Interim Report - Report No 353, March 2009

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

1. 796. The Committee last examined the substance of this case at its November 2007 meeting and on that occasion submitted an interim report to the Governing Body for approval [see 348th Report, paras 440–510, approved by the Governing Body at its 300th Session].
2. 797. The Government sent its observations in communications dated 20 February and 29 September 2008.
3. 798. 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. Previous examination of the case

1. 799. At its November 2007 meeting [see 348th Report, para. 510], the Committee made 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’s 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.

B. The Government’s reply

1. 800. In its communications dated 20 February and 29 September 2008, the Government refers to the recommendations made by the Committee when it last examined the case. As regards recommendation (a), the Government states that it takes note of the views of the Committee concerning the case in question, in particular with regard to concern about the slowness and ineffectiveness of administrative and judicial procedures in cases of antiunion practices and the urgent need to adopt the various bills currently in progress in relation to those issues. The Government hopes that all of these issues will be resolved and that the relevant bills will be adopted in the near future. The Government has shown an interest in strengthening all the necessary measures in accordance with the principles of freedom of association, including the promotion of responsive and swift legal and administrative procedures in cases involving anti-union practices. According to the Government, this is evidenced by letter No. DMT-0173-08, of 19 February 2008, in which the Ministry of Labour and Social Security requests the Ministry of the Presidency, among other things, to promote a group of bills that will contribute to strengthening the procedures in question (including the approval of the Bill to reform labour procedures).
2. 801. The Government adds that the Ministry of Labour and Social Security sent a copy of the report of the Committee on Freedom of Association on 19 February 2008 to
   • Mr Luis Paulino Mora Mora, President of the Supreme Court of Justice (in letter
   • No. DMT-0161-2008), Mr José Pablo Carvajal Cambronero, Executive Director of the High Labour Council (in letter No. DMT-0164-2008) and Mr Alexander Mora Mora, Chairperson of the Permanent Committee for Legal Affairs of the Legislative Assembly (in letter No. DMT-0163-2008), so as to inform them of the recommendations and elicit their views in that regard. The Government undertakes to inform the Committee in the near future of the opinions submitted by the abovementioned authorities.
3. 802. The President of the Second Chamber of the Supreme Court of Justice responded to the observations concerning the slowness and ineffectiveness of administrative and judicial procedures in cases of anti-union practices, in letter No. SP-269-08 of 27 May 2008. In this letter, the President expresses his agreement with some of the points made regarding the Bill to reform labour procedures, which is being processed under legislative procedure No. 15990 and is currently before the Plenary of the Legislative Assembly for discussion and approval. The President states that the abovementioned Bill is intended to simplify labour procedures by reducing the number of courts and appeals involved and introducing oral proceedings. In addition, procedures for the settlement of economic and social disputes are being amended in order to make them more practical and effective, and rules are being drawn up to regulate dispute settlement in the public sector.
4. 803. Moreover, the President states that the Supreme Court of Justice is doing its utmost to help ensure that the Bill becomes law, given that it would provide the courts with a swift and effective means of settling legal, economic and social labour disputes. The Supreme Court of Justice recognizes that certain legal procedures have been slow.
5. 804. In relation to the Bill to reform labour procedures (legislative procedure No. 15990), the Government adds that the High Labour Council has reactivated a special study and analysis committee with tripartite participation. The committee’s objective is to reach consensus on certain points of the Bill and transmit the results of the study to the members of Parliament, with a view to smoothing the way for approval of the Bill in the near future, especially given that the main actors have already concluded important agreements regarding this issue. An important contribution to the work of the abovementioned special committee of the High Labour Council has been the report submitted by the ILO Subregional Office to the Ministry of Labour and Social Security in August 2008. This report is the result of technical assistance requested by the abovementioned official in order to ensure that the Bill is in full conformity with the provisions of ILO Conventions Nos 87 and 98, as stated in letter No. DMT-1131-2007 of 23 July 2007.
6. 805. The expert report will be transmitted, not only to the special committee of the High Labour Council, but also to the special subcommittee established on 27 May 2008 within the Committee for Legal Affairs of the Legislative Assembly to study the Bill to reform labour procedures and issue an opinion on it. Given the considerable joint effort undertaken by the executive and judicial branches, together with the main social partners (guided by ILO technical assistance) the Government of Costa Rica, acting in a responsible manner and determined to resolve the situation, hopes that the Bill will become law in the near future, once it has been analysed and studied by the Plenary of the Legislative Assembly.
7. 806. In addition to contributing to the promotion of the Bill, which will streamline legal procedures, the judiciary has also taken steps to increase its human resources, and to strengthen the functioning of courts through improved computerized links with external bodies to speed up legal procedures in labour cases (connecting it to the Civil Registry, the Public Registry, the Office of the Attorney-General, etc.) and to purchase digital recording equipment to be used during oral hearings, among other things. Furthermore, small claims labour courts have been established in various regions of the country in order to handle cases more swiftly, especially since the rules governing these courts provide for oral proceedings. The judiciary has thus considerably reduced the average duration of labour cases and the caseload.
8. 807. The Government adds that, in order to strengthen the judicial system further, in March 2008, the Supreme Court of Justice approved the establishment of the Conciliation Centre of the Judiciary, which promotes flexible, informal and effective judicial mechanisms. Conciliation – either in the labour courts or in other judicial bodies – is offered as an additional means of fulfilling the constitutional mandate of providing swift and full justice. This is an ideal tool for a preventive approach, allowing judges to deal with disputes which, by their nature, can only be resolved through a court ruling.
9. 808. The Government adds that the Ministry of Labour and Social Security is also interested in strengthening alternative means of dispute resolution by the administrative authority, given that efforts in this direction help reduce the number of cases brought before the labour courts, thereby relieving court congestion and saving judicial resources.
10. 809. Furthermore, the judiciary is continuing to implement the “Programme to combat delays in legal proceedings”, which seeks to balance the caseload among the different judicial bodies in order to provide a more timely service to users. This is done by providing congested courts with supernumerary judges appointed by the Office of the Chief Justice. In 2007, the Programme provided assistance to 48 courts, including misdemeanour, maintenance, family and labour courts. In the same year, a total of 5,181 cases were handled under the Programme, with 4,667 judgements and decisions handed down and around 614 cases rejected.
11. 810. As to recommendation (b) on the issue of alleged discrimination in favour of the permanent workers’ committees to the detriment of the trade unions, the Government states that this issue was examined by the ILO high-level technical assistance mission which visited Costa Rica in October 2006. During its visit, the mission took note of the formal request by the Ministry of Labour and Social Security for ILO assistance in conducting an independent inquiry into the issue. To carry out this task, the ILO appointed Adrián Goldín, Professor of Labour Law at the University of San Andrés (Argentina) in February 2007. The Government of Costa Rica, acting through the Ministry of Labour and Social Security, cooperated fully, providing all the logistical and technical support requested by Mr Goldín. In May 2008, the Government of Costa Rica received a copy of the study carried out by the independent expert appointed by the CEACR, to which it had agreed during the visit of the ILO high-level mission to the country. In this regard, the Government reiterates that, even if it might be claimed that there are a wide variety of factors conducive to the existence of more direct settlements than collective agreements, as noted by the CEACR, the fact is that both institutions have a basis in law and are freely chosen by the sectors involved.
12. 811. However, owing to its constitutional status and its important role in maintaining social peace, collective bargaining is given special protection, both in Costa Rican positive law and in national practice. This can be seen not only in the labour law status granted to it by the Constitution and in the regulatory framework governing collective agreements, but also in the content of an administrative directive of 4 May 1991 on the “correct procedure for handling direct settlements submitted after a request has already been made for collective bargaining”. The National Inspection Directorate must act in accordance with these provisions whenever a direct settlement is submitted to it in order to be deposited. In such cases, before the settlement can be deposited, the General Labour Inspectorate must ascertain that there is not already a trade union recognized for purposes of negotiating a collective agreement present in the enterprise concerned and that it has not already initiated the bargaining procedure, in accordance with section 56 of the Labour Code.
13. 812. Should it be found that a trade union recognized for bargaining purposes already exists in the enterprise, the General Labour Inspectorate shall reject the direct settlement immediately, without assessing its content, so as not to undermine the negotiation of the collective agreement (as such agreements have a higher legal ranking). However, it is true that the independent expert refers to circumstances which would appear to contradict the commitment under Article 4 of Convention No. 98, regarding the promotion of the full development and utilization of machinery for voluntary negotiation. Thus, given that the report in question has only recently been received, and taking into account the recommendation of the Committee of Experts addressed to the Government concerning the need to submit the document and its conclusions for tripartite analysis, the Ministry of Labour and Social Security has sent a complete copy of the study to each of the members of the High Labour Council with a view to correcting the imbalance between the number of collective agreements and direct settlements.
14. 813. The Government emphasizes that it continues to hope that a satisfactory solution will be found through genuine social dialogue, involving all the social actors concerned, without prejudice to any technical assistance that the ILO may be able to offer in this matter, in order to ensure that permanent committees and direct settlements do not have an anti-union impact in practice (as pointed out by the independent expert in his report). The issue is a complex one, and the Government hopes that, in the near future, it will be able to put forward a consolidated proposal that offers a satisfactory solution to the situation referred to by the independent expert.
15. 814. As to recommendations (c), (d), (f) and (g), the Government states that it has sent a copy of the 348th Report of the Committee on Freedom of Association to representatives of all of the enterprises mentioned: the Chiquita Cobal enterprise, Chiquita-Chiriquí Land Company, Agrícola Santa María del Monte SA and Banacol (with regard to the Cariari and Teresa plantations), and transmits the observations of the enterprises in question. As to recommendations (c) and (d), the Government transmits information provided by the Chiquita Cobal enterprise and Chiquita-Chiriquí Land Company, reiterating that provided when this case was examined in November 2007. As to recommendation (f) regarding the Agrícola Santa María del Monte SA enterprise, the Government sends a communication from the enterprise stating that, in 2005, a decision was taken to dismiss 124 estate workers, with full payment of entitlements, in order to reduce the workforce to 86 in accordance with the needs of the estate. Most of those 86 workers were non-unionized. Among the 86 new workers hired, only one worker, Fabio Amador Martínez, a union member, was rehired. As to the workers detained by the immigration authorities, the enterprise denies any involvement with the matter, which concerns undocumented workers.
16. 815. As to recommendation (g) regarding the Cariari and Teresa plantations (owned by Banacol), the Government transmits Banacol’s reply to the effect that it recognized the Plantation Workers Trade Union (SITRAP) as soon as it learned that there were members of SITRAP among its workers, and that it gave express instructions to its managers on the Cariari and Teresa plantations in that regard. The enterprise denies that SITRAP members have been persecuted, affirming, on the contrary, that “The exercise of disciplinary authority (warnings, reprimands, etc.) by the employer does not constitute grounds for complaints of anti-union persecution”.
17. 816. The enterprise has provided the following statement regarding the workers concerned:
    • – Mr Isidro Sánchez Obando’s replanting work was discontinued because it was no longer necessary. Once all the plants allotted for each plot have been planted, this work is no longer carried out. This was the case at four plantations, including the one on which he was employed, and hence he could not be assigned the same task, as it had been discontinued. This type of work is known as mantenimiento de resiembra (ongoing replanting), and is carried out to cope with a temporary shortage of banana plants, which was overcome, and as de mata lenta (slow plant) work, which involves tending plants that are growing at a slower rate than normal;
    • – Mr Hermes Cubillo Gómez was paid the wage difference owed to him, as noted in the minutes of the meeting between the enterprise and SITRAP that was held at the Ministry of Labour offices in San José on 24 August 2008. On 3 September 2003 (long before he joined the trade union) this worker had received a written reprimand for physically and verbally assaulting Mr Mora Mora Gerardo, while he was doing his job. This constituted grounds for dismissal, but the enterprise only issued a reprimand (section 81(a) of the Labour Code). On 24 May 2005, he was again issued with a warnings for leaving his post. On 1 and 24 April 2006, he was given written warnings for having abandoned his post. These acts constitute grounds for dismissal under sections 72(a) and 81(y) of the Labour Code, but the enterprise did not dismiss the worker. How can anyone allege trade union persecution in the case of a worker who could have been dismissed for serious misconduct but who merely received reprimands or suspensions instead of being dismissed;
    • – Mr Oscar Hernández did not perform his task of pruning plants correctly and his productivity was low as a result. Consequently, he was assigned another task. Such reassignments are often carried out on estates in the case of labourers, who are recruited to carry out all the usual agricultural tasks that are commensurate with their strength, abilities, state or condition and are of the same nature as the core business, activity or industry in which the employer is engaged, in accordance with section 20 of the Labour Code. This worker received a reprimand on 28 April 2006 for failing to carry out his duties correctly;
    • – as to Mr Angel Sánchez Coronado, the coordinators of the trade union and the enterprise agreed to review the tasks assigned to him and his wages.
18. 817. As to the withdrawal from trade union membership by members of SITRAP, the enterprise states that a number of SITRAP members decided to leave the trade union of their own accord. They requested Mr Carlos Luis Sánchez Marín, a member of the permanent committee of estate workers, who was going to attend a meeting on the programming of courses on solidarism at the Escuela Social Juan XXIII in Siquirres, to give them a lift in a vehicle provided for the use of the solidarist association. Once in Siquirres, the former trade unionists asked Mr Sánchez, as a member of the permanent committee, to accompany them to the SITRAP offices, which he did. This was portrayed as employer interference in withdrawal from trade union membership. The enterprise cannot be held responsible for the actions of third parties (such as solidarist associations, members of the permanent committee or other workers or middle management) unless it is shown that they were acting with its consent. There is no proof that the enterprise gave its consent with regard to any of the incidents mentioned in the complaints, or that it imposed disciplinary penalties that were not grounded in the authority of the employer.
19. 818. As to recommendation (e), the Government states that the Desarrollo Agroindustrial de Frutales SA enterprise informed it, in letter No. S.OB. 036-08, of 22 January 2008, that, in the labour court proceedings initiated by the workers Jorge Luis Rojas Navarro and Germán Enoc Méndez Aguirre (heard by the Labour Court of the Second Circuit of San José) the parties reached a conciliation agreement, and the cases were shelved as a result. The representative of the enterprise provided certified copies of the court rulings stating that the complaint had been withdrawn and ordering that the case be shelved (both these rulings were handed down by the Labour Court of the Second Circuit of San José). The legal representative of the respondent enterprise also provided a copy of the document in which he accepted the withdrawal of the complaint and requested that the proceedings be closed.
20. 819. As to recommendation (h), the Government states that, convinced of the need to implement in national practice institutions enabling workers to exercise their rights at work fully, and in the light of the Committee’s recommendation, it considers it prudent to submit a formal request for ILO technical assistance, so that the ILO’s interdisciplinary teams and/or advisers can carry out the “independent inquiry” suggested by the Committee, in order to address the allegations concerning the keeping of blacklists in the banana sector and protect the fundamental rights and guarantees of all the workers in that sector.

C. The Committee’s conclusions

1. 820. At its November 2008 meeting, the Committee examined allegations regarding 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, and on that occasion made recommendations [see 348th Report, para. 510].
2. 821. As to recommendation (a), in which the Committee urged the Government to adopt in the very near future the various bills currently in progress in relation to the slowness and ineffectiveness of administrative and judicial procedures in cases of anti-union practices, on which the Government provided information, and stressed that they should be in full conformity with the principles of freedom of association, the Committee notes that the Government states that: (1) in letter No. DMT-0173-08, of 19 February 2008, the Ministry of Labour and Social Security requested the Ministry of the Presidency to promote a group of bills that would contribute to strengthening the procedures in question (including the approval of the Bill to reform labour procedures); (2) it sent copies of the Committee’s report to the President of the Supreme Court of Justice, the Executive Director of the High Labour Council and the Chairperson of the Permanent Committee for Legal Affairs of the Legislative Assembly, to inform them of the recommendations and elicit their views in that regard; (3) the President of the Second Chamber of the Supreme Court of Justice stated that he agreed with some of the points made regarding the Bill to reform labour procedures, which is currently before the Plenary of the Legislative Assembly for discussion and approval, and that the Supreme Court of Justice was doing its utmost to help ensure that the Bill became law, given that it would provide the courts with a swift and effective solution to legal, economic and social labour disputes;( 4) as regards the Bill to reform labour procedures, the High Labour Council has reactivated a special study and analysis committee with tripartite participation. The aim of this committee is to reach consensus on certain points of the Bill and transmit the results of the study to the members of Parliament, with a view to smoothing the way for approval of the Bill in the near future; (5) the judiciary has also taken steps to increase its human resources, and to strengthen the functioning of courts, thereby considerably reducing the average duration of labour cases; and (6) the Ministry of Labour and Social Security is also interested in strengthening alternative means of dispute resolution by the administrative authority, given that efforts in this direction help reduce the number of cases brought before the courts. Under these circumstances, the Committee appreciates the fact that the Government has submitted this issue to the competent authorities and to a tripartite body, and expects that the bills in question will be adopted in the near future.
3. 822. As to recommendation (b), in which the Committee requested the Government to send its observations without delay regarding alleged discrimination in favour of the permanent workers’ committees to the detriment of the trade unions, the Committee notes that the Government states that: (1) this issue was examined by the ILO high-level technical assistance mission which visited Costa Rica in October 2006; (2) during the visit, the mission took note of the formal request by the Ministry of Labour and Social Security for ILO assistance in conducting an independent inquiry into the issue; (3) to carry out that task, the ILO appointed Adrián Goldín, Professor of Labour Law at the University of San Andrés (Argentina) in February 2007. The Government of Costa Rica cooperated fully, providing all the logistical and technical support requested by Mr Goldín, and received his report in May 2008; (4) even if it might be claimed that there are a wide variety of factors conducive to the existence of more direct settlements than collective agreements, it is true that both institutions have a basis in law and are freely chosen by the sectors involved; however, owing to its constitutional status and its important role in maintaining social peace, collective bargaining is given special protection; (5) should it be found that a trade union recognized for bargaining purposes already exists in the enterprise, the General Labour Inspectorate shall reject the direct settlement immediately, without assessing its content, so as not to undermine the collective bargaining process; (6) it is true that the independent expert refers to circumstances which would appear to contradict the commitment under Article 4 of Convention No. 98. Accordingly, and taking into account the recommendation of the Committee of Experts on the Application of Conventions and Recommendations, the Ministry of Labour and Social Security has sent a complete copy of the study to each of the members of the High Labour Council; and (7) the Government continues to hope that a satisfactory solution will be found through genuine social dialogue, involving all the social actors concerned, in order to ensure that permanent committees and direct settlements do not have an anti-union impact in practice. In this regard, the Committee appreciates the fact that the Government has submitted this issue to the competent authorities and to a tripartite body, and expects that the measures planned by the Government will enable appropriate solutions to be found to the problem of collective agreements with non-unionized workers.
4. 823. As to recommendations (c) and (d), in which the Committee requested the Government to transmit its observations regarding allegations concerning the Chiquita Cobal enterprise and the Chiquita-Chiriquí Land Company, the Committee notes that the Government has sent information that had already been provided by the enterprises when the case was examined in November 2007. Under these circumstances, the Committee regrets that the Government has not sent the requested observations, reiterates the recommendations it made when last examining the case and expects that, together with any information the enterprises might wish to transmit, the Government will send the requested observations in due course.
5. 824. As to recommendation (f) regarding the enterprise Agrícola Santa María del Monte SA, in which the Committee requested 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, the Committee notes that the Government has transmitted a report from the enterprise indicating that: (a) the enterprise has nothing to do with the undocumented workers detained in March 2005 by the immigration authorities, and (b) in 2005, the enterprise decided to dismiss 124 estate workers, including a few unionized workers, with full payment of entitlements, and 86 workers were later hired, of whom one was a union member. In this regard, the Committee notes that the dismissed workers do not seem to have lodged a complaint with the national authorities, and trusts that, in future, when staff cuts are being planned, the trade union organizations concerned will be fully consulted.
6. 825. As to recommendation (e) regarding the enterprise Desarrollo Agroindustrial de Frutales SA, the Committee: (1) urged 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 enterprise concerned; and (2) requested 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 Aguirre’s dismissal involved his reinstatement. In this regard, the Committee notes that the Government states that the enterprise reported that, in the labour court proceedings initiated by the workers Mr Jorge Luis Rojas Naranjo and Mr Germán Enoc Méndez Aguirre, the parties reached a conciliation agreement, and the cases were shelved as a result. Under these circumstances, in the absence of information from the Government regarding the allegations concerning collective bargaining, 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 enterprise Desarrollo Agroindustrial de Frutales SA, and to keep it informed in this respect.
7. 826. As to recommendation (g), regarding allegations of anti-union persecution of the workers Isidro Sánchez Obando (allegedly transferred to other duties), Angel Sánchez Coronado, Hermes Cubillo Gómez and Oscar Hernández of the Cariari and Teresa plantations (owned by Banacol), who decided to become members of SITRAP, as well as pressure brought to bear by the enterprise to force workers to leave the trade union, the Committee observes that the Government transmits a report from the enterprise which states that: (1) it recognized SITRAP as soon as it learned that there were members of the union among its workers; (2) members of SITRAP are not persecuted; (3) Mr Sánchez Obando was transferred to other duties because the tasks he had previously been assigned had been discontinued; Mr Hermes Cubillo Gómez was paid the wage difference owed him and reprimanded for verbal and physical assault (long before he joined the trade union); Mr Oscar Hernández was transferred to another task because he was not carrying out his duties in a satisfactory manner and received a warning in that regard; and (4) as to the cases of withdrawal from SITRAP membership, a number of workers decided to leave the trade union of their own accord and requested a member of the permanent workers’ committee of the plantation, Mr Carlos Ruiz Sánchez Marín, to accompany them to the SITRAP offices. The enterprise states that it cannot be held responsible for the actions of third parties unless it is shown that they were acting with its consent. The Committee takes note of this information furnished by the enterprise and regrets the absence of any information from the Government respecting this matter.
8. 827. As to recommendation (h), in which the Committee requested 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, the Committee notes that the Government has requested ILO technical assistance, so that the ILO’s interdisciplinary teams and/or advisers can carry out the independent inquiry, in order to address the allegations concerning the keeping of blacklists in the banana sector and protect the fundamental rights and guarantees of the workers in that sector. In this regard, the Committee understands that the Government is prepared to accept a mission sent by the Subregional Office so that an independent inquiry can be carried out into the allegations concerning the keeping of blacklists in the banana sector, and hopes that this assistance will be provided as soon as possible.

The Committee's recommendations

1. 828. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the various bills currently in progress in relation to the slowness and ineffectiveness of administrative and judicial procedures in cases of anti-union practices, 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) As to the alleged discrimination in favour of the permanent workers’ committees to the detriment of the trade unions, while noting that the Government has submitted this issue to a tripartite body and that it intends to adopt measures regarding the report made by an independent investigator in this respect, the Committee expects that appropriate solutions will be found to the problem of collective agreements with non-unionized workers referred to when the case was last examined.
   • (c) In the absence of information from the Government regarding certain allegations, the Committee expects that, together with any information the enterprises might wish to transmit, the Government will send its observations in due course regarding the following recommendations made in November 2007, which are reproduced below:
     • – 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;
     • – 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.
   • (d) The Committee urges the Government, as previously requested, 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 enterprise Desarrollo Agroindustrial de Frutales SA and to keep it informed in this respect.
   • (e) The Committee understands that the Government is prepared to accept a mission sent by the Subregional Office so that an independent inquiry can be carried out into the allegations concerning the keeping of blacklists in the banana sector, and hopes that the necessary measures will be taken to provide this assistance as soon as possible.