Report in which the committee requests to be kept informed of development - Report No 338, November 2005

Case No 2385 (Costa Rica) - Complaint date: 26-JUL-04 - Closed

Allegations: Making conditions of work and employment in the public sector subject to the directives of an external body (the National Certification Commission), excessive delays in the collective bargaining process attributable to the authorities; amendment of agreed clauses by the National Certification Commission; proceedings for unconstitutionality in the courts instigated by the Libertarian Party and the Ombudsman against the agreements concluded between the parties

756. The complaint is contained in a letter from the Rerum Novarum Confederation of Workers (CTRN) and the Union of Workers and Retirees of the National Registry (SITRARENA) dated 26 July 2004. The International Confederation of Free Trade Unions (ICFTU) associated itself with the complaint in its letter of 22 September 2004.

1. 757. The Government replied in letters dated 2 and 19 May 2005.
2. 758. 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. 759. In its letter of 26 July 2004 (with which the International Confederation of Free Trade Unions (ICFTU) associated itself in its letter of 22 September 2004), the Rerum Novarum Confederation of Workers (CTRN) and its affiliated organization, the Trade Union of Workers and Retirees of the National Registry (SITRARENA), allege that in Costa Rica there is a kind of conspiracy involving the three Powers of the Republic (Executive Power, Legislative Power and Judicial Power) since they pursue a policy of ignoring the rights of freedom of association and collective bargaining. This orchestrated attack on trade union freedoms has been joined by the Ombudsman, the Civil Service Regulatory Authority (ARESEP) and certain groups of political parties which have deputies in the Legislative Assembly, such as the Libertarian Party which, from its narrow standpoint, regards collective bargaining as the privilege of a few workers.
2. 760. The complainant organizations recall the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2030 relating to the collective bargaining process in the National Registry in 1997, under the regulations on collective bargaining for civil servants (Governing Council Agreement No. 162). On that occasion, drawing the Government’s attention that approval by the authorities of collective agreements signed by the parties in order for them to enter into force is contrary to Convention No. 98, the Committee urged the Government to ensure that the National Authorization and Ratification Commission did not alter the content of what had been definitively agreed between the parties. The complainant organizations state that at present the text applicable to collective bargaining in the public sector is Executive Decree No. 29576-MTSS of 15 June 2001.
3. 761. Almost a year after the examination by the Committee on Freedom of Association of Case No. 2030, in the 2000 bargaining round, the parties concluded the bargaining process and signed the corresponding agreement. The collective agreement was then filed with the Public Sector Certification Commission, in the Office of the President of the Commission, the Minister of Labour, for approval. Strangely, at the same time, the members of the Administrative Board of the National Registry (of which the Minister of Justice is president) signed a final and parallel document which they sent to the National Certification Commission objecting to clauses which had already been signed by their representatives requesting that certain clauses which had already been agreed should not be approved, and a document other than the one negotiated be issued. Rather than refuse the request of the employers’ representatives of the National Registry, the Minister of Labour did what he was asked. Thus, the majority of the clauses of the collective agreement were mutilated and the text signed by the parties was changed, and subsequently approved by the Commission’s resolution No. 001-2000 of 21 November 2000. In the light of the foregoing, it can be seen that the National Certification Commission is a body whose actions contravene Convention No. 98.
4. 762. Although SITRARENA lodged an appeal against the resolution, the National Certification Commission took almost a year and a half to reach a decision, in resolution No. 02-0002 of 10 July 2002, leaving the collective agreement equally mutilated and with some of the agreed clauses changed. During the time when the National Certification Commission delayed in reaching resolution No. 02-0002, the Administration of the National Registry did not apply the agreement on the grounds that SITRARENA had challenged it. This delay meant that the approved text only came into effect just prior to its expiry (22 November 2002), i.e. it was only applied for five months.
5. 763. By way of example, among the most important changes, it was agreed between the parties that half-time trade union leave would be granted to four SITRARENA representatives, but resolution No. 001-2000 only allowed half-time leave for two, thus cutting out two of those agreed. In addition, different and reduced powers were assigned to the joint bipartite organ, the Industrial Relations Board.
6. 764. As regards the years 2002 to 2004, the complainant organizations allege that SITRARENA submitted a new collective agreement to the Minister of Justice, the National Certification Commission and the Minister of Labour. A month after the expiry of the previous collective agreement, SITRARENA had to denounce the previous agreement under article 64 of the Labour Code, and submit a new agreement with the clauses that it wished to negotiate. Although a bargaining process took place, up to the time of the submission of the complaint, it has not been possible to conclude it. Indeed, the present Minister of Justice insisted that before entering into negotiations, authorization from the National Certification Commission was required, a process which lasted for over six months before the Commission issued a document in which it indicated to the employers’ representatives, prior to the collective bargaining process, which clauses it could or must negotiate (Decision No. 7-2003 of the National Certification Commission). The trade union had to exert pressure by means of a strike. It was after the strike in the National Registry by SITRARENA, on 16 September 2003, that the collective bargaining process began, which was not an open process as shown by the minutes of each bargaining session, since the employers’ representatives indicated in each clause that the Commission had not authorized them to negotiate and thus they were unable to do so.
7. 765. Under the decree of 2001, prior to the bargaining process, a body external to the bargaining process analyses the clauses and indicates which of them can or must be negotiated, which in the opinion of the complainants is in violation of the international Conventions of the ILO. The National Public Sector Authorizing Commission is composed only of members of the Executive Power (ministers and their representatives) and some officials of public institutions such as the Director of the Civil Service and the Budget Authority.
8. 766. In addition, in the bargaining, the Minister of Justice adduces that clause 89, which refers to equality of posts, should not be negotiated. That clause states: “Staff of the National Registry who perform the same functions and assume the same civil, penal and administrative responsibilities should received the same basic wage.” This is without prejudice to any incentives or bonuses awarded for academic requirements in different levels or groups within the respective grades. The effect of the foregoing is to ensure equivalence between the basic wage of officials working as registrars, certifying officers, technical assistants, registry assistants and computer technicians. Specifically, although the Public Sector Authorizing Commission authorized this clause to be negotiated, the Minister refused and sent a note to the Civil Service asking whether it was possible to proceed with that clause, despite the fact that the Director of the Civil Service is one of the officials who signed the decision of the National Certification Commission authorizing negotiation of clause 89. The subordinates of the Minister of Justice then indicate that as there is an action pending, it is not possible to negotiate.
9. 767. In addition, deputies in the Legislative Power, members of the Libertarian Party, claim that any clause which exceeds the rights contained in the Costa Rican Labour Code, and which violates principles of equality and reasonableness are “unreasonable and disproportionate privileges”. These deputies lodged a claim of unconstitutionality with the Constitutional Chamber of the Supreme Court of Justice (IVth Chamber) to delete articles of the agreement which had been agreed from the National Registry collective agreement, and requested that holidays, trade union leave for officials, leave to attend training seminars, leave to attend general assemblies, celebration of the Registry Officials Day, among others, should be abolished. This application was admitted for consideration in the Constitutional Chamber but it is not known what the outcome will be.
10. 768. Nevertheless, it should be noted that there have already been decisions of the Constitutional Chamber which accept the view of the Ombudsman’s Office that collective bargaining in the public sector is unconstitutional, and ordering the deletion of certain articles of collective agreements, negotiated between the parties, in state enterprises, which established rights in favour of workers which they had enjoyed for over 20 years. A technical assistance mission which visited the country stated in its report that under such circumstances, the mission considered that it was very likely that the decisions of the Constitutional Chamber had placed Costa Rica in a situation where it was in breach of Convention No. 98 with regard to the right of collective bargaining in the public sector, since it only allows public servants engaged in the administration of the State to be excluded from its scope (Article 6). The mission drew these problems to the attention of the Committee of Experts. The complainant organizations indicate the danger that constitutional chambers of supreme courts do not apply the ILO Conventions.
11. 769. As indicated, the conspiracy by the Powers of the Costa Rican State repeats the anti-trade union conduct of failure to comply with the rights of free association and collective bargaining in Costa Rica, making use of state institutions which ignore acquired labour rights and which suppress clauses resulting from collective bargaining. There is now an attempt, through the Constitutional Court, to suppress several clauses of the collective agreement concluded between the trade union SITRARENA and the state institution, the National Registry.
12. 770. In summary, to negotiate in the public sector, an external body (the National Certification Commission) must issue a decision to start the process, and may bar certain clauses. Even though the Administrative Board authorized certain officials to negotiate, following the bargaining process it requested the elimination of some of the clauses which had been signed. Then the National Certification Commission mutilated the clauses and issued resolutions with clauses which were not those that had been negotiated. Furthermore, the Ombudsman’s Office and certain members of Congress filed an application in the Constitutional Chamber to delete clauses which had already been negotiated and approved.
13. B. The Government’s reply
14. 771. In its letters of 2 and 19 May 2005, the Government states that the allegations provide an inexact account of the facts and some are omitted. The assertion by the complainants concerning a supposed conspiracy between the Executive Power, the Legislature and the Judiciary to ignore trade union rights is totally alien to the truth. The Government refers in this regard to its replies in Cases Nos. 2030 (closed since 2001), 2084 and 2104 which show all the efforts made by the Executive Power, before the Legislative Power and the Judicial Power, in defence of freedom of association (the Government reproduces the relevant replies to the Committee on these cases and the various initiatives and actions before the Legislative Power and the Judicial Power).
15. 772. Recently, the Government received technical assistance from a member of the Committee of Experts, and in 2004, in the face of the divergence between national law and practice, and the ILO standards noted by the ILO supervisory organs, requested the establishment of a forum for dialogue between experts and officials of the ILO and the State, including the Ombudsman’s Office and the Office of the Attorney-General of the Republic, with a view to finding a solution compatible with the situation in Costa Rica and the principles of the basic Conventions relating to the right of collective bargaining of public servants not engaged in the administration of the State, a point on which the Government invokes the fact that there is an action in another case, as the same matter arises in Case No. 2104. In this connection, it should be noted that the necessary meetings have already taken place with deputies and judges, with a view to defending the right of collective bargaining in the public sector in both arenas. On the first place, some draft laws have been submitted and recommended for adoption including, among other things, approval of ILO Conventions Nos. 151 and 154 on the promotion of collective bargaining in the public sector; reform of article 192 of the Constitution the purpose of which is to legalize the right to conclude collective agreements in the public sector; the Public Sector Collective Bargaining Bill; and the elevation to the status of law of the current Decree No. 29576-MTSS, which regulates dispute settlement and collective bargaining for public servants, among other things. In addition, in response to the actions for unconstitutionality seeking the annulment of certain clauses in collective agreements, the Government has presented appropriate legal assistance in defence of the right of collective bargaining in the public sector, all of which has been duly reported to the Committee on Freedom of Association, in particular in the context of Case No. 2104. Thus, the Government has confidence in the outcome of the Dialogue Process promoted by the expert, Mr. Rodríguez Piñeiro, with the public authorities (Legislative Assembly, Judicial Power, Office of the Ombudsman, Office of the Attorney-General of the Republic), as well as the principal workers’ and employers’ organizations so that through exchange of information and experience the special situation in Costa Rica can be discussed, analysed and resolved, and a solution can be found that reflects the reality of Costa Rica and the principles that inspire the fundamental Conventions of the ILO.
16. 773. The Government reiterates that, notwithstanding the foregoing, collective bargaining has taken place unhindered throughout the public sector under Regulation No. 29576-MTSS of 31 May 2001 on collective bargaining in the public sector.
17. 774. The Government wishes to reiterate clearly that the institution of collective bargaining in the public sector is not in danger in Costa Rica. At the moment, what is being discussed is whether certain clauses which are considered an abuse by the Ombudsman’s Office and an opposition political party (which are taking legal action against certain clauses) should be declared void. What is being discussed now is whether the abuse of a right is permitted under the Constitution. This is the basic discussion and the Government remains hopeful of resolving it with technical assistance from the ILO, thanks to the recent visit by the abovementioned expert in line with the recommendations of the ILO’s supervisory organs.
18. 775. The Government also states, with reference to the allegations concerning 2002-04, that these were matters which occurred before the present Administration took office and there are no documents in its records relating to the negotiations on collective bargaining held in 2002. The Government indicates that in accordance with resolution No. 001-2000 of the National Commission for the Authorization and Ratification of Collective Bargaining in the Public Sector, of 21 November 2000, the Commission approved the collective agreement signed by the Trade Union of Workers of the National Registry (SITRARENA) and the National Registry. SITRARENA appealed against that resolution to the National Certification Commission, that appeal being decided by resolution No. 002-2002 of 4 April 2002. The Government does not know in what form the records of the collective bargaining in 2000 were signed. The term of that collective agreement was determined by the National Certification Commission mentioned above.
19. 776. As regards the allegations relating to the period 2002-04, the Government points out that the appointment of Mrs. Patricia Vega as Minister of Justice dates from 25 November 2002, so it is not certain that she personally received the denunciation of the collective agreement. Indeed, according to the information provided by the trade union itself in its complaint, and the relevant documents in the Ministry of Justice, the document in which the trade union requests a new collective bargaining round, the denunciation was delivered to José Miguel Villalobos, the then Minister, on 21 October 2002. This document was also sent to the Industrial Relations Office in the Ministry of Labour, with a view to starting the process of renegotiating the clauses which had been denounced, on the same date as indicated above. Prior to the appointment of Mrs. Vega, the Administrative Board of the National Registry had made the preliminary arrangements and had appointed its negotiators in the Bargaining Committee so that the bargaining process could begin as soon as it had been authorized by the Commission on Public Sector Collective Bargaining Policy. In this regard, the Government provided Decision No. J0409 of the Administrative Board of the National Registry, of 20 September 2002, which lists the appointments. In accordance with the guidelines laid down in Decree No. 29576-MTSS, (Regulations on public sector collective bargaining), when denunciation of a collective agreement is filed and negotiation of a new agreement is proposed, it is an essential requirement for the Administration that the Commission on Public Sector Collective Bargaining Policy undertakes a preliminary analysis of the proposals and authorizes the employers’ representatives to negotiate the proposed clauses. On this point, article 13 of the decree in question states:
20. Article 13. The following are powers and duties of the Commission:
21. (a) To receive the request for negotiation together with the draft collective agreement, an opinion of the interested organization on its content and scope, and nomination of a senior representative who shall be a member of the Commission. This must all be done within fifteen days.
22. (b) To define negotiating policies in the specific case, taking into account the legal and budgetary possibilities. To this end, it shall issue relevant directives to the negotiators nominated by the interested organization through its representative on the Commission. This must all be done within one month from the receipt of the request for negotiation.
23. (c) To maintain the necessary contact with the employers’ bargaining team during the negotiations, to ensure the decisions necessary for the continuity and finalization of the process in accordance with the law …
24. 777. This Commission is thus a body which issues directives to the Administration which is to engage in collective bargaining. Of course, in no way can this situation be interpreted as a limitation on the actions of the trade union. Quite the contrary, Decree No. 29576-MTSS establishes a procedure which fast-tracks and facilitates the taking of decisions within the Administration, taking into consideration aspects ranging from the legality of the proposed bargaining points to the appropriateness and relevance of adopting certain decisions, indicating to the negotiating administration what it can negotiate and what not. On this point, the international Conventions establish general rules for the conduct of bargaining between employers and trade unions, but nowhere do they oblige the employer to accept and negotiate each of the trade union’s demands on its own terms, since that would be tantamount to saying that between workers and employers, there is no negotiation but only imposition by one of the parties, which is totally alien to the spirit of collective bargaining and the international instruments.
25. 778. In the framework of the decree under discussion, the document proposed for negotiation was submitted to the Commission on Public Sector Collective Bargaining Policy so that, in accordance with its powers, it could indicate to the National Registry the specific guidelines and directives for the pending bargaining round.
26. 779. At the same time, given the change of Minister of Justice, the Administrative Board of the National Registry substituted the employers’ representatives in the collective bargaining round, under Decision No. J.020 in its regular session No. 2-2002 of 16 January 2003. The Commission on Public Sector Collective Bargaining Policy issued the directives to be followed by the public administration in decision No. 007-2003 of 1 July 2003. In the light of the above, the Minister of Justice called on the trade union to proceed with the collective bargaining process, inviting it to the first session on 8 July 2003, in letter DM-1231-06-2003, dated 1 July 2003. Thus it is not true that the Minister of Justice refused to allow the collective bargaining, since it was at the initiative of her office that the bargaining round began. Nor is it true that the trade union was forced to resort to a protest action or strike to force her office to open discussions since, as has been shown, the bargaining process was initiated well before the date indicated by the trade union.
27. 780. Article 11 of the Constitution states:
28. Civil servants are merely trustees of authority. They are under an obligation to fulfil the duties required of them by law and may not assume powers unto themselves that are not contained in the law. They must swear to observe and uphold the Constitution and laws. The public administration in the broad sense shall be subject to evaluation of performance and accountability, with the consequent personal responsibility of civil servants in the performance of their duties. The law shall lay down means to ensure that control of performance and accountability operates as a system that covers all public institutions.
29. In this regard, and by the legal nature of the National Register as a public sector body, the above regulation establishes a series of procedures according to which the State must act in the case of collective bargaining.
30. 781. It should be noted that nowhere does the above regulation set restrictions on trade unions other than those derived from the Constitution and the law, such as demonstrating their proper representativeness to negotiate a collective agreement. On the contrary, as can be seen from the text quoted above, the regulation seeks to express the will of the administration to negotiate, which must of necessity be expressed by the state bodies which have the legal authority to do so.
31. 782. This aspect is set out in article 12 of the Regulations which establishes the composition of the Policy Commission as follows:
32. Article 12. A Commission on Public Sector Collective Bargaining Policy shall be established, composed of:
33. (a) The Minister of Labour and Social Security or the Vice-Minister, presiding.
34. (b) The Minister of the Treasury or the Vice-Minister.
35. (c) The Minister of the Presidency or the Vice-Minister.
36. (d) The Director General of the Civil Service or his temporary substitute in the office.
37. (e) A representative at senior level of the entity which is to negotiate the collective agreement.
38. 783. The participation of each of these bodies reflects the different responsibilities exercised within the action of the State. For example, the presence of the Minister or Vice-Minister of the Treasury is intended to ensure, prior to negotiation with the trade unions, that there is sufficient budgetary provision to meet the costs implications of the bargaining process. This, of course, is an internal consideration to guide the action of the administration, but in no way affects the action of the trade union.
39. 784. It is not true, therefore, that SITRARENA had to take industrial action to force the Public Policy Commission to pronounce itself on the request for negotiation and to overturn the directives to the National Registry. The industrial action to which the members of SITRARENA refer occurred on 16 September 2003, by which time the bargaining arrangements were already in hand in the National Registry. Moreover, the industrial action did not relate to the start of collective bargaining but the payment of bonuses which were included in the collective bargaining process which had already begun. It should be clarified that although the clauses in question were included for information in the collective bargaining round, they had not yet been discussed at the time of the industrial action, because from the start of the bargaining round in July 2003, both sides, employers and trade unions, had agreed that the clauses proposed by the trade union would be negotiated in the same order as they had been presented. In this respect, the clauses which contained the benefits in question were clauses 88 and 89 of the text proposed by the trade union, and had thus not been addressed in September 2003.
40. 785. The Commission on Public Sector Collective Bargaining Policy issues directives on the form in which collective agreements should be negotiated and therefore the assertion of SITRARENA that the Commission is an external body must be totally refuted, since, under the principle of legality explained above, the State has a segregation of powers and functions which must be respected at all times. Thus, it is not true that the Commission is an external body, since, as has been shown, it is composed of the competent state bodies with power to take legal decisions under the Costa Rican system.
41. 786. The Government reiterates that bargaining does not consist of imposing on either of the parties the obligation to negotiate the clauses as presented. If one of the parties cannot negotiate certain matters because they are outside the law, the other cannot force it to agree to do so. Despite this, it seems that the trade union is forgetting this spirit and claims, for example, that the Administration should negotiate clauses which are clearly illegal, such as, for example, using a plot of land belonging to the Ministry of Justice which was purchased with public funds to build a leisure centre for trade union employees. The Costa Rican State cannot allocate pubic funds for purposes other than those established or designated by law (in Costa Rica this can only be done through a law and not a collective agreement). The Government is faced with an impossibility in terms of public priorities. Indeed, the Government has assumed a series of obligations relating to human rights for prisoners, obligations which by their importance and their character of basic subsistence needs, rank higher in the interests of the State.
42. 787. This is just one example of the clauses which the Government disagreed with in the bargaining process from the outset. They are clearly aspects which do not directly or indirectly affect the trade union rights of SITRARENA, much less its members. It is a normal assessment which any employer, at the start of a collective bargaining process, must make of its interests and needs.
43. 788. The Government also states that it is not true that the Minister of Justice refused to negotiate the case of wage differentials between registrars and certifying officers.
44. 789. From the start of the current round, on her own initiative, and without the need for intervention by SITRARENA, the Minister of Justice took steps to determine the situation in the matter of wage differentials between registrars and certifying officers.
45. 790. This was because the wage differentials between the various grades of registrars and certifying officers based on their different academic qualifications had been a matter for debate for many years. Thus, the system of wage grades in the Cost Rican Civil Service included a wage differential based on employees’ academic qualifications, with higher remuneration for higher levels of education.
46. 791. This situation led to inconsistency among workers in the National Registry who indicated that, although there was a marked academic differentiation between one level and another, there being workers who have not completed secondary school alongside others who have finished university, the wage must be the same because the work they perform is similar.
47. 792. These inconsistencies were submitted to the courts, when a large group of workers in the National Registry lodged an industrial claim to force the State to establish equality of basic wages for registrars and certifying officers, irrespective of their vocational training.
48. 793. Against this background and to allow her to take the appropriate decisions, the Minister of Justice held a series of meetings to analyse the legality of what the trade union was requesting in the collective bargaining, and she sought the advice of the Directorate-General of the Civil Service, the department which legally analyses and classifies posts in the Civil Service, to which National Registry workers belong.
49. 794. In this connection, on 12 August 2003, the Head of the National Registry sent a request to the Director of the Civil Service asking him to indicate the procedure to be followed in that case. That was because under articles 191 and 192 of the Constitution, state employees’ wages were a matter for a special body, the Civil Service.
50. 795. In the light of the foregoing, the Minister of Justice could not negotiate on wages because she did not have authority to set wages for workers in the Civil Service. In the light of this, internal negotiations were initiated with the competent department to find a legal solution to satisfy, to the extent possible, the workers’ claims. As a result of the investigation, the Director-General of the Civil Service, in Memorandum No. DG-459-2003 of 1 September 2003, expressed his agreement to seek mechanisms to allow the trade union proposal to be examined, proposing a channel of communication between the Ministry of Justice and the Civil Service to undertake the necessary official studies. Despite the foregoing, the Directorate-General of the Civil Service made the study subject to there not being any pending proceedings on this point in the courts, on the basis that the Civil Service would have to await a court decision since it could not decide on a matter of litigation. In the light of the reply of the Director of the Civil Service, the Attorney-General of the Republic was consulted as to whether there were any pending proceedings on the matters to be examined. The Attorney-General stated that there were proceedings pending in the courts on this matter, namely an ordinary employment action by Eduardo Alvarado Miranda and others against the State, an action which was mentioned at the beginning of this section. As can be seen from the above, all these actions occurred prior to the industrial action of 16 September 2003, thus it is reiterated that it is not true that there was no wish to negotiate clause 89 of the draft collective agreement.
51. 796. One of the goals of the industrial action of 16 September 2003 was that: “The basic wage of all classes of posts in the National Registry at different levels should be the same as the highest basic wage for the respective grade, such that any employee in the National Registry who performs the same tasks or functions as another employee receives the same basic wage, albeit without prejudice to any additions or bonuses in respect of each employee’s personal academic qualifications.” There was no request in that document to open collective bargaining since, as indicated above, that had already commenced and the bargaining committee made up of the trade union and the employers’ representatives had been meeting regularly every Tuesday since 8 July. The document that led to the lifting of the industrial action of 16 September clearly established the circumstances in which both parties, workers and Ministry of Justice, were to negotiate the clause in article 89 on wage differentials.
52. 797. That document stated expressly:
53. The workers’ representatives undertake to withdraw the pending legal actions relating to basic wages of registrars and certifying officers. For her part, the Minister undertakes to take steps to ensure that the Civil Service, within two months from today, carries out a technical study into the matter. This study shall be prepared as a draft which will not be published until the legal actions concerned have been withdrawn. As soon as the study has been completed and the legal actions withdrawn, article 89 of the draft collective agreement will be negotiated.
54. 798. The Minister of Justice sent the request for the study to the Civil Service as she had undertaken to do. Despite that, the workers who had commenced legal actions did not wish to withdraw them, for which reason, as of today, legal proceedings on this matter are ongoing. In this respect, the Government sends Decision No. 498 of the Employment Court, against which the workers lodged an appeal in the Second Chamber of the Supreme Court of Justice. The Government also sends the reply of the Office of the Attorney-General of the Republic in the hearing of the appeal in the Second Chamber.
55. 799. As can be seen from the court proceedings, the State has not taken any action to extend or delay a judicial decision on the matter which would facilitate the negotiation of clause 89. On the contrary, it was the workers who decided to continue with the court action, a decision which the Government has always respected. The Government points out that after several months of bargaining, the process was concluded without any negotiation of clause 89 under the agreement reached on 16 September 2003. Despite that, on 29 July 2004, SITRARENA issued a new call to industrial action in support of a request to negotiate clause 89, despite the fact that it was the workers’ representatives who had failed to comply with the agreement adopted on 16 September 2003.
56. 800. On 30 July 2004, a document headed “Undertakings of the Bargaining Table” was signed, in which it was agreed to restart the dialogue on the much mentioned clause 89. In the course of over a month of bargaining, a clause was arrived at which largely met the concerns of both sides. All that remained was to define the final sentence relating to the legal and constitutional authority assigned to the Civil Service Directorate as discussed above. Although the legal procedure requires wage matters in public employment to be dealt with by the Civil Service Directorate, the trade union objected to the document, which had achieved consensus on the substance, being transmitted to the competent department. With this clause almost finished, the bargaining committee met again and reached a proposed consensus. The proposal was that due to the restriction on the representation allowed to the employer members, it should be accepted by the Administrative Board of the Registry in order that it should be finally accepted by the employers’ representatives. The clause stated:
57. Agreement No. 1
58. The basic wage, grade and group of officials of the National Registry who perform the same functions and assume the same responsibilities of a civil, penal and administrative character shall be as follows:
59. Assistant registrar grade: in this grade there will only be an assistant registrar which will include the current groups A, B and C.
60. Technical assistant grade: in this grade there will only be a technical assistant which will include the current groups A and B.
61. Technical certifying officer grade: in this grade there will only be a technical certifying officer which will include the current groups A and B.
62. The grade of Graduate Certifying Officer will remain.
63. The highest basic wage will be maintained for the foregoing grades.
64. For registry work: There will be two grades of post: Registrar 1, which will include the current groups A and B, and Registrar 2, which will be differentiated technically and the wage gap between the grades will be the smallest in the National Registry wage scale under the present system, maintaining the basic wage of Registrar C for the grade of Registrar 2.
65. The above is without prejudice to any incentives or bonuses for academic qualifications held by different levels or groups in the respective grades.
66. Following its approval, the Civil Service will undertake an examination of the negotiated parts of this article, in so far as these fall within its purview.
67. 801. The Administrative Board of the National Registry approved the negotiated clause recommending an editorial change to the end of the last paragraph which provided certainty and made the wording clearer. The clause recommended by the Administrative Board read as follows:
68. The basic wage, grade and group of officials of the National Registry who perform the same functions and assume the same responsibilities of a civil, penal and administrative character shall be as follows:
69. Assistant registrar grade: in this grade there will only be an assistant registrar which will include the current groups A, B and C.
70. Technical assistant grade: in this grade there will only be a technical assistant which will include the current groups A and B.
71. Technical certifying officer grade: in this grade there will only be a technical certifying officer which will include the current groups A and B.
72. The grade of Graduate Certifying Officer will remain.
73. The highest basic wage will be maintained for the foregoing grades.
74. For registry work: There will be two grades of post: Registrar 1, which will include the current groups A and B, and Registrar 2, which will be differentiated technically and the wage gap between the grades will be the smallest in the National Registry wage scale under the present system, maintaining the basic wage of Registrar C for the grade of Registrar 2.
75. The above is without prejudice to any incentives or bonuses for academic qualifications held by different levels or groups in the respective grades.
76. Following its approval, the Civil Service will undertake an examination of the negotiated parts of this article, in so far as these fall within its purview, in accordance with the provisions of article 13 of the Civil Service Statute.
77. 802. As can be seen from both agreements, the change proposed in the text is not an amendment of the substance, but simply makes direct reference to a legal provision which must be observed even when it is not expressly stated, since otherwise there could be a violation of article 56 of the Corruption and Unlawful Enrichment in the Civil Service Act, Law No. 8422, which states specifically that:
78. A civil servant who, representing the Public Administration and in its name, grants or allows benefits in the course of his duties, in violation of the applicable legislation, shall be sentenced to a prison term of three months to two years.
79. 803. It should be recalled that the staff of the National Registry are civil servants, whose actions are strictly regulated by the principle of legality, and the funds with which they negotiate are public funds which by their nature are also closely controlled as to the manner in which they are used.
80. 804. With the agreement of the Administrative Board of the National Registry, the Vice-Minister of Justice informed the trade union on 17 November 2004 that the collective bargaining stage was over, and invited them to the formal signing of the document. The trade union was also asked to provide a copy of the approval by the General Assembly of the Trade Union of Workers in the National Registry of the negotiated text, so as to conclude the final document. However, despite the concern of the Ministry of Justice to bring the process to a close, the trade union, as of today, has still not provided the approval of the General Assembly of SITRARENA of the text negotiated by its representatives, although the Administration does have the approval of its Administrative Board on the negotiated text.
81. 805. According to the SITRARENA newsletter of 3 March 2005, a General Assembly was being convened to consider the matter on 4 March 2005, but it is not known what happened.
82. 806. The foregoing shows that it is not true that the Ministry of Justice categorically refused to negotiate clause 89, since the delays in the matter are due to the failure of the trade union to fulfil its obligations under the agreement and the failure of the supreme organ of the trade union, its General Assembly, to approve the document negotiated by the bargaining committee.
83. 807. As regards the fact that the Libertarian Party is challenging some of the clauses of the collective agreement in the Costa Rican Constitutional Court (Constitutional Chamber), the Government points out that in Costa Rica, the democratic system which has been established allows those concerned to question administrative acts by civil servants and that collective agreements, being acts in which civil servants are involved as civil servants on behalf of the State, are capable of being reviewed in the courts when any individual considers that they violate Costa Rican law.
84. 808. This does not mean, of course, that it is sought to violate the right of collective bargaining of trade union members. As indicated, the review reflects the necessary compliance with the principle of legality which governs the administrative system and which, as the Constitution indicates, makes the acts of civil servants subject to review in order to evaluate the action of those civil servants.
85. 809. In the specific case to which the trade union refers, the Libertarian Party, a political party legally constituted in accordance with Costa Rican legislation, challenged certain clauses of the collective agreement because it considered them to be contrary to the principles of equality, rationality, reasonableness and proportionality enshrined in the Constitution. Despite what was claimed, it is not true that there is a “conspiracy” between the other Powers of the Republic against SITRARENA. Moreover, the Director General of the National Registry argued strongly in the hearing granted him by the Constitutional Chamber relating to the action that the Constitutional Court should “declare the action for unconstitutionality inadmissible, since the violations of the law in question concerned direct and individual injury and were not a matter of general public interest. If the Constitutional Chamber decided that the action was admissible, he requested that it should be declared void in all its aspects, based on the arguments expressed”. The National Registry thus defended the collective agreement at national level, so it is not true that there is a “conspiracy” against the trade union.
86. 810. As regards the hypothetical appeal by deputies of the Libertarian Party relating to the collective bargaining that began in November 2002, the allegation by the trade union is not clear, since it merely indicates or suggests that there were decisions of the Constitutional Court, without indicating clearly which resolutions or cases it considered to be directly relevant to it. Given this lack of clarity, the trade union’s argument can be considered to be merely speculative, since there has been no decision of the Constitutional Chamber. Moreover, it is not correct to accuse the Government of unlawful actions on the basis of speculation and considerations by the trade union not supported by actual facts and simply insinuated without providing the relevant evidence.
87. 811. Costa Rica is a country which respects the international conventions of international organizations to which it is a party. In this regard, it should be noted that article 7 of the Constitution places such international instruments ahead of laws. Article 7 of the Constitution states that: “Public treaties, international conventions and agreements duly approved by the Legislative Assembly shall from the date of their promulgation or the date designated therein take precedence over laws … .” In addition, the Constitutional Chamber, in its case law, recognizes the importance of international instruments, when it states that, “as recognised in the case law of this Chamber, human rights instruments in force in Costa Rica not only have equivalent status to the Constitution, but to the extent that they grant greater rights or guarantees to persons, they take precedence over the Constitution” (Constitutional Chamber, Decision No. 2313-1995). In the light of the above, the fear claimed by the trade union members is incomprehensible, given that national legislation is clear on the status and importance of international treaties, a status recognized by the Constitutional Court.

C. The Committee’s conclusions

1. 812. The Committee observes that in the present case, the allegations of the complainant organizations refer to subjection of the agreements on conditions of work and employment in the public sector to the directives of an external body (the National Certification Commission), excessive delays in the collective bargaining process attributable to the authorities; amendment of the agreed clauses by the National Certification Commission; proceedings for unconstitutionality in the courts instigated by the Libertarian Party and the Ombudsman against the agreements concluded between the parties. The trade union organizations consider that there is a kind of conspiracy involving the three Powers of the State against the rights of freedom of association and collective bargaining.
2. 813. The Committee notes the Government’s statements and observes that it invokes the pending cases, to the extent that the question of collective bargaining in the public sector was addressed in Cases Nos. 2030 and 2104, currently before the Committee. The Committee will take this statement into account but some allegations are new or show that certain problems previously indicated by the Committee persist. In this respect, the Committee observes that indeed the complainant organizations refer to the Committee’s conclusions in Case No. 2030 formulated in March 2000 on the process of collective bargaining in the National Registry begun in 1997 under the regulations on collective bargaining for civil servants (Governing Council Decision No. 162), conclusions in which the Committee had criticized the approval of collective agreements by the Commission on Public Sector Certification [see 320th Report, paras. 593-597]. The complainant organizations also refer in the present case to the collective bargaining round in 2000 in the National Registry when, according to the allegations, the said National Certification Commission instituted by agreement No. 162 altered the result of the collective bargaining, and the judicial proceedings delayed the application of the text thus approved so that it was only in effect for five months. The Government indicates in this regard that the allegations concerning the collective bargaining in 2000 occurred before the present Administration took office, and that there were no documents in its records relating to that bargaining round and the Government did not know in what form the record of the collective bargaining was signed. In these circumstances, since the Government has not denied the allegations, the Committee regrets that the National Certification Commission altered the result of the collective bargaining in 2000 and that the delay in proceedings relating to the appeals filed by the trade union meant that the approved text was only in effect for five months, but observes that the said National Certification Commission ceased to exist as a result of the new collective bargaining system in the public sector (Executive Decree No. 29576 MTSS of 15 June 2001), which the Committee welcomes. The allegations relating to the collective bargaining begun in 2002 will be examined later, but the Committee will first consider certain questions of a general character.
3. 814. The Committee notes that the Government denies the allegation that there is a conspiracy by the Powers of the State against freedom of association and collective bargaining. The complainant organizations refer expressly to the conclusions of an ILO technical assistance mission in 2001 which questioned the situation of collective bargaining in the public sector on the basis of certain restrictive judgements of the Constitutional Chamber of the Supreme Court of Justice in relation to civil servants, and the very common practice of the Ombudsman and deputies of the Libertarian Party of filing actions for unconstitutionality against clauses in collective agreements in the public sector, for example on matters such as trade union leave, holidays, training leave, etc. from the point of view of the principles of equality, rationality, reasonableness and proportionality under the Constitution. The Committee notes that the Government refers to a series of bills (reform of legislation and the Constitution, ratification of Conventions Nos. 151 and 154) at the initiative of the Judicial Power and in the framework of judicial proceedings (appropriate assistance to defend the right of collective bargaining against actions for unconstitutionality) and the results of a technical assistance mission (“dialogue process”) recently undertaken by a member of the Committee of Experts relating to the right of collective bargaining in the public sector. The Committee notes the Government’s statement that under the new regulation No. 29576-MTSS of 31 May 2001 collective bargaining took place unhindered throughout the public sector, and that what is currently being discussed is whether certain clauses that the Ombudsman’s Office and a political party consider to be an abuse should be declared void, a discussion which the Government hopes to resolve following the recent technical assistance mission by a member of the Committee of Experts.
4. 815. The Committee concludes that, in the light of the foregoing, although there is no conspiracy by the Powers of the State against collective bargaining, the result of the many government initiatives (presentation of bills, initiatives to ratify Conventions Nos. 151 and 154, initiatives in the courts, assistance in judicial proceedings, etc.) shows that the Government’s efforts, which it has been deploying for two years, have not materialized in laws of the Congress of the Republic. New regulations on collective bargaining in the public sector are based on a mere executive decree of 2001, subsequent to decisions of the Supreme Court of Justice which questioned the right of collective bargaining of civil servants. Thus, the present situation is somewhat confused and needs to be clarified. Additional guarantees are also required to avoid the more or less systematic use of the recourse of unconstitutionality against collective agreements in the public sector by the Ombudsman’s Office and the Libertarian Party. The Committee notes that the Government qualifies as possible speculation and hypothetical any actions for unconstitutionality by the Libertarian Party against the last collective agreement in the National Registry to which the complainant organizations refer. The Committee observes, however, that the complainant organizations have sent as an annex an action for unconstitutionality by the Libertarian Party dated 19 March 2004 against the SITRARENA collective agreement. The Committee will continue to address these questions in the framework of its examination of case No. 2104.
5. 816. With regard to the collective bargaining begun in 2002 in the National Registry, the Committee notes the allegations of the complainant organizations that: (1) the bargaining process had not been concluded on the date of the submission of the complaint (24 July 2004), firstly, because the National Certification Commission (“Commission on Public Sector Collective Bargaining Policy” according to the Government’s terminology and the 2001 Regulations) took over six months to decide on the clauses which could be negotiated and that the bargaining process only began after the strike on 16 September 2003; (2) the employers’ representatives refused to negotiate clauses which had not been authorized by the said Commission (consisting of ministers and their representatives and other authorities) or other clauses authorized, e.g. clause 89 on equality of basic wages for civil servants who perform the same task for the same remuneration; in the latter case the Minister of Justice consulted the Director of the Civil Service (despite the fact that he was a member of the said Commission) on whether the clause could be considered; subsequently, the Minister’s subordinates indicated that as there was an action pending, it could not be negotiated; (3) through the Constitutional Chamber (at the instigation of the Office of the Ombudsman and the Libertarian Party) it was sought to suppress various clauses of the collective agreement in the National Registry.
6. 817. The Committee notes the Government’s extensive statements concerning the allegations relating to the collective bargaining begun in 2002 in the National Registry and in particular that:
7. (1) the Minister of Justice did not refuse to negotiate and the trade union did not need to strike or exert pressure to force the Minister to open discussions; on 21 October 2002, the trade union requested a new collective bargaining round and prior to that the Minister of Justice had appointed negotiators on behalf of the National Registry for the purpose of negotiating as soon as the Commission on Public Sector Collective Bargaining Policy issued the relevant instructions or guidelines;
8. (2) on 16 January 2003, the Minister of Justice changed and the new Minister substituted the employers’ representatives; on 1 July 2003, the Policy Commission issued negotiating directives, and on 8 July 2003 the new Minister called on the trade union to continue the collective bargaining process, with the parties meeting every Tuesday;
9. (3) the industrial action on 16 September was therefore not for the purpose of starting the collective bargaining as the complainants allege, but payment of bonuses (clauses 88 and 89 of the list of claims, which had not been negotiated because the clauses were to be negotiated in the same order as they had been presented); the clause on equality of wages for registrars and certifying officers (clause 89) was a question which the workers had submitted to the courts and the Minister of Justice decided to consult the Directorate-General of the Civil Service seeking to find a legal solution to the workers’ claims; only after that did the industrial action take place (16 September 2003) following which the parties signed a document whereby the industrial action would be lifted and the workers would withdraw the pending legal proceedings (which they never did) and the negotiation of clause 89 would take place after a technical review by the Civil Service. The Committee notes that according to the Government’s statements, the bargaining process ended months later, apart from the negotiation of the agreement (the document) adopted on 16 September 2003 relating to clause 89 which continued to be the subject of negotiations given the legal implications of this matter for the employer’s side, until a proposed consensus was finally reached to be submitted to the Administrative Board of the National Registry. The Board approved the clause recommending an editorial change. On 17 November 2004, the trade union was invited to sign the document and to provide a copy of the approval thereof by the General Assembly of the trade union. However, that approval was never sent.
10. 818. In these circumstances, the Committee concludes that the Minister of Justice did not refuse to negotiate and finds that the bargaining began before the strike of 16 September 2003. The Committee observes that the denunciation of the previous collective agreement and the submission of the bargaining claim occurred on 21 October 2002, that the employer’s side appointed negotiators in anticipation of the future collective bargaining, that on 16 January 2003 the new Minister of Justice appointed new negotiators, that the Commission on Public Sector Collective Bargaining Policy established in the executive decree of 2001 issued directives for the negotiations on 1 July 2003, that on 8 July 2003, the Minister convened the parties to continue the process and that according to the Government, the trade union was informed on 17 November 2004 that the bargaining process was concluded and invited the trade union to the formal signing. The Committee regrets that the opening of discussions between the parties was delayed by seven months from the submission of the list of claims due to the delay by the Policy Commission in issuing the bargaining directives and requests the Government to take measures to ensure that the said body issues its directives in a reasonable time. The Committee wishes to point out that there can be no objection to the intervention by this government body through “directives” to the negotiators on the employers’ side provided that its purpose, as stated by the Government, is to comply with budgetary rules and the principle of legality, and to the extent that collective bargaining in the public administration may be subject to special arrangements. Unlike the former National Certification Commission, the Policy Commission gives instructions and directives to the negotiators on the employers’ side but does not approve the agreements. However, the Committee observes that it is apparent from the documentation sent by the complainant organizations and the Government that the Commission on Bargaining Policy did not authorize a large number of draft clauses presented by the trade union for the purposes of negotiation, invoking the principle of legality. The Committee requests the Government to indicate whether the decisions of the Commission on Bargaining Policy can be appealed to the judicial authority or to an independent body.
11. 819. As regards the delay in the collective bargaining process due to the different positions of the parties on clause 89, the Committee observes that the trade union was entitled to hold a strike in support of its claims and that there were in fact effective negotiations on the question, thus there is no reason to criticize either party. However, given that the collective bargaining process lasted some two years according to the Government’s statements, the Committee suggests that it should seek ILO technical assistance to accelerate the dispute settlement mechanisms for collective bargaining in the public sector, in particular bearing in mind that according to the Government’s statements, the result of the collective bargaining did not come into effect (the trade union did not sign the final relevant document sent by the Ministry of Justice).
12. 820. The Committee requests the Government to send it full information on the possible signing of the document sent by the Ministry of Justice to the trade union and invites the complainant organizations to explain the reasons why the trade union has not yet signed it.

The Committee's recommendations

1. 821. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Observing that the new collective bargaining regulations in the public sector are based on a mere executive decree in 2001, subsequent to decisions of the Supreme Court of Justice which questioned the right of collective bargaining of civil servants, so that the present situation is somewhat confused and needs to be clarified, and considering that additional guarantees are also required to avoid the more or less systematic use of the recourse of unconstitutionality against collective agreements in the public sector by the Ombudsman’s Office and the Libertarian Party, the Committee will continue to address these questions in the framework of its examination of Case No. 2104.
   • (b) The Committee regrets that the opening of discussions between the parties was delayed by seven months from the submission of the list of claims in October 2002 due to the delay by the Commission on Bargaining Policy in issuing the bargaining directives and requests the Government to take measures to ensure that the said body issues its directives in a reasonable time.
   • (c) The Committee observes that it is apparent from the documentation sent by the complainant organizations and the Government that the Commission on Bargaining Policy did not authorize a large number of draft clauses presented by the trade union for the purposes of negotiation, invoking the principle of legality. The Committee requests the Government to indicate whether the decisions of the Commission on Bargaining Policy can be appealed to the judicial authority or to an independent body.
   • (d) The Committee suggests that the Government should seek ILO technical assistance to accelerate the dispute settlement mechanisms for collective bargaining in the public sector.
   • (e) The Committee requests the Government to send it full information on the possible signing of the document sent by the Ministry of Justice to the trade union and invites the complainant organizations to explain the reasons why the trade union has not yet signed it.