement to a committee of certification and ratification made up of a number of ministers, who might or might not approve the said agreement and exclude from it provisions they do not feel fit) and that it has not been applied to date; (2) within this framework, SITRARENA signed the "collective agreement" with the National Registry, but this agreement has not been applied because it has been ignored by the administrative board of the National Registry (which had nevertheless approved it) and by the Minister of Justice; furthermore, the National Committee of Certification and Ratification brought before the Attorney-General's Office the matter of the invalidity of the decree of the Government Council concerning the regulations pertaining to collective bargaining in the public service (reason for which the previous Minister of Labour did not convene the National Committee of Certification and Ratification for it to approve the "collective bargaining"; subsequently, the Minister of Labour stated that he did not have either the original or a duly certified copy of the "collective agreement" in question, bearing the signature of the parties and the date of the signature; (3) the complainant refers to the laws which encourage collective bargaining in the public sector and recalls that the authorities committed themselves to submitting to the Legislative Assembly a law concerning the settlement of disputes in the public sector.
2. 594. The Committee notes that the Government stresses the following points: (1) the regulations concerning collective bargaining in the public service are in force and authorize a specific form of bargaining in the public sector known as "agreement"; (2) there is a bill on public employment which will improve the opportunities for bargaining in the public sector under the conditions provided for by ILO Conventions; the Higher Labour Council (tripartite) decided on 5 October to encourage tripartite dialogue between the Government, the Legislative Assembly and the trade unions with a view to regulating collective bargaining on the basis of this bill, by setting up a joint committee in the Legislative Assembly; (3) as regards the "collective agreement" concluded between the National Registry and SITRARENA, it is riddled with a number of legal, constitutional and functional flaws, which make it inapplicable, thus explaining the fact that on 17 April 1997 the administrative board of the National Registry decided to repeal and consider invalid all the administrative acts and decisions ensuing from the collective agreement; in short, a mere signature at the end of the record of proceedings does not suffice, given that the content of agreements must be submitted to the National Committee for Certification and Ratification of Collective Bargaining which must approve it, conditions which were not fulfilled although provided for under the abovementioned regulations; furthermore, the agreement of "collective bargaining" submitted to the Ministry of Labour and Social Security was not dated and did not bear the signatures of the parties; (4) according to the document of 16 October 1997 (which the Government encloses with its communication), SITRARENA acknowledges, as moreover does the administrative board of the National Registry, that it has doubts on the procedure followed concerning the documentation with respect to the "collective agreement" of the National Registry, and the two parties state that once they have finished eamining and reviewing the "collective agreement" they will submit, in accordance with the procedure provided for, the document in question to the National Committee of Certification and Ratification, which will be responsible for making a final analysis; (5) the Constitutional Court notes, in its decision of 1 September 1998, that SITRARENA did not submit the "collective agreement" signed with the authorities of the National Registry and that the National Committee for Certification did not approve this document.
3. 595. The Committee considers, in the light of all these factors, that the instrument known as "collective agreement" concluded between SITRARENA and the National Registry does not fulfil the legal requirements provided for under the regulations concerning collective bargaining in the public service (absence of date and signatures, failure to submit the document - for approval - to the National Committee for Certification and Ratification). The Committee nevertheless notes that, irrespective of the above, parties had reached agreements - which apparently have started being applied for certain issues - and, in all events, signed the record of proceedings; it also notes that the provision contained in the regulations concerning collective bargaining in the public service which requires the approval by the National Committee for Certification and Ratification of agreements reached, is contrary to the principles of Convention No. 98; what is more, everything would seem to point to the fact that, in practice, the present system of bargaining does not function in a satisfactory way. The Committee notes that the parties are continuing negotiations with a view to revising the "collective bargaining" and submitting the document to the National Committee for Certification and Ratification.
4. 596. Under these circumstances, the Committee stresses the importance of adopting, as soon as possible, the bill on public employment which has been submitted to the Legislative Assembly and is at present being examined by the Committee on Legal Affairs (which the Committee noted with satisfaction at its November 1999 meeting (see 318th Report, para. 46)); the Committee draws the Government's attention to the fact that making the validity of collective agreements signed by the parties subject to approval by the authorities of these agreements is contrary to the principles of freedom of association (see Digest of decisions and principles of the Committee of Freedom of Association, 4th edition, 1996, paras. 869-874) and of Convention No. 98; it urges the National Registry and SITRARENA to try and settle in the very near future, on the basis of the unofficial agreement they reached, all the contentious points in the "collective agreement" and urges the Government to ensure that the National Committee for Certification and Ratification - made up of ministers and whose present attributions are incompatible with the principles of freedom of association - will not change the content of the final agreement between the parties; and it requests the Government to communicate to it the outcome of the administrative proceedings on the matter dealt with in this complaint, which are at present in their final stage.

The Committee's recommendations

1. 597. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Stressing the importance of adopting as soon as possible the bill on public employment submitted to the Legislative Assembly, the Committee reminds the Government that it might, if it so wishes, request the technical assistance of the ILO to ensure that the future law is fully in compliance with the principles of Convention No. 98.
   • (b) The Committee urges the National Registry and SITRARENA to try and settle, in the very near future, on the basis of the unofficial agreement they reached, all the contentious points in the "collective agreement".
   • (c) While drawing the Government's attention to the fact that making the validity of collective agreements signed by the parties subject to approval of these agreements by the authorities is contrary to the principles of Convention No. 98, the Committee urges the Government to ensure that the National Committee for Certification and Ratification will not change the content of the final agreement reached by the parties.
   • (d) The Committee requests the Government to inform it of the outcome of the administrative proceedings on the matter dealt with in this complaint, which at present are in their final stage.