Interim Report - Report No 348, November 2007

Case No 2518 (Costa Rica) - Complaint date: 30-AUG-06 - Closed

Allegations: The complainant organizations allege the slowness and ineffectiveness of administrative and judicial procedures in cases involving anti-union practices, the impossibility of exercising the right to strike given that most strikes are declared illegal by the judicial authority, discrimination in favour of permanent workers’ committees to the detriment of trade unions and numerous acts of anti-union discrimination in enterprises in the banana sector

440. The complaint is contained in a communication from the Industrial Trade Union of Agricultural Workers, Cattle Ranchers and Other Workers of Heredia (SITAGAH), the Plantation Workers Trade Union (SITRAP), the Chiriquí Workers Trade Union (SITRACHIRI) and the Coordinating Organization of Banana Workers Trade Unions of Costa Rica (COSIBA CR) of August 2006. These organizations sent additional information in a communication of October 2006.

1. 441. The Government sent its observations in communications dated 21 December 2006 and
2. 3 August 2007.
3. 442. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 443. In their communication of August 2006, SITAGAH, SITRAP, SITRACHIRI and the Union of Agricultural Workers of Limón (UTRAL), affiliates of the Coordinating Association of Banana Workers of the Atlantic Region and Sarapiquí, state that the complaint arises from serious failure to act and indifference on the part of the State of Costa Rica and its institutions, violation of freedom of association and unfair labour practices by private enterprises against unionized workers, their representatives and their organizations, violation of the fundamental right to access to prompt, full and effective justice, especially in regard to protection of the rights of unionized workers in the private sector against unfair anti-union practices by private enterprises which violate agricultural and banana workers’ fundamental labour rights. These workers are now being denied their rights under the Universal Declaration of Human Rights, constitutional provisions on freedom of association, the Labour Code (section 363 and ff. and related sections), ILO Conventions Nos 87, 98 and 135 relating to collective bargaining and freedom of association and Decision 5000-93 of the Constitutional Chamber on the same subject. As has been publicly denounced on numerous occasions, banana and other agricultural enterprises are continuing to subject unionized workers to persecution, discrimination, harassment, lower wages, threats and dismissal. Among other serious violations in recent years, denial or lack of viable or achievable access to the fundamental right to strike occurs with the tacit complicity of the Costa Rican State, which boasts that its inhabitants live under the rule of law, but when it comes to applying the law in favour of workers, the conditions for access to the judiciary are such that they make it impossible for workers to have recourse to it; with proceedings lasting more than six years it is entirely ineffective. Costa Rican workers are not protected by judicial or administrative procedures that defend their rights in a rapid and efficient manner. For example, in the Dos Ríos banana plantation, over 200 workers were not paid their wages on time or in the required form. Despite the fact that the workers were even working without pay to help the employer, when they held a protest strike the enterprise filed a complaint against them with the labour court, which declared the strike illegal, and all the workers were dismissed without any of their statutory rights or benefits. The representative of the enterprise stated that they had not been dismissed, but had resigned.
2. 444. In this regard, the ineffective Labour Code subjects the right to strike to a solemn and formal procedure more suited to ancient Roman and canonical law. Costa Rican labour law is not consistent with the real needs of Costa Rican workers – without wages, their families going hungry and without the money to pay for a labour lawyer. It is impossible for workers to meet the endless formal requirements for exercising their constitutional right to strike. The procedure is designed for workers to fail in the attempt. How many strikes have been declared legal in the private sector in Costa Rica during the last 100 years by the labour courts? One or two, if any. It is obvious that unionization of private sector workers is the target of repression.
3. 445. Apart from the banana workers’ unions, trade union activity in the Costa Rican private sector is non-existent. In the Central Valley or the greater metropolitan area, where thousands of enterprises are located, there are no trade unions, and the few that do exist can be counted on the fingers of one hand; this is not because the workers do not want them, but because repression by enterprises is such that any workers attempting to organize are immediately dismissed.
4. 446. The complainants emphasize that the utter indifference of government bodies has meant that the fundamental rights of all unionized workers are illusory. In practice, the right to organize in the private sector is nothing but a dream. The facts put forward in this complaint are merely a small sample; in reality the situation is far worse. The workers have been terrorized to the point where they are afraid of the words “trade union”, and they know that anyone attempting to form a trade union will be immediately dismissed.
5. 447. Although there is a whole body of law protecting workers’ rights in regard to freedom of association and labour legislation, it is a serious matter for concern that the competent administrative authority in regard to protecting workers’ rights – the General Labour Inspectorate of the Ministry of Labour – does absolutely nothing. It fails to display the slightest interest in practice in resolving this kind of problem or disputes affecting the workers of the private sector in the country, a further aggravating factor being that trade union activity in the private sector is entirely prohibited by employers, and anyone who does not abide by the employer’s wishes is immediately dismissed. For these reasons, a number of appeals for protection of constitutional rights (amparo) have been filed by different banana workers’ unions against the Labour Inspectorate of the Ministry of Labour (12 are mentioned in the complaint) on grounds of violation of the constitutional right of access to prompt and full justice (article 41 of the Constitution). According to the complainants, all of the amparo proceedings resulted in a ruling in favour of the workers. The complainants assert that labour legislation needs to be changed in order to protect workers’ rights; an employer may dismiss any worker without just cause or on spurious grounds, and legal action can take up to six years or more.
6. 448. The political Constitution provides for freedom of association and that workers have no obligation to join or not join a trade union. Employers make full use of this right, since they coerce workers to withdraw from trade unions and, although penalties exist for employers who coerce workers, any proceedings for this purpose must be brought before an ordinary court and take years, generally to the detriment of the workers.
7. 449. In its communication of October 2006, the complainant organizations state that the legislature and the Government have enacted legislation specially designed to destroy the trade union movement in the private sector, with the creation of “permanent workers’ committees”. In this regard, section 504 of the Labour Code provides that:
8. Employers and workers shall endeavour to resolve their differences through direct arrangement, with the sole participation of the parties or of any other mediator chosen by them. To that end, the workers may establish permanent councils or committees in every workplace, composed of no more than three members, who shall be responsible for submitting their complaints or requests to the employers or their representatives, either verbally or in writing. Such councils or committees shall be duly attentive in carrying out their duties and, when they do so, the employer or his representative shall not refuse to receive them at the earliest opportunity.
9. In other words, this section applies only to enterprises in the private sector, but not to the public sector.
10. 450. The complainant organizations wonder why this discrimination between one sector and another. In their view, the answer is obvious: the premeditated destruction of trade unions in the private sector. In this respect, they consider that the following should be taken into consideration: (a) while a trade union has at least 12 workers, the permanent committee consists of only three; (b) in a trade union all the members of the executive must be Costa Rican citizens, while the members of the permanent committee may be foreign workers, even if they do not have any knowledge of labour legislation; (c) a trade union is required to have legal personality and its own structure and formal procedure, while permanent committees are authorized to negotiate by means of a simple note to the Ministry of Labour; (d) a trade union is represented in any negotiations with the enterprise by the members of the executive committee, previously elected at a workers’ assembly. Permanent committees are invariably required by the employers’ side to include a “mediator”; (e) trade unions hold their assemblies privately and subject to the independent will of their members; permanent workers’ committees always hold their meetings on the premises of the enterprise and in the presence of the management; (f) the term of office of trade union officers is prescribed by law; members of workers’ permanent committees who do not agree with the policies of the enterprise are generally removed from office at any time, in the absence of any regulations on the subject; (g) in pursuit of their objectives, trade unions fight for the collective agreement, which has force of law, while permanent committees conclude an “agreement”, termed “direct settlement”, with the employers; (h) a collective agreement is submitted by the trade union, while the direct settlement is drafted by the enterprise and is generally mandatory; (i) there is one collective agreement, but 500 direct settlements.
11. 451. By way of example and as a very small sample, the complainants mention the following facts that have recurred over a relatively short period, without any intervention by the State of Costa Rica to impose order.
12. I. Case of Chiquita
13. 452. The Atlántica Limitada Chiquita banana company violated a regional agreement signed between Chiquita and the banana unions. It has carried out the threats it had been making against representatives and members of the executive of the SITAGAH trade union and members of the Committee on the Implementation of the Regional Agreement. Although the banana workers’ trade unions signed an agreement between the IUF/COLSIBA and Chiquita on freedom of association, minimum labour standards and employment in banana operations in Latin America, the threats made by the enterprise were carried out in the form of dismissals. The transnational enterprise is failing to meet its own commitments, as may be seen in the examples given below.
14. I.1. Chiquita – Cobal
15. 453. Despite the fact that a framework agreement has been signed between the banana trade unions and Chiquita, under which the employer undertakes to respect freedom of association and commitments relating to labour relations with the workers who are members of trade unions, the enterprise has never complied with this agreement, and does not recognize its commitment. For some time now, the company in question has been waging a cold war and committed physical and psychological attacks against all of the workers who are members of banana trade unions, making their lives practically unbearable. Unionized workers are not shown any respect or consideration, and are being given to understand that the enterprise is doing them a favour by giving them work and that if they are not satisfied they can leave. Most of the enterprise managers are trained or indoctrinated to combat unionization in all of the banana producing areas of Costa Rica where Chiquita has interests. The centre of its operations is now the Atlántica Limitada banana company, located in Sarapiquí, where the SITAGAH is active and where membership has been on the increase recently owing to poor working conditions in the company, eliciting a furious response from the employer, which has taken an angry and dismissive stance towards unionized workers and SITAGAH.
16. 454. In Cobal there has been a wave of serious anti-union persecution against the workers’ organization and all of its members, especially trade union leaders who work or have worked there. The enterprise dismissed workers’ representative Mr Teodoro Martínez Martínez, accusing him of a dubious offence allegedly committed on 8 April 2006. Even if he had done so, the enterprise has one month to apply the penalty, but he was given his notice of dismissal on 12 May and received it on the same date, i.e. after the statutory deadline. Moreover, there were no grounds for the dismissal, which was solely motivated by his being a trade union representative. His dismissal was deviously planned in order to set an example. The truth is that the Cobal management did not like the statements being made by trade union officer Teodoro Martínez Martínez in defence of the workers and their labour rights which were being violated daily at the enterprise. Thus they not only rid themselves of a very valuable member of SITAGAH who was an outstanding defender of his fellow workers, but left the other members without defence as he could no longer represent them. Persecution is apparently closely targeted at trade union leaders on the plantations. Relying on inaction by the Costa Rican authorities, whether the judiciary or the Ministry of Labour, as well as the labour legislation in force, enterprises have been doing what they like in the framework of processes lasting for six or seven years.
17. 455. Mr Amado Díez Guevara, Undersecretary of SITAGAH and member of the Committee on the Implementation of the Regional Agreement between the IUF/COLSIBA and Chiquita, was dismissed on spurious grounds and denied the right to defence or due process, despite the fact that an agreement provides for a procedure in cases where a worker is penalized for any kind of disciplinary offence. Due process is only granted to management, who have all the evidence on their side, in other words they are both judge and party in an internal procedure. This worker has been persecuted for a long time and was ultimately informed of his dismissal on 30 May 2006 in a letter which does not specify the conditions of his dismissal. This trade union officer and labour leader has always displayed considerable knowledge and leadership among his fellow workers. Chiquita’s aim is to eliminate all the trade union members of the Committee on the Implementation of the Regional Agreement between IUF/COLSIBA and Chiquita.
18. 456. Mr Pedro Calero Ruiz, a trade union representative on Chiquita’s Oropel plantation, was dismissed with payment of his benefits. He is claiming the statutory immunity granted to unionized workers. The enterprise issued a memorandum of 23 February 2006 in which it undertook to cancel the dismissal. However, it has not carried out this commitment to date. Mr Vicente Rodríguez Cubero, another labour leader and member of the SITAGAH executive was also dismissed, and trade union member Mr Evaristo Chavarría Campos had his wages reduced by 30 per cent as a means of exerting psychological pressure on him. There is no doubt that the workers are being subjected to anti-union persecution and unfair labour practices, which have been the subject of repeated complaints to the Ministry of Labour in recent years, without any positive results for the workers or the trade union so far.
19. 457. Mr Juan Francisco Reyes, a member and officer of the trade union at the Cobal Gacelas plantation, was subjected to surveillance, persecution, harassment and penalties on spurious grounds and ultimately was dismissed without employer liability. The reason for the dismissal was his membership of SITAGAH.
20. 458. Mr Ricardo Peck Montiel, trade union representative at Cobal’s Cocobola plantation, trade union leader and member of the Committee for the Implementation of the Regional Agreement, has been constantly monitored and harassed in an attempt to find a reason and finally dismiss him. He has been subjected to psychological pressure, harassment and discrimination by the human resources representative of the company and other members of management. The aim of the enterprise is to bring down membership on the plantations and eliminate the trade union presence, which has been typical behaviour of this transnational enterprise throughout the history of its operation in the banana growing regions.
21. 459. A major anti-union campaign has been organized on the Cobal – Chiquita plantations by representatives of management, who have continued to violate labour law and fundamental rights in the case of Sarapiquí. Naturally, all those responsible for violating fundamental labour standards are managers employed by the Chiquita transnational enterprise. Strange as it may seem, this company does not even comply with court orders, relying on the absolute anarchy and chaos that reign in our ineffective judicial system and in complete disregard for the law. Neither does it respect the legal system in the case of judicial decisions or final rulings. Such was the case of judicial proceedings (file No. 00-000031-0166-LA), instituted against Cobal by Mr Reinaldo López González, a worker who was dismissed while he was a workers’ representative and trade union member. Two years ago the courts handed down a final ruling which the enterprise refuses to implement, ordering the worker’s reinstatement in his former post and payment of his unpaid wages. A similar case is No. 02-000616-0166-LA, brought against Cobal by the worker Mr Leopoldo Alvarez Alvarado, a member of the SITAGAH executive. Nearly a year ago the courts handed down a judgement ordering that anti-union persecution and harassment cease and that he be paid the wages that had remained unpaid as a result of a substantial reduction in his wages and extra work unilaterally imposed on him by the enterprise. However, the enterprise refuses to execute this judgement and the worker is still being persecuted and threatened with continued reduction of his wages. Similarly, in case No. 98-003283-0166-LA, involving Mr Manuel Murillo de la Rosa, candidate trade union representative of SITRACHIRI, the courts issued a final judgement ordering the enterprise to reinstate the worker and pay him his unpaid wages. Despite the fact that the judgement has been final for one year, the enterprise has still not carried it out. In case No. 95-000954-0213-LA, the judgement has been final for over one year in proceedings for refusal to deduct members’ trade union dues. The San José labour court ordered the enterprise to make the payments, but it has not complied with this order. The Chiquita enterprise has fallen into a pattern of refusing outright to comply with labour law or court decisions. The transnational enterprise continues to violate legislation with the full consent of the State of Costa Rica in the form of total apathy in the face of such conflicts.
22. I.2. Chiquita – Chiriquí Land Company – Sixaola
23. 460. The transnational Chiriquí Land Company – Chiquita in the Sixaola area, Talamanca, Limón, Costa Rica, has flouted the eighth collective agreement concluded with SITRACHIRI and imposed a single wage rate for all the workers, without paying overtime or extra work, disregarding lunch breaks and violating all the labour rights laid down in the collective agreement. The trade union and the workers have referred the case to the Ministry of Labour and the labour court, but have received no reply in defence of their labour rights. The only response received from the state bodies, the judiciary or the Ministry of Labour has been in the form of obstacles, evasive replies and pretexts for avoiding action. The workers do not even have the constitutional right to strike, a fundamental statutory right which is illusory as far as the workers are concerned.
24. 461. Right to strike. The banana workers employed by the Chiriquí Land Company and the private sector know that although the right to strike is classified as a fundamental right, they cannot exercise this right. A number of complaints have been filed of violations of labour rights: (1) Labour Court of Limón – First Circuit of the Atlantic Region: ordinary labour proceedings instituted by Alberto Jiménez Santos and others against Chiriquí Land Company, file No. 02-300013-461-LA. Over 250 workers are complaining against wage reductions and proceedings have been under way for nearly five years without even a judgement of the court of first instance, out of three levels of jurisdiction; (2) Labour Court of the First Circuit of the Atlantic Region: labour proceedings brought by workers employed by the Chiriquí Land Company: SITRACHIRI versus Chiriquí Land Company, file No. 06-000165-LA (violation of the collective agreement); (3) socio-economic collective dispute filed by the workers employed by the Chiriquí Land Company (file
25. No. 06-000265-0679-LA); (4) Court of the First Circuit of the Atlantic region of Limón: Chiriquí Land Company against its employees, petition to declare a strike illegal, file
26. No. 06-000241-0679-LA-4. In the latter case, the unionized workers were accused of holding an illegal strike and, although the first ruling was in favour of the workers, it was overturned by a higher court and a new judgement is awaited. It is not even worth mentioning the large number of complaints filed with the Ministry of Labour which, as usual, never does anything for the workers. It is impossible to take any strike action, since they are always declared illegal by the courts.
27. 462. At no time did the banana workers of Chiriquí Land Company, driven by fear as they were, hold a strike as found by the labour court. They never intended to hold a strike without having exhausted the cumbersome legal procedure, and were afraid of striking, as it would be declared illegal and they would be left without a job.
28. 463. The enterprise accused the trade union of holding an illegal strike for having held a one-day protest against violation of labour rights and of the agreement itself. All the workers who were absent on that one day went to work on the following day because they knew that if they missed two consecutive days’ or three non-consecutive days’ work in the same month they would immediately be dismissed. The Chiriquí Land Company considers that a strike has been held when this was not the case, in a deliberate attempt to confuse the judicial authority. It has acted recklessly from the outset, and its main objective is to reduce costs to a minimum. The judicial authority has been requested to intervene with speedy, timely and preventive decisions that protect workers’ rights.
29. 464. In this specific case there is said to be a collective agreement in force between the parties, which is being infringed by the enterprise, resulting in serious material and moral prejudice to the workers. The most logical approach would be for the labour court to order the enterprise to refrain from such conduct or restore the original state of affairs, as these are illegal actions on the part of the employer affecting more than 400 workers. The workers are severely perplexed by the fact that the workers have to wait up to five, six or more years for a labour court to determine whether they are right and whether the collective agreement applies to the employment contract. The labour court has been requested to order the Chiriquí Land Company to abide by the collective agreement it signed with the workers. In any case, enterprises also have the right to appeal any decision.
30. 465. The complainants stated that the workers referred a socio-economic collective dispute to the Labour Court of the First Circuit of the Atlantic Region and presented a list of demands (copy attached). The complainants point out that in regard to the complaint concerning discriminatory dismissals, the Labour Court of Limón of the First Circuit of the Atlantic Region replied that an ordinary complaint should be filed. A complaint concerning anti-union persecution is also pending before the same court. On 1 September 2004, the following nine trade unionists were dismissed: (1) Santiago Pineda González, for having claimed his rights through the trade union before the Ministry of Labour; (2) Mauricio Masis Suazo, trade union representative, who was issued warnings for no reason, and denied overtime for having participated in conciliation with the Ministry of Labour;
31. (3) Julio Bustos Cortés, for having claimed his rights through the trade union before the Ministry of Labour; (4) Juan Ramón Ortega Salinas, for having claimed his rights through the trade union before the Ministry of Labour; (5) Yeffry Valle Romero, dismissed for being a union member; (6) Reinaldo Martínez Arguello, trade union representative;
32. (7) Bayardo López Guido, who presented a medical certificate which was not taken into account, and was dismissed without employer liability; (8) Hader Palacio Cano, a member who was dismissed (no legal action was taken); and (9) Herminio Méndez Miranda, a member who was dismissed (no legal action was taken).
33. 466. The complainants point out that the first five names are included in the record of the Ministry of Labour issued on 7 September 2004 and the last four in the document received by the enterprise on 24 September 2004. Clearly, the enterprise not only intends literally to wipe the trade union off the face of the earth or eliminate its leadership, but also to rid itself of all its members, flouting all the principles of society, humanity and legality. According to the enterprise, it is dismissing workers because of problems on the market, which is entirely false given the fact that it is hiring new workers (to replace those who were dismissed). Managerial staff have told the workers that they will dismiss union members every week until there are none left.
34. 467. The complainants state that they have complained to the administrative and judicial authorities that following the nine anti-union dismissals, the following members were dismissed: (1) Lester Quiñónez Mondragón; (2) Jaime Martínez Urbina; (3) José Luís Martínez Chavarría and (4) Juan Martín Franco Muñoz. The following workers were also issued warnings for no reason: Esperanza López Cano, Isidro Flores Molina, Narciso Duarte Picado, Samuel Rizo Acuña, Francisco Oporta Díaz, Juan Manuel Espinoza Medina, Margarito Pineda Calero and others. Management is now also refusing to meet with the workers and to attend conciliation hearings convened by the Ministry, even at the request of the Ministry of Labour.
35. II. Case of Desarrollo Agroindustrial de
36. Frutales SA enterprise
37. 468. ILO Conventions are not being applied at the workplace, especially those relating to freedom of association and collective bargaining. Specifically, (1) since there is no possibility of genuine collective bargaining, the enterprise applies different remuneration rates with the aim of reducing workers’ wages and (2) persecutes and discriminates against members of SITAGAH. Management has stated its intention to do everything it can to get the workers Veneranda Vaquedano Oliva and Modesta Barrera González to leave the trade union, and they have suffered various attacks. Mr Jorge Luis Rojas Naranjo was dismissed for processing fruit that was unfit for sale. There is no just cause for his dismissal, which was motivated by his trade union membership. Mr Ediberto Guido González, a member of the trade union executive, was dismissed on the pretext of unjustified absences. Although he was subsequently reinstated, both the organization and the worker were psychologically and morally affected. He was dismissed for about three months, and the company used the opportunity to frighten workers wishing to join the trade union. The worker Larry Zavala Alvarado was dismissed for approximately one year, and later reinstated following talks but, as in the previous case, the fact that he was dismissed for such a long period served to intimidate other workers who had joined or intended to join the trade union;
38. (3) management threatens to have the police remove members of the trade union executive committee who visit workplaces, and they have been subjected to verbal attacks, specifically in the case of trade union official Abel Jarquín González; and (4) the enterprise maintains that there have been no anti-union dismissals, but some workers have been dismissed, for example trade unionist Germán Enoc Méndez, who was dismissed because he was unable to work more than 12 hours.
39. III. Case of Santa María del Monte SA
40. agricultural enterprise
41. 469. SITAGAH has filed complaints with the Ministry of Labour and Social Security, the labour inspectorate and the provincial office of Heredia concerning the following anti-union dismissals: (a) Inocente Aguilar Gamboa, dismissed on 2 June 2005 for membership in SITAGAH; he was also a workers’ delegate; (b) Armando Torres Espinoza, dismissed on anti-union grounds on 21 May 2005; (c) Manuel López Muñoz, dismissed on anti-union grounds on 21 May 2005; (d) Erick Jarquín Castro, dismissed on anti-union grounds on
42. 21 May 2005; (e) Noel Leiva Martínez, dismissed on anti-union grounds on 21 May 2005; (f) Deivis Antonio Amador Benítez, dismissed on anti-union grounds on 21 May 2005;
43. (g) Josefa López Jaimes, dismissed on anti-union grounds on 21 May 2005; (h) César Antonio Amador Benítez, dismissed on anti-union grounds on 14 March 2005; (i) Yanci Barahona Aguirre, dismissed on anti-union grounds on 21 May 2005; (j) Bismark Rodríguez Martínez, dismissed on anti-union grounds on 21 May 2005; (k) Martín López Ortega, dismissed on anti-union grounds on 14 May 2005; (l) Mireya Gutiérrez Taisagua, dismissed on anti-union grounds on 2 June 2005; (m) Xiomara Aracelly Taisague Dormos, dismissed on anti-union grounds on 5 May 2005; (n) Alcides Reyes Palacios, dismissed on anti-union grounds on 4 April 2005; (o) Fabio Amador Martínez, dismissed on anti-union grounds on 4 April 2005; and (p) Felipa Gutiérrez Taisagua, dismissed on anti-union grounds on 4 April 2005.
44. 470. The complainants point out that once the workers decided to join the trade union, they were immediately subjected by managerial staff and foremen to persecution, harassment, threats and intimidation until they were finally dismissed. They add that during the night of 14 March 2005 migration police officers arrived at the plantation owned by the Santa María del Monte SA enterprise, known as Pénjamo, in Zapote, Puerto Viejo, Sarapaquí. The police immediately detained a group of workers who had been employed by this employer for a number of years. They were then transferred under arrest to the police jail of Puerto Viejo. Local rumour has it that this procedure was ordered by the employer himself, since the workers include members of SITAGAH. The following workers were detained: Florián Reyes González, Martín López Ortega, Noel Leiva Martínez, Isaías Escobar Velásquez, Manuel López Muñoz, Jairo Oviedo Macareno, Ramón Martínez Martínez, Alcides Reyes Palacios, Juan Arauz Angulo, César Amador Benítez and Jimi Baltodano Cortes.
45. IV. Talamanca and Zavala banana companies
46. 471. UTRAL reported to the administrative authority that 200 workers employed by the Talamanca and Zavala banana companies had their employment contracts suspended without giving any notice to enable them to cope with this difficult economic situation. The complainant organizations state that the UTRAL filed a formal collective complaint against the Talamanca SA banana company on the following grounds: a severe deterioration in the economic situation and working conditions, which are very poor and marked by extreme poverty, the erosion and violation of all of the labour rights laid down in Costa Rican labour legislation, particularly in the light of the refusal by the enterprise to negotiate on any issue relating to wages and work; and that the complaint was filed against the enterprise jointly and subsidiarily in view of the fact that the workers are used interchangeably by two companies. The complainants add that the defendants do not comply with basic obligations like: (1) failure to pay even the minimum wage; (2) failure to pay the end-of-year bonus on time; (3) failure to pay for leave on time; (4) failure to pay social security contributions on time, despite the fact that they were regularly deducted;
47. (5) failure to pay contributions to the National Insurance Institute; (6) failure to comply with even basic occupational health standards; (7) lack of minimum preventive measures in regard to workers’ health; and (8) arrears in the payment of wages. In other words, the case encompasses all the existing violations of labour legislation. The enterprises were called into the Ministry of Labour and Social Security on a number of occasions, but their representatives never attended these meetings, disregarding them entirely. The complainants state that they had to bring their case before the judicial authority since, for more than four months, the enterprise had not responded to their request to negotiate a collective agreement.
48. V. Plantations Cariari and Teresa, owned
49. by Banacol (Chiquita supplier)
50. 472. The complainants state that on 20 March 2006, an initial list of 14 workers who had freely decided to join the Plantation Workers Trade Union (SITRAP) was submitted to the offices of the enterprise, located in Cariari de Pococí, with copies sent to the Ministry of Labour of Guapiles Pococí. On the same day, the organization secretary of SITRAP had a conversation with the production manager of that enterprise and told him that he wanted to handle the situation properly, requesting him to ensure that there were no reprisals against members. However, on 21 March 2006, the manager launched a campaign to get the workers to withdraw from membership of the trade union, calling a worker into the office and asking him to leave the trade union. He told him to look at what had happened in the South Pacific in 1984, when the banana plantations had closed down because of the trade unions, that if he left the plantation he would not be able to find a job on any other plantation as he would be blacklisted, that he would be paying trade union dues for nothing and that the money would be better spent on something for his children, etc. The enterprise allows some members of the permanent committee on the plantation to hold meetings with groups of workers and talk to them along the same lines as the manager; this task is also carried out by foremen and solidarist promoters from the Escuela Social Juan XXIII.
51. 473. On 27 March 2006, the second list of six members was submitted to the office of the enterprise in Cariari. On the same day, the trade union representative had another conversation with the production manager on what was happening to the workers who had joined the trade union. The meeting was rescheduled for 10 April 2006 in the same offices and a nine-point agenda submitted by SITRAP was discussed. However, no agreement was reached on any of the points and a meeting was scheduled for 26 April 2006. Persecution of trade union members has continued on the plantation. Since joining the trade union, Mr Isidro Sánchez Obando was transferred from the job he had been doing for more than three years and his wages reduced, in addition to psychological pressure. Mr Angel Sánchez Coronado was also transferred from his position of the last three years after joining the trade union. In addition, he was assigned harder tasks, at a lower wage and with more hours of work. After joining the trade union, Mr Hermes Cubillo Gomes was transferred from the job he had been doing for over two years, his wages were reduced and he was issued two written warnings with threats of dismissal for offences that he did not commit. In addition, he was suspended from work for three days (3, 4 and 5 April 2006) without pay. It should be mentioned that these three workers are the main SITRAP activists on the plantation and had already been designated as grass-roots union leaders by the membership. Mr Oscar Hernández suffered a substantial reduction in his wages since joining the trade union.
52. 474. As a result of all this persecution, on 4 April 2006 a group of six workers went to the SITRAP offices to withdraw their membership. All of them said that their supervisors knew that they were going to SITRAP to withdraw from membership and that they had been given unpaid leave for that purpose. What is strange is that all of them were paid for that day as if they had been at work. The situation has not changed to date. Persecution of trade union members is continuing and the foremen on the plantation are pursuing their efforts to get the workers to leave the trade union. The enterprise grants them leave for the purpose of meeting with groups of workers at any time, and the members live in fear of being dismissed at any time.
53. 475. As regards another Chiquita supplier, the Teresa plantation owned by Banacol de Costa Rica, the first list of members was submitted to the office of the plantation on
54. 22 November 2004 and the enterprise immediately launched a campaign against the trade union and its members. In order to get them to leave the trade union, the enterprise is using members of the executive committee of the solidarist association and the permanent workers’ committee of the plantation. These workers are paid for a day’s work at good rates to carry out these anti-union activities. The same is being done by foremen, who have transferred many members from their usual tasks, bringing about drastic reductions in their wages, with the result that some of them were compelled to leave the trade union. On
55. 3 December 2004, SITRAP sent a note to the head of the Labour Relations Department requesting a meeting to discuss the situation that had arisen on the plantation. A conciliation meeting was held on 22 December 2004, but the enterprise failed to implement what little was agreed upon at the meeting during the following weeks and months. Persecution of trade union members is continuing on the plantation, and therefore many have preferred to withdraw from membership or leave the enterprise. There are at present only three members left, who suffer discrimination and are constantly verbally insulted by their supervisors and the manager. Moreover, they are assigned more arduous and more difficult tasks for lower wages.
56. VI. Blacklists
57. 476. Repression of union members in the banana sector is so severe that once they have joined a trade union and been dismissed they are generally not able to find another job in other banana enterprises. These companies exchange information on membership and keep a list of all unionized workers. Members of trade unions are systematically reported to other enterprises in the banana and related sectors, such as pineapple exporters, so that they are not given another job or their employment is frozen. The same occurs when a worker files a complaint with the courts. Trade union member Samuel Contreras Carrión, who was dismissed from Cobal, has tried to find a job on other plantations and been told that he has been blacklisted.
58. B. The Government’s reply
59. 477. In its communication of 21 December 2006, the Government states that it is serious in its statements and that it is committed to seeing them through in the time period allowed it by the democratic, open and participative regime, subject to those procedures, laws and rules ensuring effective action. The complaints contain rash allegations of violation of trade union rights which are not backed by the necessary evidence in order to exercise the right to a legitimate defence. In this regard, the Government does not share the interest of the complainant organizations in seeking recourse to this international organization to express their opposition to the prevailing rule of law and legality without further justification, and with the sole intent of increasing their chances of winning the action by taking it to an international level. The complainant organization puts forward (in a disorganized fashion) a series of observations that have been examined by the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations in their periodical comments with regard to the application of Convention No. 98 and Case No. 2104 which involves, among other things, the issue raised by the complainants with regard to the use of a plea of unconstitutionality against collective agreements in the public sector. For this reason, the Government of Costa Rica requests that all of its arguments concerning the application of Conventions Nos 87 and 98 and its efforts to ensure the effective application of those instruments be compiled.
60. 478. Under the political Constitution, the Government is elected by the people, is representative, periodical and responsible. It is exercised by three distinct and independent authorities: the executive, the legislative and the judicial authorities. None of the authorities may delegate the exercise of functions attributed to them. Against this background, the Constitution states that public officials are merely trustees of authority and cannot assume powers which have not been bestowed upon them by law. The complainant organizations appear to disregard this last point. In Costa Rica, the administrative and judicial procedures end when all stages, both administrative and judicial, have been completed, and not before. Omitting part of the due process of law established in the legislation, be it administrative or judicial, is tantamount to ignoring the Constitution. The complainant organizations contribute to this lack of respect, as they seek recourse to this body without having previously exhausted the procedural instruments provided for in substantive law, which amounts to improper use of the bodies of the ILO.
61. 479. In this regard, the Government of Costa Rica states that it is more than willing to resolve administrative and judicial proceedings concerning allegedly unfair labour practices such as those referred to by the complainants, through the definition of reasonable policies protecting the rights of unionized workers, in accordance with the constitutional guarantees of due process and legitimate defence. As can be seen from the report of the National Directorate of Labour Inspection, a body within the Ministry of Labour and Social Security which is responsible for ensuring effective compliance with social and labour legislation, without attempting to impose measures falling within the competence of courts of law or of representatives of the banana enterprises referred to in the case in question, each of the cases has been handled in accordance with the law.
62. 480. The Government recalls that, by virtue of the rule of law prevailing in the country,
63. article 153 of the political Constitution provides that the judicial authority, in addition to its other constitutional functions, shall hear civil, criminal, commercial, labour and administrative cases, irrespective of their nature or the status of the persons involved, to reach final conclusions and to execute their judgements with the assistance of the law enforcement forces if necessary. In accordance with the principle of separation of powers, the Government states that it had no interest whatsoever in refusing to mediate in accordance with the law, much less in stopping mediation, with regard to the situations referred to by the complainant organization.
64. 481. This is clear from the detailed report issued by the National Labour Inspection Directorate, including the instructions issued to hold the necessary inspections on site, in order to establish the facts and proceed in accordance with the law. In this respect, it is important to point out with regard to the administrative proceedings for the reinstatement of a trade union official, that, aware of the need to improve the trade union protection provided for in the labour legislation, the Executive has submitted to the Legislative Assembly a draft amendment to the chapter on trade union protection of the Labour Code, which is currently on the parliamentary agenda under file No. 14676. These amendments are intended to expand the legal protection of unionized workers and workers’ representatives in order to strengthen and guarantee the right to organize of Costa Rican employees, as well as the free exercise by trade union officers of their representative functions.
65. 482. Unions are thus afforded the opportunity to give their opinion concerning the formulation and application of government policies which could affect their interests. Unions are also given a major role during conciliation procedures and economic and social collective disputes. The scope for action by unions and their representatives is thus enlarged. In addition, the draft amendments to the Labour Code establish a procedure which must be observed by every employer prior to a justified dismissal; failure to do so will result in the dismissal being null and void. In that case, the worker would be able to seek reinstatement with entitlement to unpaid wages. An accelerated judicial procedure is also being introduced which can be used by both union leaders and members in the event of dismissal for reasons linked to their union activities, and which would address the comments concerning the slowness of procedures in cases of anti-union discrimination and the need to expand legal protection for union representatives.
66. 483. Another innovation which will be made by the reform is the introduction of joint liability of unions, federations and confederations of workers or employers for damages and prejudice that they have caused through tortious conduct (duly provided for under the legislation). The proposed reform thus aims to include all the situations relating to freedom of association which occur in practice by establishing special protection and legal security for persons exercising the fundamental right to organize.
67. 484. In addition, and in keeping with the wish to ensure that judicial procedures are flexible and swift, the Government reports that a Bill to reform labour proceedings (file No. 15990) is currently on the parliamentary agenda. This Bill is the result of work carried out involving magistrates and principal and alternative magistrates of the Second Chamber of the Supreme Court of Justice, labour judges, experts in labour law, officials of the Ministry of Labour and Social Security and representatives of employers’ organizations and the trade union sector. All the social partners contributed to this proposal, which seeks to regulate the issues it addresses in a balanced fashion, taking account of the varied interests at stake, and to stand as an effective tool for the resolution of the various conflicts which arise within the world of work.
68. 485. Important aspects of the Bill relating to issues that come under “special labour jurisdiction” include the fact that it resolves various questions, such as those brought up by the complainant organization with regard to the slowness of procedures in trade union cases. It should be pointed out here that a special procedure for the protection of persons with specific protected status and respect for due process has been established. This is an extremely expeditious procedure, similar to a claim for the enforcement of constitutional rights (amparo constitucional), involving the automatic, but revisable, suspension of the application of the decision. The following categories of individual are covered by this procedure: pregnant or breastfeeding women, workers enjoying trade union immunity, victims of discrimination and, more generally, any public or private sector worker upon whom any type of immunity has been bestowed through law or through a collective instrument. Furthermore, collective procedures have been simplified, and a special process has been established for the official designation of situations as strikes.
69. 486. It should be borne in mind that section 422 of the Bill lays down the principle of giving priority to oral hearings. The principle of oral proceedings humanizes the procedure and allows the application of other principles such as immediacy, specialization and promptness. Accordingly, and owing to the significant joint effort made by the executive and judicial authorities and the main social partners, with guidance provided through the technical assistance of the ILO, the Government of Costa Rica hopes that, once it has been analysed and studied by the Legislative Assembly, the Bill will become law in the Republic in the near future. The Government therefore regrets the number of subjective observations issued by the complainant organization with regard to the case in question and, in order to contribute to the analysis of the complaints being carried out by this international body, it fully associates itself with the reports issued by the Director-General of Labour Inspection concerning the cases in question. In addition, in order to reach a solution, the Government forwards the comments received from the representatives of the enterprises referred to in the complaint.
70. Report of the National Directorate and
71. General Labour Inspectorate
72. 487. Concerning the complaint presented by SITAGAH, SITRAP, SITRACHIRI and COSIBA CR, containing allegations of violations of trade union rights in several enterprises in Costa Rica, I inform you of the following:
73. (1) After a careful examination of the complaint, which contains a basic and general expression of discontent by the complainants against the Costa Rican legal system and the manner in which trade union violations are handled, owing to cumbersome proceedings and inefficiency of the administrative and judicial authorities, despite the fact that a number of measures have been taken, including constitutional rulings
74. Nos 5000-93, 3421-94, 3869-94, 712-95, ratification of international Conventions by our country, the adoption of instruments such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the American Convention on Human Rights, and at the administrative level, the promulgation in 1943 of the Labour Code, the Organic Act concerning the Ministry of Labour and Social Security, and others.
75. (2) Specifically, the complaint states that in many cases the legislation is obsolete and ineffective, given that in practice the enterprises against which the complaint was presented find ways of evading compliance with the decisions of both the administrative and the judicial authorities. In addition, they cite the absence of up to date legislation which would provide more rapid protection of trade union rights to workers in Costa Rica. The report goes on to describe in detail the procedure provided for in legislation in cases of unfair labour practices (anti-union persecution).
76. In addition, the National Director and General Labour Inspector provides the following information: Anti-union practices at the banana plantations in Cahuita and Tortuguero. […] Report No. DRHA-0717 of the Chief of Huetar Atlántica Region states the following: in the present case, in July 2004, a conciliatory hearing was held at the cantonal office of Pococí between representatives of the Desarrollo Agroindustrial de Frutales enterprise and of the SITRAP trade union. At that hearing, the employers’ representatives did not recognize the trade union committee. In August 2005, the Pococí office summoned the enterprise and informed it of complaints that had been filed. On 20 February 2006, a hearing was held between the parties who agreed, among other things, to reintegrate a worker who had been dismissed.
77. 488. The Government adds various reports presented by enterprises mentioned in the complaint.
78. Report of the General Manager of the Santa María
79. del Monte, SA agricultural enterprise
80. – It is true that the enterprise carried out termination of employment with full (not partial) payment of benefits, affecting all of the workers on the plantation; their employment benefits were paid in full. The reason for this was explained. Given the difficult situation in the banana sector, we had to re-engineer the workforce and adjust the number of workers to the level necessary to carry out the work. The workforce reduction was based on each worker’s productivity – man or woman, Costa Rican or foreign. A total of 38 jobs were eliminated out of a workforce of some 140–145, without determining whether or not the workers were unionized. I am sure that the vast majority were not, and that at least 80 per cent were Costa Ricans. We had to change working conditions at the enterprise. This is an employer’s right guaranteed by the political Constitution as part of the right of private property and control of the means of production. During the lay-off no distinction was made between unionized and non-unionized workers, or between members and non-members of solidarist associations. After the lay-offs, the enterprise hired the workers required according to the new re-engineering parameters and introduced a number of employment benefits that had not existed before, as productivity and punctuality incentive, as well as the payment of statutory benefits twice a year. This payment of termination benefit has transformed an expected entitlement into an acquired right of workers, and a long-standing dream of the Costa Rican workers has thus come true. The dismissed workers include those referred to, as well as many others. Four of them, César Antonio Amador Benítez, Manuel López Muñoz, Martín López Ortega and Noel Antonio Leiva Martínez, have instituted judicial proceedings against the enterprise (file No. 05-001002-0166-LA). While it is true that the migration authorities, in the exercise of the authority vested in them by law, detained some illegal migrant workers who were employed on the plantation, the rumour which attributes this to my doing is false. The Migration Act clearly stipulates the obligation of the police authorities to detain illegal workers in our country. Concerning the repeated accusations of persecution by management in the complaint, as well as those of lack of occupational safety and health measures, adequate equipment, irrigation work, bathrooms, etc., I cannot comment on this in the absence of information in the complaint giving specific cases, names and dates, which means that the company I represent cannot refer to these in order to exercise its right of defence against these unfounded accusations.
81. Desarrollo Agroindustrial de Frutalas SA enterprise
82. (1) Relations between the enterprise and the trade unions SITRAP and SITAGAH stem from the fact that some workers on our plantations are members of these trade unions; SITRAP currently has 104 members on various plantations and SITAGAH has 39, out of a total workforce of 3,441 on the plantations, and the two unions thus account for some 4.15 per cent of the workforce on the plantations. The vast majority of the workers support their permanent workers’ committees, which they elected freely and democratically, and which for some years now have negotiated direct arrangements under sections 504–506 of the Labour Code. The Ministry has all the relevant records, since they have been approved in the Ministry offices which are responsible for filing and registering them. Despite the very low representativeness of these trade unions in the workforce of the company I represent, we have negotiated a number of conciliation agreements signed in your Ministry, which are attached, dealing with issues such as recognition of the right to join and form a trade union, freedom of movement and the right of assembly – provided that work is not obstructed – and complaints on several cases, all in accordance with ILO Conventions Nos 87, 98 and 135 and Recommendation No. 143, which have force of law in our country.
83. (2) We have always responded to the different complaints presented by the trade unions to the enterprise on a number of occasions; some have been resolved and others have not, as is normal in worker–management relations, whether individual or collective, given that the trade unions often attempt to disregard the employer’s authority and disciplinary power, and the worker’s concomitant duty of subordination, which are the fundamental elements of the individual contract of employment, as recognized in labour law and stipulated in section 18 of the Labour Code.
84. (3) The SITAGAH trade union has even filed a complaint against the enterprise with the Heredia Labour Inspectorate for alleged anti-union persecution and unfair labour practices; the complaint was shelved by mutual agreement between the parties, which shows that we have always negotiated on the issues raised at our workplaces and involving trade union members. This agreement, along with others, which are referred to in official records deposited with your Ministry, contradict the complaint in question, which we believe is an attempt to damage not only the image of the enterprise – which exports most of its bananas to Europe, where these are highly sensitive issues among buyers – but also that of our country, as a nation committed to the rule of law in which laws, and not power or brute force, prevail.
85. (4) It is not true that the company I represent violates the Conventions on freedom of association applicable to us. We deny most emphatically that there is the level of conflict alleged in this complaint, which is intended to give weight to a complaint that lacks substance. Trade unions cannot only engage in collective bargaining unless their membership reaches 33 per cent of the workforce, as provided in section 56 of the Labour Code; until then, the free (non-unionized) workers avail themselves of the right afforded under ILO Convention No. 135 to appoint their representatives in the enterprise (referred to in our legislation as “permanent workers’ committees”) and to negotiate collective settlements with them (referred to as “direct arrangements”) governing collective relations at the workplace. With their very small membership, trade unions cannot claim to have the same rights as the committees, which enjoy massive support among the workers. Our labour legislation does not regulate, and hence does not recognize, the so-called “grass-roots committees” which the trade unions seek to impose on the enterprise. The trade unions are using this as a means of replacing or opposing the “permanent workers’ committees”; ILO Convention No. 135 refers to both: when there is a representative trade union, the representatives are trade union representatives (the requirement for representativeness being 50 per cent of the workforce in our context) and, where the membership is not large enough (which is the case here) it is for the majority, i.e. the non-unionized workers, to set up permanent committees. This has been a permanent source of disagreement with the complainant organizations based on the fact that the enterprise is backed by the law. Representation of members is expressly regulated by section 360 of the Labour Code.
86. (5) The case of Ms Veneranda Vaquedano Oliva and Ms Modesta Barrera González was resolved several months ago. The situation of Ms Modesta Barrera González was resolved as follows, as indicated in the record of the meeting signed at the Ministry at
87. 9 a.m. on 3 October 2006: (a) “There have been no reprisals or persecution of any kind, to the extent that Ms Modesta Barrera González, at her request, will be assigned tasks commensurate with her physical capacity and thus, as of 4 October, will be assigned the task of preparing ties and labels in the same packing plant, since she does not wish to be transferred to another packing plant. We also undertake to speak to her foreman,
88. Mr Sergio Cerdas, about his behaviour towards Ms Modesta Barrera González.”
89. (b) Previously, in a record signed on 16 August 2006, paragraph 2, concerning a situation that arose when Ms Modesta Barrera presented two medical certificates from the Ebais (health centre) on the same day, which is evidently irregular, it was ascertained which of the two was valid and hence “no action will be taken in this case”. This could constitute serious misconduct, as it involved fraud, and therefore it was investigated.
90. (c) Paragraph 15 of the record notes, in regard to the accommodation assigned to that worker, that “the accommodation was assigned by direct arrangement between
91. Ms Barrera and the area manager. The trade union states that the enterprise acted in good faith when it assigned the accommodation”.
92. (6) Concerning the dismissal of Mr Heriberto Guido González, the records show that he had been working on the Islas plantation since 21 May 2001. On 23 October 2004 he was dismissed for being absent on 3, 13 and 28 August 2004, in accordance with
93. section 81(g) of the Labour Code, but was reinstated on 20 December 2004 and his record of employment recognized by the enterprise. It was agreed to reinstate the worker, with payment of his unpaid wages since 23 October and the outstanding
94. 2003–04 bonus, which would be paid – as was in fact done, on 30 December. All of the above records were signed by representatives of the enterprise and the trade union in the Ministry’s labour relations department.
95. (7) The case of Mr Larry Zavala, which was pending before the court, was settled by agreement between the parties, as recorded in the file, which was closed.
96. (8) Mr Abel Jarquín González, referred to as a trade union “representative”, is no longer working in the enterprise as he resigned voluntarily. All of the attached records refer to the presence of Mr Jarquín González, who is included among the signatories, and we therefore reject this accusation.
97. (9) In the case of Mr Germán Enoc Méndez, a conciliation agreement was reached in court.
98. Chiquita Brands Enterprise – Cobal Division and
99. Chiquita Brands – Chiriquí Land Company
100. – Mr Teodoro Martínez: disciplinary proceedings were brought, and sworn statements obtained from witnesses testifying that Mr Martínez had insulted his immediate supervisor […] in front of other fellow workers. This was corroborated by a unionized worker who made a sworn statement in the presence of a public notary. Disciplinary proceedings were brought against Mr Martínez, who had ample opportunity for defence, and there was no doubt that he had committed the offence of which he was accused.
101. – Mr Amado Díaz Guevara: disciplinary proceedings were instituted against Mr Díaz for having failed to remove the shoots from 468 plants and informed his immediate supervisor that he had already completed the plot; in other words he had falsely claimed to have finished his work. There are documents which he signed and in which he admitted the fact (an on-site inspection duly signed by him and other workers), as well as statements of day labourers and management staff confirming both facts. Mr Díaz Guevara was given ample opportunities for defence through a disciplinary procedure and was informed sufficiently in advance to enable him to take appropriate steps and exercise fully his right to defence.
102. – Mr Pedro Calero Ruiz: at the time of his dismissal there was no official document attesting to his status as a trade union representative, as the trade union had not communicated that fact to any representative of the company. Despite this, the company voluntarily and spontaneously reinstated him on the plantation where he worked and awarded him unpaid wages without having received any court ruling or administrative decision to that effect. He is currently still a member of the trade union and freely engages in trade union activities, and works in the packing plant of the Oropel plantation. In the case of Mr Evaristo Chavarría, the reduction in his wages was not due to any intention by the enterprise to bring about any deterioration in his remuneration, but resulted from an adjustment of working time to the legislation in force, which meant that he earned less by working only eight hours a day than if he regularly worked overtime. It has already been explained to SITAGAH on a number of occasions that overtime is not an acquired right of the workers, but is intended to meet the occasional needs of the enterprise, and the workers are expected to make an extra effort, irrespective of whether they are members of a trade union, as and when required; when it is not required the enterprise cannot create it artificially to cater to the workers’ wishes. In the case of the bacheros, the workers who are in charge of looking after the bachelor quarters on the Sarapiquí plantations, a total of nine workers were affected by the adjustment of hours of work to eight hours a day, of whom only two were trade union members.
103. – Mr Juan Francisco Reyes: this worker presented a document from a state clinic belonging to the Costa Rican Social Security Fund (CCSS) to justify having been absent on a Saturday, but the document had been altered by adding his name under that of the CCSS; in order to ascertain the truth, a letter from the CCSS was obtained as evidence, certifying that the document had been tampered with by someone outside the Fund and was therefore false. Mr Juan Reyes was dismissed for using a false document to justify absence from work, following disciplinary proceedings in which he had ample opportunity for defence.
104. – Mr Ricardo Peck Montiel: was dismissed for just cause in accordance with section 81, paragraph I of the Labour Code, read together with sections 19 and 71, paragraph (b) of the Code, based on evidence obtained through due process, in which the general secretary of SITAGAH actively participated. The evidence concurred in showing that
105. Mr Ricardo Peck had repeatedly failed to comply with the specifications issued by the enterprise concerning protection of fruit. In addition, he had a previous record of poor work performance and had not shown any interest in improving his work.
106. – In all of the cases of dismissal, the workers were previously informed and given a description of the offences attributed to them and afforded an opportunity for defence, including bringing in and interviewing witnesses and examining the documents, and all of the time limits and procedures laid down by the law were observed, account being taken also of ILO Convention No. 158 with regard to the imposition of disciplinary measures and the minimum considerations to be met from the standpoint of international labour and human rights law. All of the trade unions were given the necessary space and attention with a view to finding joint solutions with the enterprise to solve the union members’ problems, in accordance with the principle of good faith which should prevail under the Regional Agreement, and thus they participated freely and transparently in all of the abovementioned procedures.
107. – Judicial decisions: concerning case No. 02-000616-0166-LA of the worker Leopoldo Alvarez Alvarado, the company fully implemented the operative part of the judgement, as shown by the proof in our possession.
108. – Concerning case No. 00-000031-0166-LA of the worker Reinaldo López González, company representatives and the complainant’s lawyer are currently in the process of drawing up a document that will satisfy the complainant’s claims, to be presented in the very near future to the competent judicial authority, along with a request that the case be closed.
109. – Concerning case No. 98-003283-0166-LA of Mr Manuel Murillo de la Rosa, it is still pending before the court, and no final judgement has been handed down, and thus there has been no non-compliance by the company in this case either.
110. – The company does not keep “blacklists” of any kind, given that this is an illegal practice according to the internal legislation under the Regional Agreement, as well as our Code of Conduct, as such lists encourage discrimination on grounds of membership in a trade union. In the specific case of Mr Samuel Contreras Carrión, as may be seen from the record drawn up in the Ministry of Labour and referred to in the complaint, there have been no assertions by any representative of a company other than ours expressly and conclusively stating that the worker allegedly affected could not obtain a job in the area because of an instruction or direct recommendation on the part of our company to that effect, and thus this complaint is completely vague and unfounded.
111. – In the case referred to in the complaint, an examination of the specific cases has shown that the company has never “invented” disciplinary offences, but that we have always acted in accordance with the law and with justice when imposing discipline in an equitable and disciplined manner, without any consideration as to whether the worker concerned belongs to a trade union.
112. – The Department of Labour Relations and its accredited representatives on the plantations maintain an attitude of respect and conciliation with regard to the workers and their representatives, hence their participation in all processes having to do with the employment relationship, not only in the area of disciplinary measures, but also in regard to negotiations with workers, the organization of social activities such as parties and celebrations, the promotion of sports activities among employees and prompt and personal attention to workers who have any doubts or concerns regarding their labour rights.
113. – Concerning the collective dispute submitted by trade union members and the complaints concerning Chiriquí Land Company, a subsidiary of Chiquita Brands, the court proceedings filed against the company were dismissed and closed by the Labour Court of the Province of Limón; this decision was accepted by the trade union, since it did not appeal against it, given that the judicial authority, having carefully examined all of the evidence submitted both by the company and by the trade union, concluded that there was no dispute between the company and the workers and hence no violations of rights requiring an investigation. In any case, any dispute that might have existed was duly resolved through negotiation of the system of work organization known as Caja Integral (Integral Box), which was freely and voluntarily agreed upon between the SITRACHIRI trade union and the company in a cooperative negotiation process in which the common and individual interests of the trade union, the workers and the company were met. In addition to putting a final stop to any labour dispute between the company and the trade union and any related complaint, this system has brought about an obvious and tangible increase of up to 40 per cent in the earnings of the workers of the Chiriquí Land Company and a significant reduction in working time, which benefits all the parties, as it is conducive to a sustainable improvement in labour relations, which is a key aspect of our company’s philosophy in regard to labour relations involving all of our workers.
114. Conclusion
115. The complaint presented contains a number of vague assertions and errors which we reject categorically as they are inaccurate and devoid of truth. There has been no persecution, coercion, discrimination or threats of any kind against the workers, and there is frank, open, constant and fluid dialogue between SITAGAH and representatives of the company, and thus its members are always granted leave to attend meetings, and union representatives’ complaints are heeded and they are received in meetings in order to seek solutions to their problems. We can prove that over 50 meetings were held during the year with the different trade unions, at which we have addressed issues of common interest. Moreover, we have respected the position of SITRACHIRI as the sole representative of the workers in Chiriquí Land Company, established in accordance with the law, and have endeavoured to involve it in the changes and improvements to everyone’s benefit, as shown by the negotiations for the abovementioned “Integral Box” system of work organization, as well as other negotiations that took place in a peaceful and harmonious manner.
116. 489. The Government affirms that its actions clearly show that it explicitly deplores any anti-union practices and does not hesitate to apply the full rigour of the law in cases in which such illicit acts are proven to have occurred. In the light of the arguments of fact and law set forth above, it requests the Committee to reject in full the complaint presented by the banana trade unions of Costa Rica: SITAGAH, SITRAP, SITRACHIRI and
117. COSIBA CR.
118. 490. In its communication of August 2007, the Government reiterates its observations made in December 2006, and encloses a report from the Desarollo Agroindustrial de Frutales SA enterprise which states the following:
119. In my capacity as legal representative of Desarrollo Agroindustrial de Frutales SA and at the request of my client, permit me to reply as follows to the complaint presented to the ILO by the trade unions SITRAP and SITAGAH against the company I represent:
120. (1) Both trade unions have members at the workplaces (plantations) belonging to my client; we have attended periodical conciliation meetings with these trade unions at the offices of this Ministry, with mediation by the Labour Relations Department, whose officials in San José, Guápiles, Siquirres, Limón and Heredia are best placed to attest to the fact that we have never refused to engage in dialogue with these trade unions concerning their members’ problems.
121. (2) In our note addressed to you on 21 November 2006, we gave detailed explanations on this subject, with documents attached. The complaint contained in the new communication is directed at the Ministry rather than the company I represent. The plantations belonging to my client have permanent workers’ committees appointed by free, direct and democratic ballot by the majority of the workers, which are registered with the Labour Relations Department of the Ministry of Labour; these committees are authorized by their constituents to sign direct arrangements in accordance with sections 504 et seq. of the Labour Code; these arrangements are also registered with the Ministry.
122. (3) The complainant trade unions have not met the membership requirement of 33 per cent of the workforce stipulated in section 56 of the Labour Code in order to submit proposals for collective bargaining to the enterprise and hence have not achieved representativeness; whereas the permanent workers’ committees are supported by over 90 per cent of the workers. This is a problem that concerns the workers alone, in which the enterprise does not interfere. The complaint is against the appointment of a member of the permanent workers’ committee of the Chira plantation (which includes four plantations or workplaces), belonging to my client.
123. (4) According to the attached documents, which are in the possession of the Ministry, the problem is as follows:
124. (a) On 10 September 2006 a worker was appointed as a member of the committee by a workers’ assembly held by the trade union, in an act of open interference with the representativeness of the committees, and attended only by the workers of the Chira 2 plantations and held on a Sunday, in the absence of the majority of the plantation workers, bearing in mind that the three-member committee is to represent the four plantations (1, 2, 3 and 4).
125. (b) In response to this appointment, bypassing the majority of workers, a new assembly was held on 18 September 2006 which approved the following workers as permanent members of the committee: Mr Dennis Boniche Rodrígues,
126. Mr Heymar García Villegas and Mr José Dolores Ponce Jiménez.
127. (c) A new assembly, held on 11 December 2006, appointed the worker Freddy Méndez Cuevas to the committee.
128. (d) The enterprise was summoned to a conciliation meeting on 12 January 2007 on this issue at the regional office of the Ministry of Labour in Guápiles. The enterprise was represented by Mr Luís Cardona Meza Plascencia and Ms María Lourdes Valverde, officials responsible for labour relations, and the undersigned as legal representative and labour adviser of the enterprise; the workers Rafael Quesada Esquivel, Dennis Boniche Rodríguez, José Dolores Ponce and Heymar García Villegas attended as members of the permanent committee of the Chira plantations (1, 2, 3 and 4). The trade union submitted a statement in a separate document.
129. (e) As is clear from the record, the enterprise submitted a separate statement from that of the committee, confirming its respect for the workers’ right to elect their representatives freely and democratically, without interference by the employer. The committee confirmed its approval of the last assembly that had been held.
130. (5) The enterprise’s position in regard to this complaint is that it is an internal affair concerning the workers in which it should not participate or take a stance either in favour or against. We do believe that the Ministry should, from a legal standpoint, respect the last election held in keeping with the rules for this type of collective decision, and that the trade union should refrain from interfering with the appointment, actions and functions of the committees, and vice versa.
131. (6) Concerning the investigations or procedures carried out by the Ministry, these are legal procedures which must take their normal course in each case; the company I represent has always been respectful of these procedures, in defence of a democratic country which guarantees due process (article 41 of the political Constitution). The most recent administrative proceedings concerning a complaint of alleged anti-union persecution of SITRAP against my client culminated in a decision in favour of the enterprise,
132. No. RHA-0643-2006, issued at 11 a.m. on 9 August 2006 at a conciliation meeting held with the trade union, which attests to the fact that we do respect freedom of association.
133. (7) In regard to the vague accusation, without giving names or specific facts, making it impossible to build an adequate defence, of denial of access to the premises to trade union leaders, it is not true that the company did not allow access to a trade union leader, as provided in section 360 of the Labour Code and ILO Conventions Nos 87, 98 and 135. At the conciliation meeting with SITRAP referred to in item (6) above, held at the regional office of the Ministry in Gúapiles on 10 March 2006, paragraph 1 on “access to the plantation” proposed a procedure to allow access to trade union leaders and up to three other officials. The complaint can thus be considered to be settled, as it is no longer timely or relevant. The documents of the case are attached. The SITRAP and SITAGAH trade unions were thus not acting in good faith when they presented a complaint on these issues to the ILO Committee on Freedom of Association in October 2006, when they had been settled through conciliation with the enterprise since February 2006.
134. (8) Conciliation was also reached on disagreements with SITAGAH in a complaint filed with the office of the Ministry in Heredia on 11 April 2006, by decision No. DNI-178-2006 issued by the Ministry at 9 a.m. on 29 May 2006, thus closing the case.
135. We thus reject all the accusations; the company I represent is a serious and responsible enterprise which abides by the legislation in force and, through a considerable entrepreneurial effort, provides employment to over 5,000 workers and exports its bananas to the benefit of the country and its inhabitants.

C. The Committee’s conclusions

1. 491. The Committee observes that in this case the complainant organizations allege the slowness and ineffectiveness of administrative and judicial procedures in cases involving anti-union practices, the impossibility of exercising the right to strike given that most strikes are declared illegal by the judicial authority, discrimination in favour of permanent workers’ committees to the detriment of trade unions and numerous acts of anti-union discrimination in enterprises in the banana sector.
2. 492. As regards the allegations concerning the slowness and inefficiency of administrative and judicial procedures in cases involving anti-union practices, and the impossibility of exercising the right to strike given that most strikes are declared illegal by the judicial authority, the Committee notes that the Government states that: (1) it is more than willing to resolve the administrative and judicial proceedings concerning alleged unfair labour practices such as those referred to by the complainant organizations, through the definition of reasonable policies protecting the rights of unionized workers, in accordance with the constitutional guarantees of due process and legitimate defence; (2) by virtue of the rule of law prevailing in the country, article 153 of the political Constitution provides that it shall be the responsibility of the judicial authority to examine civil, criminal, commercial, labour and administrative cases, irrespective of their nature and the status of those involved, to reach final conclusions and to enforce its rulings; (3) concerning the proceedings to reinstate a trade union official, the executive authority, aware of the need to improve trade union guarantees, has submitted to the Legislative Assembly draft amendments to the chapter on trade union protection of the Labour Code, which are currently on the parliamentary agenda under file No. 14676, the intention being to expand legal protection of unionized workers and workers’ representatives; (4) the intention is to establish a procedure that must be observed by employers prior to justified dismissal, failing which the worker would be able to seek reinstatement with entitlement to unpaid wages; an accelerated judicial procedure would be introduced which could be used by trade union officials and members in the event of dismissal for reasons linked to their union activities, which would address the comments concerning the slowness of procedures and the need to expand legal protection for union representatives; (5) a Bill to reform labour proceedings is currently being examined (No. 15990), which is the result of work carried out involving magistrates, labour law experts, officials of the Ministry of Labour and Social Security and representatives of employers’ organizations and the trade union sector, and which provides for a special procedure for the protection of persons with specific protected status, which is extremely expeditious; it also simplifies collective procedures and establishes a special procedure for the designation of strikes.
3. 493. The Committee notes with interest the Government’s statement that it is more than willing to resolve administrative and judicial proceedings concerning allegedly unfair labour practices such as those referred to by the complainants, through the definition of reasonable policies protecting the rights of unionized workers, in accordance with the constitutional guarantees of due process and legitimate defence. However, the Committee emphasizes that the measures and bills which it mentions have failed to materialize after several years. Recalling that the Committee of Experts on the Application of Conventions and Recommendations (CEACR) has, for several years, referred to the slowness and ineffectiveness of administrative and judicial procedures in cases of anti-union practices, the Committee, like the CEACR, urges that the various bills currently in progress will be adopted in the very near future and that they will be in full conformity with the principles of freedom of association.
4. 494. In regard to alleged discrimination in favour of the permanent workers’ committees to the detriment of the trade unions (for example, the minimum membership requirement in order to be established, the requirement to be a national in order to be a member of the executive committee, formal requirements for forming a trade union as opposed to a simple note to the Ministry of Labour in the case of the permanent committees, direct arrangements concluded with employers by the permanent workers’ committees, and the hugely disproportionate numbers of direct arrangements compared to collective agreements, etc.), the Committee recalls that Article 5 of Convention No. 135 provides that where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures shall be taken, wherever necessary, to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned or their representatives and to encourage cooperation on all relevant matters between the elected representatives and the trade unions concerned and their representatives. Noting that the Government has not communicated its observations in this regard, the Committee requests it to send them without delay.
5. Allegations concerning acts of anti-union discrimination in banana sector enterprises
6. Case of Chiquita
7. Chiquita – Cobal
8. 495. The Committee observes that the complainant organizations allege that the enterprise has failed to comply with a framework agreement in which it undertakes to respect freedom of association and, in particular, dismissed the following trade union officers for anti-union reasons: Mr Teodoro Martínez Martínez, Mr Amado Díaz Guevara (a member of the Committee on the Implementation of the Regional Agreement between the IUF/COLSIBA and Chiquita), Mr Pedro Calero Ruiz (the enterprise undertook to cancel the dismissal but has not done so), Mr Vicente Rodríguez Cubero, Mr Juan Francisco Reyes and Mr Ricardo Peck Montiel; that it reduced Mr Evaristo Chavarría Campos’ wages by 30 per cent, and that the enterprise failed to implement court rulings ordering reinstatement of trade union officials Mr Reinaldo López González and Mr Manuel Murillo de la Rosa, as well as a ruling ordering it to cease harassment and persecution of trade union official Mr Leopoldo Alvarez Alvarado and to pay him his unpaid wages.
9. 496. In this regard, the Committee notes that the Government forwards the following information sent by the enterprises:
10. – Mr Teodoro Martínez Martínez. Disciplinary proceedings were brought and two sworn statements obtained from witnesses testifying that he had insulted his immediate supervisor. During the disciplinary proceedings he was given ample opportunity for defence and there was no doubt that he had committed the offence of which he was accused;
11. – Mr Amado Díaz Guevara. Disciplinary proceedings were brought for having failed to remove the shoots from 468 plants and falsely claiming to have completed his work. He admitted this in a document. During the disciplinary proceedings he was given ample opportunity for defence.
12. – Mr Pedro Calero Ruiz. At the time of his dismissal there was no official document attesting to his status as a trade union representative. He was reinstated and awarded his unpaid wages. He is still a trade union member and freely engages in trade union activities.
13. – Mr Juan Francisco Reyes. He was dismissed for having used a falsified document to justify absence from work. Disciplinary proceedings were brought, during which he was given ample opportunity for defence.
14. – Mr Ricardo Peck Montiel. He repeatedly failed to comply with the specifications issued by the enterprise on the protection of fruit. He had a previous record of poor work performance and had not shown any interest in improving.
15. – Mr Evaristo Chavarría Campos. His wages were reduced owing to an adjustment of hours of work to the legislation in force; since he now works an eight-hour day he earns less than when working regular overtime. Overtime is not an acquired right. Nine workers were affected by the adjustment of hours of work to eight hours; only two of them are trade union members.
16. – Mr Leopoldo Alvarez Alvarado. The operative part of the judgement was fully implemented by the company.
17. – Mr Reinaldo López González. Company representatives and the worker’s lawyer are currently working on a document to satisfy the complainant’s claims, which will soon be submitted to the judicial authority with a request that the case be closed.
18. – Mr Manuel Murillo de la Rosa. This case is pending before the court. There has not been a final judgement to execute.
19. 497. In these circumstances, the Committee requests the Government to inform it: (1) whether trade union officials Mr Teodoro Martínez Martínez, Mr Amado Díaz Guevara, Mr Juan Francisco Reyes and Mr Ricardo Peck Montiel have initiated judicial proceedings concerning their dismissals and, if so, of the status of these proceedings; (2) of the grounds for the dismissal of Mr Reinaldo López González and the reasons why the court ruling ordering his reinstatement was not executed, and to send it a copy of the agreement that is to be signed by the enterprise and the worker; and (3) of the grounds for the dismissal of Mr Manuel Murillo de la Rosa and the status of the court proceedings concerning his dismissal.
20. Chiquita – Chiriquí Land Company
21. 498. The Committee observes that the complainant organizations allege that the enterprise failed to apply the eighth collective agreement in force, that the workers held a 24-hour strike that was declared illegal, and that they filed complaints with the courts years ago, without any judgement being handed down, that nine trade unionists were dismissed on
22. 1 September 2004 (Mr Santiago Pineda González, Mr Mauricio Masis Suazo, Mr Julio Bustos Cortés, Mr Juan Ramón Ortiga Salinas, Mr Yeffry Valle Romero, Mr Reinaldo Martínez Arguello, Mr Bayardo López Guido, Mr Hader Palacio Cano and Mr Herminio Méndez Miranda), as well as four trade union members (Mr Lester Quiñónez Mondragón, Mr Jaime Martínez Urbina, Mr José Luis Martínez Chavarría and Mr Juan Martín Franco Muñoz), and that other members were issued warnings for no reason.
23. 499. In this regard, the Committee notes that the Government states that: (1) the judicial proceedings instituted against the company were dismissed and closed by the Labour Court of the Province of Limón; (2) the court decision was accepted by the trade union, since it did not appeal against it, given that the judicial authority, having carefully examined all of the evidence submitted by both the company and the trade union, concluded that there was no dispute between the company and the workers; (3) there are thus no violations of rights requiring an investigation, since in any case, any dispute that might have existed was duly resolved through negotiation of the system of work organization known as “Caja Integral” (Integral Box), which was freely and voluntarily agreed upon between the SITRACHIRI trade union and the company in a cooperative negotiation process in which the common and individual interests of the trade union, the workers and the company were met; (4) in addition to putting a final stop to any labour dispute between the company and the trade union and any related complaint, the new system has brought about an obvious and tangible increase of up to 40 per cent in the earnings of the workers of the Chiriquí Land Company; and (5) there has been no persecution, coercion, discrimination or threats of any kind against the workers, and there is a frank, open, constant and fluid dialogue between SITAGAH and the company representatives, and thus its members are always granted leave to attend meetings, the complaints of representatives are heeded and they are received in meetings in order to seek solutions to their problems.
24. 500. In these circumstances, the Committee requests the Government to inform it whether, in the process of the negotiations which the company says it has conducted with the trade union, it was decided to reinstate the dismissed trade unionists and members and, if not, to inform it of the grounds for the dismissals and whether judicial proceedings have been initiated in this regard.
25. Case of Desarrollo Agroindustrial de Frutales SA enterprise
26. 501. The Committee observes that the complainant organizations allege that there is no possibility of engaging in collective bargaining, and that the enterprise persecutes and discriminates against SITAGAH members. Specifically, they allege: (1) the dismissal of
27. Mr Jorge Luis Rojas Naranjo, Mr Heriberto Guido González (reinstated three months later), Mr Larry Zavala Alvarado (reinstated a year later) and Mr Germán Enoc Méndez; (2) that management said it would do everything it could to get the workers Ms Veneranda Vaquedano Oliva and Ms Modesta Barrera González to leave the trade union; and
28. (3) management has threatened to have the police remove members of the trade union committee who visit workplaces, and there have been verbal attacks on trade union officer Mr Abel Jarquín González.
29. 502. In this regard, the Committee notes that the Government forwards the observations sent by the enterprise, stating that: (1) relations between the enterprise and the trade unions SITRAP and SITAGAH stem from the fact that some workers on its plantations are members of these trade unions; SITRAP currently has 104 members on various plantations and SITAGAH has 39, out of a total workforce of 3,441 on the plantations, and the two unions thus account for 4.15 per cent of the workforce. The vast majority of the workers support their permanent workers’ committees, which they elected freely and democratically and which for some years have negotiated direct arrangements under sections 504–506 of the Labour Code. Despite the very low representativeness of these trade unions in the workforce, negotiations have taken place on issues such as recognition of the right to join and form a trade union, freedom of movement and the right of assembly; (2) the company has always responded to the different complaints presented by the trade unions; some have been resolved and others have not, as is normal in worker–management relations, whether individual or collective; SITAGAH even filed a complaint against the enterprise with the Heredia Labour Inspectorate for alleged anti-union persecution and unfair labour practices, which was shelved by mutual consent between the parties, which shows that it has always negotiated on the issues raised at its workplaces and involving trade union members; (3) trade unions cannot engage in collective bargaining unless their membership reaches 33 per cent of the workforce, as prescribed by section 56 of the Labour Code. Meanwhile, non-unionized workers avail themselves of the right afforded under ILO Convention No. 135 to designate their representatives vis-à-vis the enterprise (referred to in our legislation as “permanent workers’ committees”) and to negotiate collective settlements (referred to as “direct settlements”) governing collective relations at the workplace. With their very small membership, the trade unions cannot claim to have the same rights as these committees, which enjoy the massive support of the workers. Labour legislation does not regulate, and hence does not recognize, the so-called “grass-roots committees” which the trade unions seek to impose on the enterprise, in an attempt to replace or oppose the “permanent workers’ committees”; ILO Convention No. 135 refers to both: when there is a representative trade union, the representatives are trade union representatives (the requirement for representativeness being 50 per cent of the workforce) and, where there are not enough members (which is the case here), it is for the majority, i.e. the non-unionized workers, to set up permanent committees; (4) the case of Ms Veneranda Vaquedano Oliva and Ms Modesta Barrera González was resolved several months ago. The situation of Ms Modesta Barrera González was resolved as follows, as indicated in the record signed in the Ministry at 9 a.m. on 3 October 2006: “There have been no reprisals or persecution of any kind, to the extent that Ms Modesta Barrera González, at her request, will be assigned tasks commensurate with her physical capacity, and thus, as of 4 October, will be assigned the task of preparing ties and labels in the same packing plant, since she does not wish to be transferred to another packing plant. We also undertake to speak to her foreman, Mr Sergio Cerdas, about his behaviour to Ms Modesta Barrera González.”; (5) concerning the dismissal of Mr Heriberto Guido González, he was dismissed on 23 October 2004 for being absent on 3, 13 and 28 August 2004, in accordance with section 81(g) of the Labour Code, but was reinstated on 20 December 2004, with payment of unpaid wages; (6) the case of Mr Larry Zavala Alvarado, which had been pending before the court, was settled by agreement between the parties, as recorded in the file, which was closed; (7) Mr Abel Jarquín González no longer works in the enterprise, having voluntarily resigned; (8) the case of Mr Germán Enoc Méndez culminated in a conciliation agreement in court.
30. 503. In these circumstances, as regards the impossibility of bargaining collectively, the Committee urges the Government to take all steps at its disposal so as to promote collective bargaining between the employers and their organizations on the one hand, and the organizations of workers on the other, in order to regulate the conditions of work in the enterprises concerned. The Committee also requests the Government to send its observations concerning the alleged anti-union dismissal of Mr Jorge Luis Rojas Naranjo and to indicate whether the conciliation referred to in the case of Mr Germán Enoc Méndez’ dismissal involved his reinstatement.
31. Case of Santa María del Monte SA agricultural enterprise
32. 504. The Committee observes that the complainant organizations allege anti-union dismissals of 16 workers, including one trade union official (Mr Inocente Aguilar Gamboa, Mr Armando Torres Espinoza, Mr Manuel López Munõz, Mr Erick Jarquín Castro, Mr Noel Leiva Martínez, Mr Deivis Antonio Amador Benítez, Ms Josefa López Jaimes, Mr César Antonio Amador Benítez, Mr Yanci Barahona Aguirre, Mr Bismarck Rodríguez Martínez, Mr Martin López Ortega, Ms Mireya Gutiérrez Taisagua, Ms Xiomara Aracelly Taisagua Dormos, Mr Alcides Reyes Palacios, Mr Fabio Amador Martínez and Ms Felipa Gutiérrez Taisagua) and the detention of a large number of workers – including some SITAGAH members.
33. 505. In this regard, the Committee notes that the Government forwards information sent by the enterprise which states that: (1) it is true that the enterprise carried out termination of employment with full (not partial) payment of benefits affecting all of the workers on the plantation, who were paid their employment benefits in full; (2) given the difficult situation in the banana sector, the enterprise had to re-engineer the workforce and adjust the number of workers to the level necessary to perform the work; the workforce reduction was based on each worker’s productivity – man or woman, Costa Rican or foreign. A total of 38 jobs were eliminated out of a total workforce of some 140–145, without determining whether or not the workers were unionized or members of solidarist associations; (3) working conditions had to be changed at the enterprise; this is an employer’s right guaranteed by the political Constitution as part of the right of private property and control of the means of production. After the lay-offs, the enterprise hired the workers required according to the new re-engineering parameters and introduced a number of employment benefits that had not existed before, as a productivity and punctuality incentive, as well as the payment of statutory benefits twice a year. This payment of termination benefit transformed what had been an expected entitlement into an acquired right, thus making a long-standing dream of the Costa Rican workers come true; (4) the dismissed workers include those referred to in the complaint, as well as many others. Four of them, Mr César Antonio Amador Benítez, Mr Manuel López Muñoz, Mr Martín López Ortega and Mr Noel Antonio Leiva Martínez, have instituted judicial proceedings against the enterprise; and (5) it is also true that the migration authorities, in the exercise of the authority vested in them by law, detained some illegal migrant workers who were employed on the plantation (the rumour attributing this to the employer’s doing is untrue). The Migration Act clearly stipulates the obligation of the police authorities to detain illegal workers in the country.
34. 506. In relation to the alleged detention of several workers of the enterprise by the migration police, the Committee requests the Government to examine these allegations and send its observations in this regard. Moreover, in regard to the dismissal of 16 trade union members – according to the enterprise, as part of a total lay-off – and subsequent hiring of workers, the Committee does not have enough information to determine whether the dismissals were for anti-union reasons, and therefore requests the Government: (1) to initiate an investigation into the matter and, if such a reason is found, to take steps to ensure, through legal procedures, that the prejudice caused to the members concerned is compensated, including through their reinstatement if they so wish; and (2) to inform it of the total number of workers dismissed at the same time as the trade unionists referred to by the complainants in the Santa María del Monte SA agricultural enterprise, broken down into unionized and non-unionized workers, to keep it informed of the judicial proceedings under way referred to in the information sent by the enterprise, and to inform it whether there were any trade union members among the workers rehired by the enterprise.
35. Cariari and Teresa plantations owned by Banacol
36. 507. The Committee observes that the complainant organizations allege that: (1) from the time at which the authorities of the Cariari enterprise and the Ministry of Labour were informed of the workers’ interest in joining SITRAP, management launched a campaign to get the workers to leave the union and took anti-union discriminatory measures against trade union officials and members; and (2) from the time at which the list of members was communicated to the enterprise, an anti-union campaign was launched on the Teresa plantation, and there are now only three members left, who are discriminated against. The Committee observes that the Government has not communicated its observations in this regard and requests it to send them without delay.
37. Blacklists
38. 508. The Committee observes that the complainant organizations allege that repression of union members in the banana sector is so severe that once they have joined a trade union and been dismissed, they are generally unable to find a job in other banana enterprises, since the companies exchange information on membership and keep a list of all unionized workers (the example is given of union member Mr Samuel Contreras Carrión, who was dismissed from the Cobal enterprise, tried to find a job on other plantations and was told that he had been blacklisted). The Committee notes that the Government has forwarded the information sent by the Chiquita Brands – Cobal Division enterprise, stating that: (a) it does not keep blacklists of any kind, given that this is an illegal practice according to the internal legislation under the Regional Agreement, as well as the company Code of Conduct; and (b) in the case of Mr Samuel Contreras Carrión, as may be seen from the record drawn up in the Ministry of Labour, there have been no assertions by any representative of another company expressly stating that the worker in question could not obtain a job in the area because of an instruction or direct recommendation from the Cobal enterprise. In these circumstances, the Committee requests the Government to take the necessary steps to ensure that an independent inquiry is carried out in the banana sector concerning the allegations that blacklists are being kept, and to keep it informed in this regard.
39. 509. Lastly, the Committee notes with concern that although the Government has sent detailed observations on legislative initiatives in regard to the slowness and ineffectiveness of administrative and judicial procedures, as to the allegations of anti-union discrimination in several enterprises it has merely forwarded information provided by the enterprises. In these circumstances, the Committee expects that the Government will conduct the necessary inquiries and communicate the relevant observations as requested.

The Committee's recommendations

1. 510. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Recalling that the Committee of Experts on the Application of Conventions and Recommendations (CEACR) has, for several years, referred to the slowness and ineffectiveness of administrative and judicial procedures in cases of anti-union practices, the Committee, like the CEACR, urges that the various bills currently in progress in relation to the issues on which the Government provides information, will be adopted in the very near future and that they will be in full conformity with the principles of freedom of association.
   • (b) In regard to alleged discrimination in favour of the permanent workers’ committees to the detriment of the trade unions, the Committee requests the Government to send its observations without delay.
   • (c) In regard to the Chiquita Cobal enterprise, the Committee requests the Government to inform it: (1) whether trade union officials Mr Teodoro Martínez Martínez, Mr Amado Díaz Guevara, member of the Committee on the Implementation of the Regional Agreement between the IUF/COLSIBA and Chiquita, Mr Juan Francisco Reyes and Mr Ricardo Peck Montiel have initiated judicial proceedings concerning their dismissals and, if so, of the status of these proceedings; (2) of the grounds for the dismissal of
     • Mr Reinaldo López González and the reasons why the court ruling ordering his reinstatement was not executed, and to send it a copy of the agreement that is to be signed by the enterprise and the worker; and (3) of the grounds for the dismissal of Mr Manuel Murillo de la Rosa and the status of the court proceedings concerning his dismissal.
   • (d) In regard to the Chiquita – Chiriquí Land Company, the Committee requests the Government to inform it whether, in the process of the negotiations which the company says it has conducted with the trade union, it was decided to reinstate the dismissed trade unionists and members and, if not, to inform it of the grounds for the dismissals and whether judicial proceedings have been initiated in this regard.
   • (e) In regard to the Desarrollo Agroindustrial de Frutales SA enterprise, the Committee: (1) urges the Government to take all steps at its disposal so as to promote collective bargaining between the employers and their organizations on the one hand, and the organizations of workers on the other, in order to regulate the conditions of work in the enterprises concerned; and (2) requests the Government to send its observations concerning the alleged anti-union dismissal of Mr Jorge Luis Rojas Naranjo and to indicate whether the conciliation referred to in the case of Mr Germán Enoc Méndez’ dismissal involved his reinstatement.
   • (f) In regard to the Santa María del Monte SA agricultural enterprise, the Committee requests the Government: (1) to send its observations concerning the allegations that workers of the enterprise were detained by the migration police; and (2) to inform it of the total number of workers dismissed at the same time as the trade unionists referred to by the complainant organizations, broken down into unionized and non-unionized workers, to keep it informed of the judicial proceedings under way referred to in the information sent by the enterprise, and to inform it if there were any trade union members among the workers rehired by the enterprise.
   • (g) In regard to the allegations concerning the Cariari and Teresa plantations owned by Banacol, the Committee requests the Government to send its observations without delay.
   • (h) The Committee requests the Government to take the necessary steps to ensure that an independent inquiry is carried out in the banana sector concerning the allegations that blacklists are being kept, and to keep it informed in this regard.