Report in which the committee requests to be kept informed of development - Report No 337, June 2005

Case No 2367 (Costa Rica) - Complaint date: 16-JUN-04 - Closed

Allegations: The complainant organization complains against excessive delays affecting cases of anti-trade union dismissal against the enterprise Fertilizantes de Centroamérica (FERTICA); alleges that representatives of the enterprise forced their way into the trade union office and storage space assigned to the Association of Workers of the Fertilizer Sector (ATF) as a consequence of the collective bargaining process, requisitioning documents and goods; and refers to a judicial decision which notes various violations of trade union rights by the aforementioned enterprise

771. The complaint is contained in a communication from the Rerum Novarum Confederation of Workers (CTRN) dated 16 June 2004.

1. 772. The Government sent its observations in a communication dated 26 January 2005.
2. 773. 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. 774. In its communication dated 16 June 2004, the Rerum Novarum Confederation of Workers (CTRN) states that on two occasions the Committee on Freedom of Association (Cases Nos. 1879 and 1966) examined complaints related to violation of trade union rights by the enterprise Fertilizantes de Centroamérica (FERTICA). However, more than eight years after the presentation of the complaints, the enterprise has still not complied with the Committee’s recommendations and the legal procedure that began as a result of the dismissal of trade union officials, who have not yet been reinstated to their posts within the enterprise, is still ongoing. Referring to previous statements made by the Government, according to which it is the parties involved who are, for the most part, responsible for the delay in procedure, the complainant organization states that, following manoeuvring on the part of the enterprise in 1995, the Labour Inspectorate only lodged a judicial complaint for violation of the collective agreement a year later which led the judicial authority to revoke the action, as requested by the enterprise.
2. 775. The complainant organization adds that on 6 June 2003, representatives of the enterprise FERTICA forced their way into the storage space assigned to the Association of Workers of the Fertilizer Sector (ATF) as a consequence of the collective agreement, forcing the locks and seizing all the articles stored inside. The legal procedure launched as a consequence of this action is still ongoing. Likewise, on 27 August 2003, representatives of the enterprise broke into the trade union office, breaking the lock and requisitioning all the documents contained within (lists of members, registers, confidential strategic documents, etc.), filing cabinets and other objects. The enterprise justified its actions by saying that there were rats and other pests present on the premises but the complainant organization considers this move to be yet another attempt at disbanding the trade union organization by depriving it of its possessions and resources. The fact that it will take some time for the Ministry of Labour to process these new facts may mean that future cases brought by the trade union organization might not be heard.
3. 776. The complainant organization states that, in its ruling dated 2 April 2001, the Lower Small Claims Court of Puntarenas ruled that the enterprise FERTICA was “guilty of employment practices which have been condemned by the Ministry of Labour and Social Security, to the detriment of the Association of Workers of the Fertilizer Sector (ATF) represented by Marco Antonio Guzmán Rodríguez with regard to: (1) promoting the formation of an executive board in parallel to the ATF; (2) unjustified refusal to enter into the collective bargaining process in accordance with established legal procedures; (3) withholding the ordinary membership fees deducted from wages of ATF members and transferring them to a group or executive board not established in accordance with the law”. In the same document, the complainant organization states that FERTICA’s Superintendent of Administration admitted that correspondence addressed to the workers (telegrams in which the trade union called on them to attend an assembly) had also been opened and withheld; the employer carried out other actions such as compiling blacklists of trade unionist members (including the Secretary-General) within the various companies and workplaces.
4. B. The Government’s reply
5. 777. In its communication dated 26 January 2005, the Government states that it regrets the fact that the complainant organization refers yet again to issues which have already been examined by the Committee on Freedom of Association when studying Cases Nos. 1966 and 1879, for example, the delay in the legal procedure concerning the enterprise FERTICA where it was the opposing parties who were for the most part responsible for slowing up proceedings through the use of delaying tactics. The Government reiterates its previous replies in the abovementioned cases, recalling the Committee’s previous conclusions highlighting the positive measures taken and states that to circumvent due process would be to contravene national legislation as laid out in the Constitution, and, in the case in question, the Ministry of Labour fulfilled its function as a mediator whilst taking into account all of the Committee’s recommendations and repeatedly urging the parties to comply with the abovementioned recommendations during numerous meetings with those same parties. The Government refutes the accusation that it ignored the Committee’s recommendations.
6. 778. The Government states that the courts have exclusive competence concerning the reinstatement of the workers who were dismissed. The Government recalls that it submitted a draft reform to the Labour Code on protection of association to the Legislative Assembly that introduces a less lengthy legal procedure to which trade union officials and members may have recourse in cases of dismissal for reasons linked to membership of a trade union. Such a legal procedure would provide a response to comments referring to the delays affecting cases of anti-trade union discrimination. Furthermore, a process of consultation, study and observations is currently under way concerning a draft reform concerning labour procedure. The Supreme Court of Justice, the Ministry of Labour and workers’ and employers’ organizations are all participating in this process, which is aimed at modifying the Labour Code and introducing the principle of oral proceedings with the aim of expediting the procedure and reducing the legal backlog. The ILO is providing technical assistance, supporting the interested parties so that they may contribute to the draft prior to its submission to the Legislative Assembly.
7. 779. The Government regrets the fact that the complainant organization has issued a series of subjective statements regarding the case in question and the suggestion that the authorities are somehow responsible for the delays and inefficiency affecting the proceedings concerning anti-trade union discrimination. In any case, the Government makes it clear that it is fully committed to resolving the issue of the supposed delays affecting administrative procedures related to unfair employment practices, through the definition of reasonable policies protecting the rights of workers belonging to trade unions, guaranteeing swift procedures without infringing upon constitutional guarantees concerning due process and legitimate defence.
8. 780. As to the “fresh allegations” made by the complainant organization, the Government points to the constant work carried out by the administrative authorities in accordance with the existing legal order to resolve any instances of unfair employment practices which might arise within the enterprise FERTICA, in accordance with the application of due process and the principle of fair defence.
9. 781. As to the fact that the enterprise FERTICA cleared out the storage space belonging to the ATF, the Government states that according to the administrative investigation carried out by the Labour Inspectorate on 16 June 2003 and based on the evidence gathered.
10. - The enterprise stated that it had requested the Secretary of the ATF to be present when the storage space was being cleared out but the Secretary chose not to attend.
11. - The enterprise entered a storage space which had been made available to the ATF as a consequence of a collective agreement and which has not been used since 1995.
12. - Once the consultants on labour affairs and the higher echelons of the administrative authorities had been consulted, it was decided that the Ministry could not take any legal action against the enterprise, rather it was up to the ATF itself to take the appropriate action before the relevant legal body.
13. - The Labour Inspector’s ruling, as indicated above, was duly communicated to the ATF which at no time challenged it.
14. 782. With regard to the entry effected by employees of FERTICA into the trade union office of the ATF and the transfer of furniture, office equipment and documents to another premises, based on the evidence collected, in a ruling dated 18 May 2004, the Labour Inspectorate concluded that there was no doubt whatsoever that the enterprise FERTICA had infringed article 363 of the Labour Code by unilaterally and, without having given prior warning, opening the office set aside for the trade union ATF which has been constantly active on the premises in question and has held meetings there, thus hindering and limiting the ATF’s trade union activities and violating its privacy. The transfer of the objects in question caused disruption and obstructed the trade union in its work, as the trade union is not aware of the present location of the furniture, documents and office equipment, according to documents sent by the Government. In light of this ruling, in court the Ministry of Labour accused the enterprise of employing unfair practices.
15. 783. All of this goes to show how diligently and efficiently the Ministry of Labour has dealt with the situation whilst explicitly condemning any anti-trade union practices when evidence of such illegal practices has been produced. At no time has the relevant Regional Directorate of the Ministry of Labour attempted to delay administrative proceedings, nor has it in any way indulged the enterprise FERTICA; indeed, there exists a prior case whereby the abovementioned enterprise lodged an application for amparo (enforcement of constitutional rights) against the administrative authority for alleged state of defencelessness, arguing that its (the enterprise’s) basic rights were being violated in the course of the administrative process carried out, a request turned down by the Constitutional Court. The ruling (issued in February 2004) went against the enterprise.
16. 784. Based on the facts listed above, the Government requests that the complaint lodged by the complainant organization be rejected.
17. 785. Finally, the Government adds a report prepared by the enterprise FERTICA with regard to the complaint in question, according to which:
18. - In 1995, when the entire workforce at the Carrizal de Puntarenas plant was dismissed and paid off in full (including the Secretary-General of the ATF), owing to the financial difficulties affecting FERTICA at the time, the collective agreement no longer remained in force and therefore no longer applied. This lapse in the application of the agreement is the subject of Case No. 96-000263-214-LA pursued by the ATF in the Labour Court of the Second Circuit of San José against FERTICA. On this occasion, the National Labour Inspection Directorate yet again took FERTICA to court for, amongst other things, having failed to apply the collective labour agreement, a legal action dealt with in Case No. 191-1-96.
19. - From September 1995 onward, support for the ATF amongst the workers fell dramatically and currently none of the more than 123 employees working at the Carrizal de Puntarenas plant belong to the trade union. Rather, those workers currently working for the enterprise have claims pending against the leadership of the ATF, supposedly related to goods that, according to the workers, have disappeared. As a result of this, the enterprise has virtually no knowledge of the current situation regarding this trade union, or of the composition of its executive board.
20. - Since September 1995, when the collective agreement ceased to be applied and, as a consequence, the storage space was closed, the trade union ATF has made no move to open the storage space and indeed abandoned it completely. The ATF limited itself to launching Case No. 96-000263-214-LA, as mentioned above, requesting that FERTICA compensate it for “all the damages and harm done to my client through the illegal and arbitrary closure of the storage space”. This case is currently being examined. Because the trade union had abandoned the storage space, the foodstuffs and other consumables that were being stored there had rotted, providing a breeding ground for rats and other animals that endangered the health of workers. Thus, on 10 June 2003, the enterprise proceeded to make an inventory of the goods stored within and to clean the premises. Proof of this was duly provided to the Regional Office of this Ministry in the city of Puntarenas. Prior to the operation, on 10 April 2003, the Plant Manager contacted the Secretary of the trade union, Don Marcos Guzmán Rodríguez, to attend the clean-up operation and inventory of the contents of the storage space, an invitation that was turned down by the gentleman in question, as can be seen from his note dated 22 April 2003. Indeed, Mr. Guzmán Rodríguez’s note stated that the ATF had decided not to be present at the opening of the storage space, a fact which is an important element in the legal proceedings on the violation of the collective agreement. At no time was the trade union ATF evicted from the storage space. Furthermore, since September 1995 the ATF had not been in possession of the abovementioned storage space.
21. - As to the allegation concerning the trade union office of the ATF, the enterprise FERTICA states that, given the situation regarding the storage space, it was forced to act. Despite the fact that the collective agreement was no longer in force, as pointed out previously, at no time did the enterprise deny its employees access to the office that was placed at their disposal for conducting trade union business. However, the trade union more or less stopped using the premises although it had a door allowing access from the outside. When the office was abandoned, the build-up of dirt meant that it was necessary to clean it and make an inventory of the goods stored within, according to a legal document prepared by a notary on 27 August 2003. On the same day, the Secretary of the ATF, Don Marcos Guzmán Rodríguez, was sent the note numbered GAF-086-03 in which he was informed that the office had been relocated and that he would have “corresponding access” to the new premises.
22. - The documents were prepared by the notary at a time when it was vital that the storage space and the office of the trade union be cleaned because the dirt and filth that had built up were posing a threat to the health of the workers carrying out tasks near those premises. The abovementioned documents were made available to the Secretary of the ATF so that he and his friends could collect whatever belonged to them. However, they did not pick up anything whatsoever, neither did they visit the premises again. The Administrative and Financial Director of FERTICA informed the Secretary of the trade union, Marcos Antonio Guzmán Rodríguez that “the trade union office is at your disposal”, according to an official letter dated 27 August 2003. FERTICA states that for the corresponding legal effects both the space taken up by the storage area and that occupied by the office of the trade union are the property of FERTICA and are private property and must be respected as such by the trade union.
23. - To use a colloquialism, Mr. Guzmán Rodríguez has “milked dry” the case concerning unfair practices; that is to say, he has been going over and over issues dating back to 1997 which have already been resolved.
24. - As to the excessive delays affecting the procedures, the complaint reiterates issues already dealt with by the Committee employing identical arguments; FERTICA is not obliged in any way to examine or respond to the references to the authorities in the shape of the Ministry of Labour and Social Security and the Judiciary, although those authorities will respond fully. All cases involving the complaint against FERTICA have been examined, resolved and/or dropped, as has been shown. Should the complaint possibly have some grounds with regard to the legislation in force then this would hypothetically lead to a possible reform of that legislation.

C. The Committee’s conclusions

1. 786. The Committee notes that in the present complaint the complainant organization has presented the following allegations: excessive delays affecting cases of anti-trade union dismissal against the enterprise Fertilizantes de Centroamérica (FERTICA); representatives of the enterprise forced their way into the trade union office and storage space assigned to the Association of Workers of the Fertilizer Sector (ATF) as a consequence of the collective bargaining process, requisitioning documents and goods; the complainant organization also refers to a judicial decision which notes various violations of trade union rights by the aforementioned enterprise.
2. 787. As to the allegation concerning delays in the legal procedure (over eight years) concerning the case related to the dismissal of trade union officials of the Association of Workers of the Fertilizer Sector, the Committee takes note of the Government’s statements, according to which: (1) the Ministry of Labour fulfilled its function as mediator, taking into account each of the Committee’s recommendations regarding Cases Nos. 1879 and 1966 concerning the enterprise Fertilizantes de Centroamérica (FERTICA); (2) the courts have exclusive competence in the matter of the reinstatement of the workers who were dismissed and cannot circumvent due process; (3) the parties involved in the dispute were principally responsible for the delays affecting the process owing to the delaying tactics they employed; (4) the Government is fully committed to resolving the problem of supposed delays to legal procedures and refers to a draft law currently being examined by the Legislative Assembly aimed at reforming the Labour Code which introduces a less lengthy legal procedure that trade union officials and members may have recourse to in cases of dismissal for reasons linked to membership of a trade union. Furthermore, a process of consultation, study and observations is currently under way concerning a draft reform concerning labour procedure (this has still not been submitted to the Legislative Assembly). The Supreme Court of Justice, the Ministry of Labour and workers’ and employers’ organizations are all participating in this process, which is aimed at modifying the Labour Code and introducing the principle of oral proceedings with the aim of expediting the procedure and reducing the legal backlog. The ILO is providing technical assistance for the draft. The Committee notes that the enterprise FERTICA highlighted the fact that the issue of delays to proceedings had already been dealt with by the Committee when examining previous cases.
3. 788. The Committee notes that it has already examined the issue of delays affecting legal procedures related to the dismissal of trade union officials of the ATF. However, the Committee stresses that the complainant organization highlighted the fact that the legal procedure in question is still ongoing more than eight and a half years after the dismissals took place. In this respect the Committee can only note this fact and deplore the excessive delay to the abovementioned case and reiterate that “… proceedings relating to matters of anti-union discrimination, in violation of Convention No. 98, should be examined promptly, so that the necessary corrective measures can be really effective; excessive delay in dealing with anti-union discrimination cases and, in particular, the long delay in deciding proceedings for the reinstatement of dismissed union leaders amounts to a denial of justice and thus a denial of the union rights of those affected” [see Report No. 311, Case No. 1966 (Costa Rica), para. 358]. Whilst taking note of the efforts being made by the authorities to resolve the question of delays to legal proceedings, the Committee once again expresses its concern at the delays affecting proceedings, in particular with regard to the present case. The Committee requests the Government to take the necessary measures to ensure that the draft laws it referred to which are aimed at speeding up the operations of the legal system are adopted promptly. The Committee expects that the judicial authority will issue a ruling on the dismissal of the trade union officials of the ATF without delay, given that over eight-and-a-half years have passed since the dismissals took place and requests the Government to communicate a copy of the ruling as soon as it is issued.
4. 789. As to the ruling handed down by the Lower Small Claims Court of Puntarenas on 8 April 2001, communicated by the complainant organization, concerning the accusation of unfair employment practices, the Committee notes that according to the ruling as quoted by the complainant organization, the judicial authority found the enterprise FERTICA to be guilty of unfair employment practices condemned by the Ministry of Labour (promoting the formation of a parallel executive board to the ATF, unjustified refusal to negotiate, withholding of membership fee deductions from the wages of trade union members, etc.). In this respect, the Committee notes with interest that this ruling is in line with the conclusions it (the Committee) formulated concerning Case No. 1966 [see Report No. 316, para. 43 onwards]. Moreover, the Committee notes that according to the complainant organization, in its ruling, the Small Claims Court concluded that the enterprise drew up blacklists and tampered with trade union correspondence. The Committee requests the Government to communicate a copy of the abovementioned ruling handed down by the Lower Small Claims Court of Puntarenas.
5. 790. As to the allegation that on 10 May 2003 representatives of the enterprise FERTICA forced their way into the storage space allocated to the ATF as a consequence of the collective agreement, forcing the locks and removing all the articles that were stored within, the Committee notes that the Government states that the investigation carried out by the Labour Inspectorate gave rise to the following conclusions: (1) that the enterprise opened up the storage space allocated to the ATF as a consequence of a collective agreement which had not been in force since 1995; (2) it is up to the ATF to take its case to court as the Ministry of Labour cannot launch any kind of legal action against the enterprise; (3) the ATF did not appeal against the administrative ruling handed down in this case. The Committee notes that the enterprise FERTICA states that it invited the Secretary of the ATF to participate in the clean-up operation and the inventory of the contents of the storage space (although he decided not to attend) and that this measure was taken because of the threat posed to the health of the workers by the state of the storage space which had been abandoned since 1995 (filth, dirt, rats). The Committee notes that the enterprise denies that it confiscated trade union property and states that the document prepared by a notary concerning the opening and cleaning of the storage space was sent to the Secretary of the ATF so that trade union members could collect anything they felt belonged to them but they did not collect anything, neither did they return to the premises. Given the state of abandon of the storage space since 1995, the health reasons presented by the enterprise and the invitation which was extended to the trade union to attend the clean-up and inventory operation concerning the premises, the Committee will not proceed with the examination of this allegation.
6. 791. As to the entry effected by representatives of FERTICA into the trade union office of the AFT and the requisitioning of documents and goods, the Committee notes the Government’s statements, according to which: (1) based on the evidence gathered, following an investigation, the Labour Inspectorate concluded in a ruling handed down on 18 May 2004 that there was no doubt that the enterprise FERTICA had infringed article 363 of the Labour Code by unilaterally and, without having given prior warning, opening the office set aside for the trade union ATF which has been constantly active and has held meetings at the premises in question, thus hindering and limiting the ATF’s trade union activities and violating its privacy. (2) the transfer of the office from one location to another caused disruption and obstructed the trade union in its work, as the trade union is not aware of the present location of the furniture, documents and office equipment, according to documents sent by the Government. In light of this ruling, in court the Ministry of Labour accused the enterprise of employing unfair practices.
7. 792. The Committee notes that contrary to what occurred in the case of the storage space allocated to the ATF trade union as a consequence of the collective agreement, the enterprise did not give prior warning, either of the opening of the trade union office to carry out cleaning and an inventory, or of the relocation of the office to other premises belonging to the enterprise. The Committee stresses that according to the investigation carried out by the Ministry of Labour, the trade union is unaware of the whereabouts of furniture, documents and office equipment taken from the ATF trade union office where the trade union held its meeting and this constitutes a violation of the trade union’s privacy and hinders it in its work. The Committee deplores the fact that representatives of the enterprise FERTICA unilaterally and without prior warning or consent entered the office of the ATF trade union and relocated it to other premises belonging to the enterprise. The Committee requests the Government to communicate a copy of the ruling to be handed down as a consequence of the legal proceedings instituted by the Ministry of Labour for unfair employment practices and expects that the ruling will be handed down in the near future, restitution will be made for the damages and the ATF trade union will have its possessions returned to it.

The Committee's recommendations

1. 793. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As to the allegations concerning delays affecting procedure in the case concerning the dismissal of trade union officials of the Association of Workers of the Fertilizer Sector (more than eight-and-a-half years after the dismissals took place), the Committee notes and deplores the excessive delays affecting the abovementioned case and recalls that proceedings relating to matters of anti-union discrimination, in violation of Convention No. 98, should be examined promptly, so that the necessary corrective measures can be really effective; excessive delay in dealing with anti-union discrimination cases and, in particular, the long delay in deciding proceedings for the reinstatement of dismissed union leaders amounts to a denial of justice and thus a denial of the union rights of those affected. Whilst taking note of the efforts being made by the authorities to resolve the question of delays to legal proceedings, the Committee once again expresses its concern at the delays affecting proceedings, in particular with regard to the present case. The Committee requests the Government to take the necessary measures to ensure that the draft laws it referred to which are aimed at speeding up the operations of the legal system are adopted promptly. The Committee expects that the judicial authority will issue a ruling on the dismissal of the trade union officials of the ATF without delay, given that over eight and a half years have passed since the dismissals took place and requests the Government to communicate a copy of the ruling as soon as it is issued.
   • (b) As to the entry effected by employees of FERTICA into the trade union office of the AFT and requisitioning of documents and goods, the Committee deplores the fact that representatives of the enterprise FERTICA unilaterally and without prior warning or consent entered into the office of the ATF trade union and relocated it to other premises belonging to the enterprise. The Committee requests the Government to communicate a copy of the ruling to be handed down as a consequence of the legal process undertaken by the Ministry of Labour for unfair employment practices and expects that the ruling will be handed down in the near future, restitution will be made for the damages and the ATF trade union will have its possessions returned to it.
   • (c) The Committee requests the Government to communicate a copy of the ruling dated 8 April 2001, handed down by the Lower Small Claims Court of Puntarenas.