Report in which the committee requests to be kept informed of development - Report No 327, March 2002

Case No 2104 (Costa Rica) - Complaint date: 06-OCT-00 - Closed

Allegations: Restrictions of the right of collective bargaining in the public sector, unfair labour practices in the public education sector

1. 507. The complaints are contained in communications from the Association of Employees of the University of Costa Rica (SINDEU), the Union of Medical Professionals of the Costa Rica Social Insurance Fund and Allied Institutions (SIPROCIMECA) and the Costa Rica Union of Education Workers (SEC), dated respectively 6 October 2000, 26 September 2001 and 15 November 2001. The SINDEU provided additional information in a communication dated 29 January 2001.
2. 508. The Government sent its observations in communications dated 5 January, 25 May, 24 August and 23 October 2001.
3. 509. 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. 510. In its communications of 20 September and 6 October 2000 and 29 January 2001, the Association of Employees of the University of Costa Rica (SINDEU) explains that in the past, associations representing employees of the State University, like the municipal sector organizations and autonomous institutions, have concluded collective agreements based on ILO Conventions and the National Constitution. The complainant alleges that the Constitutional Division of the Supreme Court of Justice, in Ruling No. 4453-00 of 24 May 2000, adopted a principle that absolutely ruled out any legal possibility of collective agreements in the state public sector. SINDEU considers that, according to Convention No. 98, the possibility of ruling out collective bargaining should exist only in the case of persons in positions of managerial authority, public administration or the like. In its communication of 26 September 2001, the Union of Medical Professionals of the Costa Rica Social Insurance Fund (SIPROCIMECA) points out that the principle adopted by the Constitutional Division prevents public employees with statutory employment status from negotiating their conditions of employment; the Fund has in fact declared that the conciliation agreement signed with the Union in 1993 is unconstitutional.
2. 511. SINDEU also alleges that following a strike, the university authorities were guilty of unfair labour practices (pay cuts; transfer and subsequent dismissal proceedings against trade union official Mr. Luis Enrique Chacón Solano for allegedly "abandoning his work constantly and without good reason"; use of blacklists; failure to respect the provision of the collective agreement regarding the declaration of disputes and leave of absence for the purpose of a "permanent session" of the union’s executive body (section 58(g) of the collective agreement), this being linked with the dismissal procedure against Mr. Chacón Solano. According to section 58(g):
3. The University shall, except in exceptional circumstances or cases of imminent risk, grant paid leave of absence for the purpose of carrying out trade union business in the following cases, and the appropriate authority shall be informed of the reasons for that leave of absence: [...]
4. (g) A dispute may be declared only by the union’s central executive body.
5. Before such a declaration is made, the competent authority shall be informed of the problem with a view to seeking a solution within a period of not more than 24 hours. If no solution is found by the end of that period, a dispute shall be declared.
6. It shall not be necessary to invoke this procedure before declaring a dispute where a solution has already been proposed in a previous ruling by a university authority.
7. In any case, the declaration shall take account of the interests of the University and those of the employees.
8. Once a dispute has been declared, up to 19 members of the union’s central executive committee shall be permitted leave of absence from their paid work for the purpose of convening a permanent session of the committee until the dispute is resolved.
9. In the case of a dispute arising in a section of the union, its section executive committee shall enjoy the same right but only for up to six of its members.
10. 512. SINDEU explains that, despite the commitments made over a number of years by the authorities, some ILO Conventions have not been ratified.
11. 513. Lastly, in its communication of 15 November 2001, the Costa Rica Union of Education Workers (SEC) supplied a copy of a resolution by the administrative authorities dated 7 November 2001, which confirms certain actions by the Ministry of Education with regard to trade union leave that violated the principles of ILO Conventions Nos. 87, 98 and 135 and have accordingly given rise to a complaint to the courts by the administrative authorities.
12. B. The Government's reply
13. 514. In its communications of 5 January, 25 May, 24 August and 23 October 2001, the Government states that the question of collective bargaining in the public sector, following the Constitutional Division Ruling No. 4453-00, had already been put to the ILO’s supervisory bodies by a trade union organization, and the Government refers to the relevant documents. The complainant (SINDEU) and the Rector of the University of Costa Rica requested a clarification of the ruling in question. This notwithstanding, the University Council on 22 August 2000 endorsed the Rector’s decision by upholding the collective agreement whose legal force and constitutionality had been questioned. This was reaffirmed on 7 September 2000, when the Council reaffirmed that all rights acquired by university staff under the collective agreement in question were and would continue to be maintained. The Government supplied copies of the relevant constitutional division rulings and describes the efforts that have been made in defence of the right of collective bargaining in the public sector, and specifically refers to the recent Executive Regulation of 31 May 2001, which governs that right in accordance with Convention No. 98, and for which the technical assistance of the ILO was obtained.
14. 515. The Government attached a copy of Ruling No. 4453-00 and of the Constitutional Division’s clarification, which in its sections most relevant to the present case states the following:
15. The Second Division of the Supreme Court of Justice hereby makes known its opinion: a) collective agreements covered by the terms of section 54 and following of the Labour Code are unconstitutional if they are concluded in the public sector and applicable to employees with a public (statutory) employment status; b) collective agreements are not unconstitutional if concluded in the public sector and applicable to public sector employees, officials or workers whose employment is covered by ordinary law; c) similarly, negotiated collective instruments are compatible with the Constitution where they have been extended or amended in accordance with the general policy regarding public sector collective agreements, unless they were negotiated with employees with a public employment status, in which case they are unconstitutional; d) the Administration and judges who examine labour cases must determine whether the workers concerned are covered by public law or ordinary law in the light of their present or former functions, with a view to determining whether they may be active subjects of collective agreements. This ruling is declarative and retroactive to the date of entry into force of the respective collective agreement, without prejudice to rights acquired in good faith. However, in accordance with section 91 of the Act respecting constitutional jurisdiction, the ruling shall take effect on the date on which its summary is published in the Gazette.
16. * * *
17. VIII. One final consideration: what the Division is expressing in the ruling is that it is possible, in any public entities deemed to be state undertakings or economic services, for collective agreements to be concluded, provided that the persons covered by them are not excluded by the Constitutional rules which prevent officials involved in administration from concluding collective agreements. Thus, in Part A of the substantive part of the ruling, it is stated that collective agreements are unconstitutional if they cover or are concluded by persons with public employment status. On the other hand, they are not unconstitutional where the employees concerned are in an employment arrangement covered by ordinary law (Part B). Within this basic framework of the ruling, it should be understood -- logically and because the point was drafted with clarity in mind -- that both these cases are part of the same conclusion, and in effect two side of the same coin. One collective agreement in the public sector may be constitutional for those with an employment arrangement governed by ordinary law, and unconstitutional for those whose employment is governed by public law. But who belongs to which sector? This will be decided by the Administration or by a judge (Part D). And Part C of the ruling refers to collective agreements that have been having effects since 1979 and which are not incompatible with the doctrine expounded in the present ruling. Which are those? This is also for the Administration to decide, including the constitutional supervisory bodies, and ultimately for the judge conducting hearings with a view to a final determination by the administrative authorities.
18. 516. In this regard, the Government reports that the bills approving ILO Conventions Nos. 151 and 154, regarding, inter alia, collective bargaining in the public sector, have been submitted to the Legislative Assembly, which shows the Government’s good will and its efforts to safeguard the institution of collective bargaining in the public sector in accordance with the ILO’s principles.
19. 517. The Government also states that another group of ILO instruments has been submitted to the Legislative Assembly. However, the Government points out that SINDEU has not specified to which ILO instruments it refers when it speaks of failure by the authorities to keep ratification commitments, and that in any case, ratification requires the approval of the instruments in question by the Legislative Assembly, which is separate from and independent of the judicial branch.
20. 518. The Government supplies copies of the various Ministry of Labour administrative resolutions that were adopted following the complaint by SINDEU of unfair labour practices. The most recent of these, dated 19 September 2001, confirms unfair labour practices by the Rector, Vice-Rector of Administration, and the Heads of the Supplies Payments and the Human Resources Departments of the University of Costa Rica in the form of pay cuts, the dismissal procedure against Luis Enrique Chacón Solano and the University’s actions with regard to declaring a dispute and permanent session of the SINDEU executive committee, although the contraventions had stopped since the actions in question took place (for example, in February 2001, the exclusion of Mr. Chacón Solano from the payroll was overruled, his normal pay was restored in March 2001, and on 19 March 2001 the Rector was notified of the suspension of the declaration of dispute and permanent session and of the reinstatement of Mr. Chacón Solano); there are therefore no grounds for bringing a complaint before the courts. The resolution urges the University authorities to refrain in future from this type of action against the union and its members. An appeal may be lodged against this resolution. It should also be noted that the investigation by the Labour Inspectorate has revealed anti-union practices with regard to the drawing up of blacklists and threats of pay cuts.

C. The Committee's conclusions

1. 519. As regards the alleged adverse effects of certain rulings by the Constitutional Division of the Supreme Court of Justice regarding the right of collective bargaining in the public sector, the Committee notes the Government’s observations and in particular the Executive Regulation of 31 May 2001 respecting that right. The Committee also notes that legislative bills to ratify ILO Conventions Nos. 151 and 154, which deal among other things with the right of collective bargaining in the public administration, have been submitted to the Legislative Assembly for approval. The Committee notes that the Committee of Experts has already expressed its views on the issue of collective bargaining in the public sector, as follows:
   • The Committee notes that, according to the report of the technical assistance mission, there are good grounds for believing, including the opinion expressed by the President of the Constitutional Chamber, that the Chamber’s rulings Nos. 2000-04453 of 24 May 2000 and 2000-7730 of 30 August 2000, as well as the Chamber’s vote of clarification (No. 2000-09690) of 1 November 2000, totally exclude collective bargaining for all public sector employees with a statutory employment status, including those working in public or commercial enterprises or in independent public institutions. The Committee notes the action taken by the Government, in the context of this case law, to defend the right of collective bargaining in the public sector, and more particularly the recent Decree No. 29576-MTSS of 31 May 2001 (regulations for the negotiation of collective agreements in the public sector), which only excludes from this right public servants of the highest level in the public sector, and that the above regulations, in accordance with the recommendations of the technical assistance provided by the ILO, includes certain substantial improvements with regard to the 1993 regulations (for example, abolition of the approval commission, broadening the scope of application of the Convention, limitations on collective bargaining only for the public sector or its representatives) and which were the subject of certain comments by the technical assistance mission with a view to developing future legislation, in which emphasis was placed on certain problems and on the need to clarify certain points.
   • Nevertheless, the Committee notes that the technical assistance mission, commenting on the above rulings of the Constitutional Chamber, "emphasizes the confusion, uncertainty and even legal insecurity existing with regard to the scope of the right to collective bargaining in the public sector in terms of the employees and public servants covered (according to the rulings, the administration of the public institutions or enterprises is responsible for determining which employees have statutory status, and their decision may in turn be appealed to the judicial authorities) and in parallel concerning the validity and effect of certain collective agreements which are in force, as well as the constitutionality of the large number (according to the Government) of de facto negotiations existing, and even of the recent regulations respecting collective bargaining in the public sector of 31 May 2001. The mission also emphasizes that the ruling of 24 May 2000 indicates that it has retroactive effect".
   • The Committee expresses its deep concern over this situation, which constitutes a serious violation of Convention No. 98 in terms of the right to collective bargaining in the public sector, since the Convention only allows the exclusion from its application of public servants engaged in the administration of the State (Article 6). However, the Committee notes the existence of a Bill which is before the Legislative Assembly and is supported by the social partners and the Government, the President of the Legislative Assembly and the main opposition party, providing for the ratification of ILO Conventions Nos. 151 and 154 (which address, among other matters, the right of collective bargaining in the public administration) and which would make it possible to find solutions to the problems that exist and strengthen the application of Convention No. 98. It expresses the firm hope that it will be adopted in the very near future and requests the Government to provide information in this respect.
2. 520. The Committee shares the view expressed by the Committee of Experts. It expresses its deep concern at the situation with regard to the right of collective bargaining in the public sector, which constitutes a serious violation of Convention No. 98, and trusts that this situation may be resolved once the Legislative Assembly ratifies Conventions Nos. 151 and 154. The Committee emphasizes the principle that: "It is imperative that the legislation contain specific provisions clearly and explicitly recognizing the right of organizations of public employees and officials who are not acting in the capacity of agents of the state administration to conclude collective agreements. From the point of view of the principles laid down by the supervisory bodies of the ILO in connection with Convention No. 98, this right could only be denied to officials working in the ministries and other comparable government bodies but not, for example, to persons working in public undertakings or autonomous public institutions" [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, para. 795].
3. 521. As regards the allegations of anti-union discrimination by the University of Costa Rica, the Committee notes with interest the Government’s statements to the effect that the anti-union actions in question (dismissal procedure against trade union official Mr. Luis Enrique Chacón Solano, pay cuts, blacklists with threats of pay cuts, etc.) have been remedied, and that the University authorities have been urged in future to refrain from taking action of that type. Taking into account the fact that an appeal may be lodged against the administrative resolution confirming the existence of these unfair practices, the Committee requests the Government to keep it informed of any appeal that may be lodged and of any new decision.
4. 522. As regards the allegation regarding the failure by the authorities to honour the commitments to ratify certain ILO Conventions, the Committee notes the Government’s statements to the effect that the complainant has not specified which instruments it is referring to, or what ratification requires approval of the instruments by the Legislative Assembly, which is separate from and independent of the executive branch. The Committee notes that according to the Government, various ILO instruments, including Conventions Nos. 151 and 154, have been submitted to the Legislative Assembly.
5. 523. Lastly, the Committee requests the Government to keep it informed of the outcome of the complaint lodged by the administrative authorities to the courts after finding that the Ministry of Education had committed violations in the matter of trade union leave.

The Committee's recommendations

1. 524. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expresses its deep concern at the situation with regard to the right of collective bargaining in the public sector, which constitutes a serious violation of Convention No. 98, and trusts that this situation may be resolved once the Legislative Assembly ratifies Conventions Nos. 151 and 154.
   • (b) The Committee requests the Government, with regard to the matter of unfair labour practices noted by the administrative authorities, to keep it informed of any appeal and any new decision.
   • (c) The Committee requests the Government to keep it informed of the outcome of the complaint lodged by the administrative authorities to the courts after confirming that the Ministry of Education had committed violations in the matter of trade union leave.