Interim Report - Report No 348, November 2007

Case No 2490 (Costa Rica) - Complaint date: 23-MAY-06 - Closed

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INTRODUCTION
A. The complainants’ allegations
C. The Committee’s conclusions
The Committee's recommendations

Allegations: Violations of the right to bargain collectively in the public sector and other anti-union practices

402. The complaint is set out in a joint communication by the abovementioned trade unions dated 23 May 2006. These organizations sent further information in a communication dated 12 December 2006 and made new allegations in a communication dated 9 February 2007. The International Trade Union Confederation (ITUC) associated itself with this complaint in a communication dated 22 February 2007.

403. The Juanito Mora Porras Social Confederation (CS-JMP) signed the complaint dated 23 May 2006 and submitted new allegations in a communication dated 13 July 2006. The Government sent its comments in this regard in communications dated 16 August and 21 December 2006, challenging the receivability of communications from this movement, contending that it was not a registered trade union and was unrepresentative, among other matters. The Office forwarded these comments to the CS-JMP for its observations. Given that they have yet to be received, the Committee does not include the allegations made by the CS-JMP in this report and will only consider them once it is able to take a decision on the receivability of the complaint.
404. The Government sent its comments in communications dated 16 August and 21 December 2006 and 14 May, 9 August and 5 October 2007.
405. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

406. In their communications dated 23 May and 12 December 2006, the Rerum Novarum Confederation of Workers (CTRN), the Trade Union Movement of Costa Rican Workers (CMTC), the Costa Rican Confederation of Democratic Workers Rerum Novarum (CCTD-RN) and the General Workers’ Confederation (CGT) allege that in spite of the conclusions of the Committee on Freedom of Association, the comments by the Committee of Experts and the reports of various direct contacts and technical assistance missions, the Constitutional Chamber of the Supreme Court, on the basis of cases brought by a political party or the Ombudsperson, has continued to rule that various clauses in collective agreements containing financial and social benefits for employees of public institutions and enterprises are unconstitutional. The Constitutional Chamber has held that the clauses run counter to the principle of equality, thus ignoring the right to bargain collectively regarding better working conditions than those provided for in law or employment contracts, the significant decline in purchasing power over the last 16 years and the rights of union stewards, such as their right to collectively negotiate trade union leave, whether paid or unpaid. The complainant organizations state that in 2003, various actions of unconstitutionality were filed with the Constitutional Chamber of the Supreme Court against clauses in the agreements signed between the National Power and Light Company, the National Insurance Institute, the People’s Savings and Community Development Bank and the National Production Council and their respective unions.
407. It was alleged that all the abovementioned collective agreements were unconstitutional because, according to the critics of freedom of association and collective bargaining, the rights attained by workers in these collective instruments were disproportionate, unreasonable and ran counter to the principle of equality.
408. The clauses challenged before the Constitutional Chamber in the various collective instruments are:
n Collective Agreement between the Industrial Union of Electrical and Telecommunications Workers (SITET) and the National Power and Light Company
Chapter II (Entry conditions)
Article 10: Applicants must complete the job application form, duly noting if they have had previous employment, all the places in which they have worked and their duties therein, and, in addition to the skills required for the post, must possess the academic qualifications stipulated in the Job Description Manual. The children of employees who pass away, from whom they receive a pension, shall have preference over other candidates on equal terms, except, where age is concerned if they are the head of the household and are at least 16 years of age, thereby complying with the provisions of article 91 of the Labour Code, as far as eight-hour working days are concerned. Furthermore, relatives of workers employed by the Company for a minimum of ten years shall have the same right, provided that no other relative up to the third degree of consanguinity or affinity is employed by the Company, even in a separate workplace.
In normal situations, the minimum age for joining the Company shall be 18 years, with the exception of graduates of the National Training Institute and vocational colleges, who may join after graduating from their courses with their respective diplomas, provided that they are aged 16 years.
In future, persons in other full-time employment with ordinary working hours and retired persons shall not be able to take a post with normal working hours within the Company.
The Company shall not accept foreigners unless there is a shortage of Costa Rican nationals.
Students and graduates of the National Training Institute and vocational or technical colleges shall also be subject to the appropriate legal provisions.
The text highlighted in bold was struck out from this article by the Constitutional Chamber.
Chapter XVI (Special benefits)
Article 108: If a worker should die, his or her spouse shall continue to enjoy the benefit of paying 50 per cent of their home’s electrical tariff, subject to renewal of this benefit every two years.
This article was struck out in its entirety in the Constitutional Chamber’s ruling.
Chapter XVIII (Complementary retirement)
Article 123: The Company agrees to provide a guarantee, in the event that the Union obtains a loan in order to finance borrowing to provide housing for Company staff.
The Company and the Union agree that a worker’s wages shall be reduced by the total necessary to pay off the worker’s debt from their loan. They also agree that the Company shall use these deductions to directly provide the lending institution with the amount deducted as payment of the debt.
This article was struck out in its entirety in the Constitutional Chamber’s ruling.
n Collective Agreement between the National Insurance Institute Staff Union (UPINS) and the National Insurance Institute (INS)
Article 17: Workers shall be entitled to partial compensation for their holiday periods pursuant to the following rules:
(a) For each annual holiday period, workers shall enjoy no less than 15 uncompensated working days and may request compensation of the remainder in part or in whole.
(b) Holiday compensation shall be calculated using the following formula: (weekly wages + average supplemental payments + total of deferred life insurance policy / 5 x number of days to be compensated).
Holiday compensation shall be paid with the weekly wages being drawn by the worker. The adjustment for supplemental payments indicated in part (b) of this article shall be made in December of each year, taking the calculation period to be from 1 December of the previous year to 30 November of the following year.
This article was struck out in its entirety, in spite of the fact that the Labour Code permits compensation, although the text is drafted differently.
Chapter XVI (Legal benefits)
Article 161 (currently 160):
(a) Severance pay following dismissal without just cause
Both the Institute and the worker may terminate an employment contract without just cause but must always give notification of this decision in writing pursuant to the following rules:
(1) After continuous employment lasting between three and six months: with a minimum of one week’s notice.
(2) After continuous employment lasting between six months and one year: with a minimum of 15 days’ notice.
(3) After one year’s continuous employment: with a minimum of one month’s notice.
Written notification may be waived provided that the other party affected has received the monetary payment corresponding to the period of time set forth in the abovementioned rules.
In those cases, the worker shall be entitled to severance pay in accordance with the following rules:
(i) After continuous employment lasting between three and six months: an amount equivalent to ten days’ wages.
(ii) After continuous employment lasting between six months and one year: an amount equivalent to 20 days’ wages.
(iii) From the date the worker joined to the anniversary of this date in 1983: one month’s wages for each year or part thereof greater than six months’ employment, with an upper limit of 12 payments.
(iv) From 1984, each worker shall be entitled to the compensation accrued up until 1983, in addition to one month’s additional wages for each year or part thereof no less than six months, beginning from the anniversary in 1983.
The text in bold was annulled by the Chamber.
(b) Severance pay following resignation
Resignations must be tendered to the Institute in writing, according to the following rules:
(1) After continuous employment lasting between three and six months: with a minimum of one week’s notice.
(2) After continuous employment lasting between six months and one year: with a minimum of 15 days’ notice.
(3) After one year’s continuous employment: with a minimum of one month’s notice.
Written notification may be waived provided that the other party affected has received the monetary payment corresponding to the period of time set forth in the abovementioned rules.
According to their length of service, workers who resign shall be entitled to severance pay, but in the following proportion:
(i) After continuous employment lasting between three and six months: an amount equivalent to ten days’ wages.
(ii) After continuous employment lasting between six months and one year: an amount equivalent to 20 days’ wages.
(iii) After employment lasting between one and five years: 50 per cent of their monthly wages for each year of service or part thereof greater than six months.
(iv) After employment lasting between five and ten years: 75 per cent of their monthly wages for each year of service or part thereof greater than six months.
(v) After employment of ten or more years: one month’s wages for each year or part thereof greater than six months, according to the terms of article 160(a)(iv).
The text in bold was annulled by the Chamber.
(c) Severance pay following dismissal with just cause
According to their length of service, workers dismissed by the Institute with just cause shall be entitled to severance pay, but in the following proportion:
(i) After employment lasting between one year and three years, six months: 25 per cent of their monthly wages for each year of service or part thereof greater than six months.
(ii) After employment lasting between three years, six months and six years, six months: 50 per cent of their monthly wages for each year of service or part thereof greater than six months.
(iii) After employment lasting between six years, six months and 12 years: 75 per cent of their monthly wages for each year of service or part thereof greater than six months.
(iv) After employment of 12 years or more: one month’s wages for each year of service or part thereof greater than six months, according to the terms of article 160(a)(iv).
Workers dismissed by the Institute with just cause shall receive the amount due to them in monthly payments subsequent to the date on which they leave the Institute.
Such monthly payments shall be the result of dividing the total benefits by the number of years served, up to a maximum of 12 payments.
The text in bold was annulled by the Chamber.
(d) Severance pay: Length of service provisions
(i) For the purposes of the abovementioned paragraphs (a), (b) and (c), only years in the service of the Institute shall be taken into account for those workers who joined subsequent to 31 December 1983.
In the event that workers rejoin the Institute, only the years served since their return shall be taken into account.
(ii) For those workers who joined or rejoined subsequent to 31 December 1983, the years recognized under article 55(i) of this agreement shall not be considered for the purposes of this article.
(e) The rules set forth in article 161 of this agreement shall be used when determining the monthly wages to be used as the basis for paying the compensation provided for herein.
Article 27: Paid leave is granted in the following cases:
(a) Workers shall be granted eight working days’ leave on the occasion of their marriage. In this case, workers must notify their line manager within 15 calendar days of the date of the marriage.
(b) In the event of the death of a worker’s spouse, partner, parent (whether biological, adoptive or foster), child or sibling, workers shall be granted five working days’ leave if the death occurs within the country and ten working days’ leave if it occurs abroad and the worker must leave the country.
(c) In the event of a serious illness affecting a worker’s spouse, partner, biological or adoptive parents or children, workers are eligible for up to 30 days’ leave. In such circumstances, medical certificates must be provided and shall be assessed by a doctor designated for such purposes by the Human Resources Department. Leave shall be granted when workers are required to attend to the ill family member as a necessary part of their treatment and all other possibilities have been exhausted.
(d) Expectant mothers are eligible for one month’s leave prior to the birth and three month’s leave subsequent to this.
(e) Adoptive mothers are granted the benefits established in paragraph (d), with the exception of the one month prior to birth, provided that the adopted child is aged under 2 years.
(f) When an invitation is issued by international organizations for a worker to attend or participate in seminars, conferences or similar activities, a maximum of 30 days’ leave shall be granted, provided that the subject is considered to be of interest to the Institute, as defined by the Human Resources Department. Such leave shall be approved by the management.
(g) At the end of the period indicated in paragraph (e), the Institute shall grant each working mother one additional day per month to take her child for a medical check-up during the child’s first year of life. The respective line manager must be given at least five days’ notice. The foregoing is subject to verification and non-compliance could lead to suspension of this benefit.
(h) Mothers shall be granted leave of one hour per day for nine months while breastfeeding their children. This period may be extended at the Institute’s discretion, but can only be granted once a medical certificate issued by a paediatrician is submitted to the Human Resources Department.
(i) On the birth of their child, the father shall be granted two working days’ leave. These days must be included in the period between the beginning and the end of the spouse’s or partner’s confinement.
(j) (Former paragraph (l)). When workers are detained for legal reasons, the Institute shall grant them unpaid leave for the entire period of their detention until a definitive ruling is handed down, except in cases relating to maintenance or those classed as offences under the Psychotropic Substances Act. Leave shall end once the ruling becomes definitive. If workers are found innocent, the Institute shall pay them the missed wage payments.
The text in bold was annulled by the Chamber.
n Collective Agreement between the People’s Savings and Community Development Bank Workers’ Union (SIBANPO) and the People’s Savings and Community Development Bank
Hours of work, breaks, leave and disabilities
Article 26 (Holiday bonus): (A) Workers shall receive a cash holiday bonus from the Bank, calculated on the basis of the most recent nominal wages at the time when the holidays are taken, in accordance with the following scale:
I. After employment lasting between one and five years: the equivalent of four days’ wages.
II. After employment lasting between six and nine years: the equivalent of six days’ wages.
III. After employment lasting between ten and 15 years: the equivalent of eight days’ wages.
IV. After employment lasting 16 years or more: ten days’ wages.
(B) Workers who joined subsequent to the date on which the Second Reform to the Third Collective Labour Agreement (26 June 1998) was signed shall receive a holiday bonus from the Bank in accordance with the following scale:
I. After employment lasting between one and five years: the equivalent of four days’ wages.
II. After employment lasting six years or more: the equivalent of six days’ wages.
(C) Workers who joined subsequent to 27 June 2001 shall receive a holiday bonus from the Bank in accordance with the following scale:
I. After employment lasting between one and five years: the equivalent of four days’ wages.
II. After employment lasting six years or more: the equivalent of five days’ wages.
Paragraphs (a), (b) and (c) were annulled by the Constitutional Chamber.
Salaries, increases and other related measures
Article 44 (Wage adjustments and increases): The Bank and SIBANPO undertake to conduct a joint review of salaries every six months and to establish the corresponding adjustments or increases so that the amounts negotiated are paid in January and July of each year.
When establishing the wage adjustments of staff appointed prior to 27 June 2001, the Bank and SIBANPO shall take into consideration the official studies on increases in the cost of living.
When establishing the wage adjustments of staff appointed subsequent to 27 June 2001, the benchmark used shall be the results of surveys of market salaries for the national financial sector conducted by companies specializing in this type of study. When the adjustment from applying the survey data is less than the consumer price index variation for the same period, SIBANPO and the Board shall negotiate the corresponding adjustment.
This was annulled in its entirety by the Constitutional Chamber.
Article 45 (Increment for merit): The Bank shall increase workers’ salaries each year on merit, in accordance with the pay scale currently in effect, provided that the worker obtains a rating equal to or greater than 70 per cent.
Should workers disagree with the rating, they can appeal to the Rating Appeals Tribunal under article 53 of this collective agreement.
This increment shall take effect once the worker has been in post for a further year.
This benefit shall be calculated using the Bank’s own methodology that it has been applying for such purposes.
The Bank shall apply the pay scale currently in effect for the purposes of paying this bonus.
Staff joining from 27 June 2001 shall be entitled to a bonus of 4.5 per cent of their nominal monthly wages when they obtain a rating equal to or greater than 70 per cent. This bonus shall not form part of their wages for the purposes of periodic adjustments and shall be paid once per year.
This clause was annulled in its entirety by the Constitutional Chamber.
Article 79 (Five-year period): I. The Bank shall provide workers with an additional financial benefit to be made every five years of employment, in accordance with the following scale:
(a) First five-year period: 25 per cent of the nominal monthly wages.
(b) Second five-year period: 50 per cent of the nominal monthly wages.
(c) Third five-year period and beyond: 100 per cent of the nominal monthly wages at each five year period.
II. Workers joining from 27 June 2001 shall receive a benefit from the Bank every five years, according to the following scale:
(a) First five-year period: 25 per cent of the nominal monthly wages.
(b) From the second five-year period: 40 per cent of the nominal monthly wages.
This clause was annulled in its entirety by the Constitutional Chamber.
n Collective Agreement between the National Production Council Workers’ Union (SINCONAPRO) and the National Production Council
Article 36: The Council, on the basis of a worker’s length of service, shall automatically pay a minimum of 3 per cent per year of the base salary as the worker completes each year of service.
Article 47: The Council agrees to pay workers partial holiday compensation, in accordance with the following terms:
– Workers entitled to 15 working days shall enjoy 12 working days and may request compensation for three working days.
– Workers entitled to 20 working days shall enjoy 12 working days and may request compensation for eight working days.
– Workers entitled to 30 working days shall enjoy 12 working days and may request compensation for 18 working days.
For the purposes of paying compensation days, the monthly wage shall be divided by 27. Compensation days shall be paid in a single payment. It is understood that holiday compensation shall be made based on the wages due to the worker at the time of claiming this right, respecting the system established for those who have other sources of income, including holiday compensation.
In its ruling, the Constitutional Chamber struck out the entirety of article 47 and in article 36, deleted the words “a minimum”.
409. In their communication dated 9 February 2007, the complainant organizations allege that on 15 January 2007, Mario Núñez Arias, a Congressman belonging to the Libertarian Party parliamentary faction, the same congressional faction that had requested that the Constitutional Chamber annul the various clauses in the collective agreements, filed a complaint against the trade union leaders with the Office of the Attorney-General (judicial body responsible for investigating complaints submitted to it and bringing charges before the criminal courts) for submitting a complaint to the ILO about the Costa Rican Government. This fresh attack on freedom of association attempts to “bring into line” trade union leaders by asking the Public Prosecutor’s Office to criminalize and punish the submission of complaints to the ILO. The practical consequences of this would be imprisonment or some other repressive measure intended to silence union stewards and thereby leave workers in a state of utter defencelessness.
410. The said document calls for the dismissal of the union leaders, who work for government institutions, where unionization is higher.
411. This act by Congressman Mario Núñez Arias clearly seeks to silence union leaders and to deprive them of their freedom of movement, as is the custom with tyrannies.
412. In the document supporting the complaint to the Public Prosecutor’s Office against the union leaders, the Congressman in question rashly states that labour and social rights are upheld in Costa Rica. This contention is a stark contrast to the numerous wake-up calls that the country has received from the ILO and its supervisory bodies in relation to Conventions Nos 87 and 98.
413. With regard to the merits of the complaint made against the union leaders to the Public Prosecutor’s Office, the complainant organizations indicate that the complaint demonstrates a spirit of persecution by citing articles 27 and 30 of the Constitution, in addition to 32 et seq. of the Constitutional Jurisdiction Act, given the implications of these articles for the Attorney-General. It represents an attempt not only to gag union leaders, but also to deny them their right to report abuses committed against the union movement and its fundamental rights, thereby harming both trade unions and, in particular, members and workers throughout the country. The Congressman’s action is a “complaint” of a criminal nature, which, when assessed correctly, entails depriving the “defendants” of their liberty for standing up for bargaining rights. Moreover, it is an action that leaves much to be desired, since the Congressman in question enjoys immunity under the Constitution, preventing the threatened union leaders from taking legal action unless the Legislative Assembly strips him of this privilege, which is virtually impossible.
414. The reference to articles 27 and 30 of the Constitution, in addition to 32 et seq. of the Constitutional Jurisdiction Act, has a very specific purpose. Article 27 reads: “The right to petition any public official or State entity, either individually or collectively and the right to obtain prompt resolution are guaranteed.” Invoking this right to petition is a means of “reminding”, warning or forcing the Attorney-General to act in accordance with the petition and to obtain a prompt resolution, i.e. that criminal charges be brought against the union leaders, given that the role of the Office of the Attorney-General is to begin criminal proceedings in matters brought to its attention, whether as a result of a complaint by an interested party, or by learning itself or through the Public Prosecutor’s Office that an offence has been committed.
415. Article 30 reads: “Free access to administrative departments for purposes of information on matters of public interest is guaranteed. State secrets are excluded from this provision.” Citing this right to request information can be understood in the sense that the complainant is preparing for if the Attorney-General should fail to act, when he will then file an application for amparo (protection of constitutional rights), stemming from the references made to the articles in his complaints. This means that the crux of the matter is not simply the submission of a complaint, but the fact that an official of the Legislative Assembly (the legislative branch) is giving an order to the Office of the Attorney-General (a body belonging to the judiciary), violating the separation of powers, in order to achieve his aim of having the Attorney-General begin the respective legal proceedings, or if not, threatening to file an application for amparo against him.
416. Article 32 of the Constitutional Jurisdiction Act establishes that:
When the application for amparo refers to the rights to petition and to obtain prompt resolution set forth in article 27 of the Constitution, and no timeframe is indicated in which to respond, it shall be understood that the violation takes place ten working days from the date on which the application was made at the administrative office, without prejudice to reviewing in the decision on the appeal the reasons adduced as to why this timeframe was insufficient, in the light of the circumstances and nature of the matter.
417. According to the complainants, citing this set of articles (27 and 30 of the Constitution and 32 et seq. of the Constitutional Jurisdiction Act) represents a clear warning to and threat against the Attorney-General, in the sense that Mario Núñez Arias, as a Congressman, has the right to be heard and to demand a response to his petition, which must take place within the following ten working days. This means that he is expecting an immediate response from the Attorney-General and that he expects him to bring criminal charges against the union leaders for submitting a complaint to the ILO in December 2006.
418. The unions express their concern at this new attack involving a Congressman, whose political party has been and is one of the most aggressive in stripping out the labour and social rights contained in collective agreements. They argue that the Office of the Attorney-General is a further means of putting the final nails in the coffin of freedom of association by imprisoning the principal union leaders and depriving them of the right to work.
B. The Government’s reply
419. In its communications dated 16 August and 21 December 2006 and 14 May, 9 August and 5 October 2007, the Government states that the use of actions challenging the constitutionality of collective agreements in the public sector has been examined on various occasions by the Committee of Experts, the Committee on Freedom of Association (Cases Nos 2104, 2300 and 2385) and ILO technical assistance missions (including the high-level mission proposed by the Committee on the Application of Standards in 2006), for which reason the Government refers to its earlier responses, along with the corresponding arguments, and also deems it desirable that Case No. 2490 be merged with Case No. 2104 (which the Committee on Freedom of Association is continuing to monitor).
420. The Government indicates that the complainant organizations have no knowledge of the rule of law and the prevailing legislation, without further justification. Legal actions of unconstitutionality are clearly valid steps taken by some public authorities and the courts. Even when the complainant organizations do not share an opinion, they must respect it, given that they are subject to the Constitution and the law. Under the Constitution, the Government is popular, representative, periodical and responsible. It is exercised by three distinct and independent branches: legislative, executive and judicial. None of these branches may delegate the exercise of their own functions. In this context, the Constitution requires public officials to be mere depositaries of authority and cannot usurp powers which the law has not vested in them. They must take an oath to observe and comply with this Constitution and the laws.
421. The Office of the Ombudsperson is empowered to challenge the constitutionality of clauses in public sector collective agreements, pursuant to decision No. 2000-7730 handed down by the Constitutional Chamber at 2.47 p.m. on 30 August 2000.
422. While the Ministry of Labour and Social Security does not endorse the actions of the Office of the Ombudsperson, nor that of some political parties to challenge the alleged unconstitutionality of some clauses in collective labour agreements, the fact is that they are living in a State governed by the rule of law and what they are doing is exercising a right.
423. The Government complies with the law. To date, only the operative paragraphs of the rulings have been issued and the complainants are acting with reference to these. The outcome of the legal proceedings before the Constitutional Chamber concerning the rules of the collective agreements affecting SITET, the National Power and Light Company, the National Insurance Institute, the People’s Savings and Community Development Bank and the National Production Council, will be contingent solely upon the definitive ruling of the country’s highest legal body, once the complete text of the corresponding decisions has been drafted and notification issued, all of which are expected to take place in the near future.
424. The full texts of these rulings are of great importance, given that the operative paragraphs issued suggest that voting in each of the said actions was divided. Four of the seven judges comprising the Constitutional Chamber upheld or partially upheld the abovementioned actions, whereas the remaining three flatly dismissed them.
425. Therefore, once the text of the rulings in question has been fully drafted, the Government will be in a position to further analyse the possible annulment of some of the clauses in the public sector collective agreements, thereby avoiding falling into speculation and subjective interpretations, as has occurred with the complainant organizations during the course of the actions in question.
426. The Government wishes to reiterate clearly that the institution of collective bargaining is not in danger in Costa Rica. At the moment, what is being discussed is whether particular clauses which are considered an abuse by the Office of the Ombudsperson and an opposition political party should be declared void as a result of actions of unconstitutionality lodged. What is being discussed now is whether the abuse of a right is permitted under the Constitution. This is the fundamental discussion.
427. Labour legislation prescribes minimum rights and, in accordance with ILO case law, clauses in collective agreements can only be annulled on the basis of defects of form or non-compliance with legal minimums, including constitutional provisions. This position has been indicated to the Constitutional Chamber, duly documented, by means of third party instruments in the course of legal proceedings and various studies.
428. The foregoing bears witness to the Government’s will to ensure collective bargaining in the public sector as an institution in accordance with the principles inspiring the ILO.
429. Articles 10 and 14 of the Constitutional Jurisdiction Act No. 7135 of 11 October 1989 state:
It shall be the responsibility of a specialized chamber of the Supreme Court to rule, by absolute majority of its members, on whether rules of any nature and acts subject to public law are unconstitutional … This Constitutional Chamber and its jurisdiction are subject only to the Constitution and the law. Where not expressly stated, the principles of constitutional law shall be applied, in addition to those of public and general procedural law, or, if necessary, those of international or community law, and in turn, the Public Administration Act, the Administrative Contentious Procedures Act and the Codes of Procedure.
430. Having clarified the foregoing and in the name of exercising the right to defence, the Government refers in particular to each of the cases reported by the complainant organization regarding alleged violations of union rights to the detriment of some clauses in public sector collective agreements.
431. So that the Committee on Freedom of Association has further information on which to make its ruling, the Government will include defence reports submitted for the purposes of this communication by the heads of each of the institutions referred to by the complainant organizations and where the Constitutional Chamber found that some clauses in collective agreements in public sector collective agreements were unconstitutional. In such communications, the heads of the institutions explain the legal and other grounds (including the ILO Conventions and the position of its supervisory bodies) that had led them to agree the clauses annulled by the Constitutional Chamber with the trade unions and stress that the rulings were the unions’ responsibility. Nevertheless, they state that the annulled clauses had been submitted to the Committee on Policies for Collective Bargaining in the public sector for the very purpose of having technical support with regard to the principles of proportionality and rationality in expenditure and use of public services. The Government also includes a report submitted by the President of the Supreme Court (it indicates that the Constitution empowers the Court to rule on cases brought before it, particularly those mentioned in the case before the Committee on Freedom of Association; it also indicates the rulings in which the Court’s case law can be found).

C. The Committee’s conclusions

432. The Committee observes that in this case, the complainant organizations allege that the Constitutional Chamber of the Supreme Court ruled unconstitutional various clauses in collective agreements concluded in public institutions and enterprises (the National Power and Light Company, the National Insurance Institute, the People’s Savings and Community Development Bank and the National Production Council) in economic and social matters that improved the benefits established under the employment contract and legislation and, more specifically: preference for children of (deceased) workers over other candidates for employment on equal terms; financial benefits for a worker’s widow; loans to assist with housing; partial compensation for holiday periods; improved severance pay in cases of dismissal with or without just cause; paid leave if a worker should be detained for legal reasons and is subsequently found innocent; holiday bonuses; wage adjustments; performance-based increases; additional financial benefits every five years and payment in lieu of part of the holiday entitlement. In addition, the complainant organizations allege that a member of a political party has filed a criminal complaint with the Office of the Attorney-General against union leaders for submitting a complaint to the ILO and also requests their dismissal.
433. The Committee notes the Government’s statements in which it indicates that the allegations relating to legal actions of unconstitutionality brought against clauses in collective agreements in the public sector have been considered by the Committee on Freedom of Association, the Committee of Experts and various ILO missions and requests that they be considered as part of Case No. 2104. In this respect, the Committee wishes to stress that this matter has indeed been considered in previous cases. Nevertheless, the Committee considers that the allegations must be considered in the present case as they include new information and, more specifically, new declarations of unconstitutionality against four new collective agreements on the basis of four applications for constitutional review made in 2003 to the Constitutional Chamber of the Supreme Court, particularly by the Ombudsperson and members of a political party.
434. The Committee notes the Government’s statements, according to which (1) the Government does not endorse the actions of the Office of the Ombudsperson nor of other political parties in challenging collective agreements, even if they are entitled to do so; (2) the Constitutional Chamber’s decisions have not been drafted in full, only the operative paragraphs exist, but they suggest that voting was divided; (3) the Government’s analysis process makes it clear that the full text of the rulings is required in order to avoid falling into speculation and subjective interpretations; (4) the Government has indicated the ILO’s position and its principles to the Constitutional Chamber; and (5) the Government has demonstrated its will to ensure collective bargaining in the public sector as an institution. The Government attaches communications from the heads of enterprises and institutions affected by the annulment of particular clauses in their collective agreements. There is a particular unease emanating from these communications, especially since the agreements had been set before the Committee on Policies for Collective Bargaining in the public sector at the time in order to have technical support, although they do point out that they must abide by the Constitutional Chamber’s rulings and the separation of powers principle. The Committee observes the Government’s request that its statements and arguments made in previous cases also be included. The Committee summarizes the Government’s previous statements in earlier cases as follows: (1) the Government possesses the will and commitment to resolve the problems; (2) it has requested the ILO’s technical assistance in the hope that this will help to solve the problems mentioned; (3) the efforts of the Government (many of which were tripartite) regarding these problems included the presentation of several legislative proposals to the Legislative Assembly and their reactivation: a draft constitutional amendment concerning article 192, a bill on collective bargaining in the public sector, and the addition of paragraph 4 to article 112 of the General Law on Public Administration (the three initiatives are intended to strengthen collective bargaining in the public sector); bill on parliamentary approval of ILO Conventions Nos 151 and 154; the draft revision of various sections of the Labour Code, Act No. 2 of 26 August 1943 and Decree No. 832 of 4 November 1949; (4) the Government’s efforts also include other types of initiatives, such as the intervention of third parties to defend collective agreements (coadyuvancia) in legal actions of unconstitutionality brought in order to annul specific clauses.
435. The Committee observes that the issue of legal actions of unconstitutionality brought in order to annul clauses in collective agreements in the public sector was the subject of a high-level mission in 2006 and has been examined in recent years by the Committee of Experts. In its 2006 observation on the application of Convention No. 98, the Committee of Experts stressed that according to the conclusions and the documentation of the high-level mission, the problems relating to collective bargaining will be addressed through the mentioned draft amendments to the Constitution and the General Law on Public Administration, a bill on the negotiation of collective agreements in the public sector, and through proposals for parliamentary approval and ratification of Conventions Nos 151 and 154; the pending proposals will be examined by the Higher Labour Council (a tripartite body for dialogue) with the objective of studying them and providing them with new impetus, through consensus; and the Higher Labour Council asked the Legislative Assembly to set up a joint commission, with the technical assistance of the ILO, in order to develop the plan for the reform of the working procedures.
436. The Committee endorses the comments made by the Committee of Experts at its November 2006 meeting, reproduced as follows :
The Committee notes on the other hand that, as concerns the possibility of judicial annulment of clauses in collective agreements in the public sector on the basis of criteria of rationality and proportionality, the mission explained the principles of the ILO to the different authorities involved in the complaints filed for unconstitutionality regarding these collective agreement clauses. The Committee notes that the relation of votes of the judges of the Constitutional Chamber annulling the clauses of the collective agreements is in development, having passed from a vote by 6 to 1, to 4 to 3, and thus, according to the Government, out of a total of 1,828 clauses, 122 had been contested (6.67 per cent) out of which only 15 were invalidated (0.82 per cent), 31 were deemed constitutional (1.69 per cent) and 76 were unresolved and still pending; according to the Government, the contested clauses precede the Decree of 21 May 2001 regulating collective bargaining in the public sector as well as the adequate consideration of the jurisprudence of the Constitutional Chamber, which will obviate new contestations in the future.
The Committee underlines nevertheless that the trade union rights situation remains sensitive. The cases submitted to the Committee on Freedom of Association and the numerous complaints to the mission demonstrate the persistence of important problems regarding the application of the Convention in matters of anti-union discrimination and collective bargaining, which have given rise to discussions in the Conference Committee on several occasions. The Committee understands the difficulties of employers’ and workers’ organizations, faced with a lack of political will on the part of preceding governments whose proposals for legal reform were inadequate or lacked sufficient support, in spite of the fact that, in several cases, they were following tripartite agreements. The Committee emphasizes the dangers for the system of labour relations and collective bargaining of the authorities’ failure to produce a set of agreements reached through tripartite consensus.
The Committee notes the Government’s contacts with certain members of the Legislative Assembly who belong to the largest opposition party and who, according to the report of the high-level mission, also support the reforms requested by the ILO. The Committee also notes that … it includes a process for reactivating other legal reforms.
The Committee expresses the hope that the various legal reforms currently in progress will be adopted in the very near future, and will be in conformity with the Convention. The Committee requests the Government to keep it informed in this regard, and hopes that the political will unequivocally expressed following the high-level mission will lead to the fuller application of the rights and guarantees contained in the Convention.
437. The Committee requests the Government to keep it informed of developments with regard to the measures and decisions taken, in addition to the status of bills on collective bargaining in the public sector (including those relating to the ratification of Conventions Nos 151 and 154) and expects that the Constitutional Chamber of the Supreme Court will take fully into account Costa Rica’s commitments arising from the ratification of Convention No. 98, particularly as regards respect for the principle of collective bargaining in the public sector. The Committee reiterates that additional legal and other guarantees are required to avoid the abusive use of the recourse of unconstitutionality against collective agreements in the public sector by the Office of the Ombudsperson and the Libertarian Party [see 338th Report, Case No. 2385 (Costa Rica), para. 815] which inevitably leads to the social partners losing confidence in collective bargaining, and requests the Government to continue to keep it informed in that respect, as well as of the progress of the joint commission of the Higher Labour Council and the Legislative Assembly with the assistance of the ILO.
438. Lastly, the Committee regrets that the Government has not responded to the allegation regarding the criminal complaint made to the Office of the Attorney-General against union leaders for submitting a complaint to the ILO, in which their dismissal was sought. The Committee requests the Government to respond to this allegation without delay and recalls that no union leader should be subject to intimidation, retaliation or sanctions as a result of submitting complaints to the ILO.

The Committee's recommendations

439. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
- (a) The Committee reiterates that additional legal and other guarantees are required to avoid the abusive use of the recourse of unconstitutionality against collective agreements in the public sector by the Office of the Ombudsperson and the Libertarian Party which inevitably leads to the social partners losing confidence in collective bargaining and requests the Government to keep it informed in that respect.
- (b) The Committee requests the Government to continue to keep it informed of developments with regard to the measures and decisions adopted in relation to ensuring respect for the principle of collective bargaining in the public sector, including the bills mentioned in the conclusions (bill of ratification of Conventions Nos 151 and 154), as well as of the progress of the joint commission of the Higher Labour Council and the Legislative Assembly with the assistance of the ILO.
- (c) The Committee expects that the Constitutional Chamber of the Supreme Court will take fully into account Costa Rica’s commitments arising from the ratification of Convention No. 98.
- (d) Lastly, the Committee regrets that the Government has not responded to the allegation regarding the criminal complaint made to the Office of the Attorney-General against union leaders for submitting a complaint to the ILO, in which their dismissal was sought. The Committee requests the Government to respond to this allegation without delay and recalls that no union leader should be subject to intimidation, reprisals or sanctions as a result of submitting complaints to the ILO.