Definitive Report - Report No 348, November 2007

Case No 2542 (Costa Rica) - Complaint date: 19-JAN-07 - Closed

Allegations: Restrictions of freedom of expression and of the right to information of a trade union organization

511. The complaint is contained in a communication from the National Union of Social Security Fund Employees (UNDECA) dated 19 January 2007, and was supported by the World Federation of Trade Unions (WFTU) (Regional Office in the Americas) in a communication dated 31 January 2007.

1. 512. The Government sent it observations in a communication dated 23 April 2007.
2. 513. 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. 514. In its communication dated 19 January 2007, UNDECA alleges that the Government of Costa Rica, in August 2004, together with the other countries of Central America, negotiated a Free Trade Agreement with the United States. The negotiations were controversial because they were subject to a “confidentiality clause” which kept Costa Rican citizens in ignorance of the progress of talks until the publication of the final text as negotiated and signed by governments. Unfortunately, the other Central American countries have already approved this Agreement, although the Costa Rican Legislative Assembly is still discussing it and will in the coming months have to decide whether or not to give its final approval.
2. 515. UNDECA adds that the private sector and the Government have allocated considerable resources to financing a media campaign to promote the Agreement. By contrast, social welfare organizations, with their limited resources, have undertaken a number of activities in universities, communities and public institutions to inform citizens and workers of the very damaging content and scope of the Agreement, which would lead to the destruction of the social welfare state and the rule of law and of the social safeguards won by working people. The Free Trade Agreement is very widely opposed by social welfare organizations, cooperatives, trade unions, local community organizations, universities and the like.
3. 516. UNDECA states that it has taken on an important role in this civil struggle and warns of the possible impact of the Agreement on public health policy, the supply of pharmaceutical drugs, social security and, in particular, the jobs of people employed by the Costa Rica Social Security Fund (CCSS). The management of the Fund, headed by its executive president (a government official), have disregarded the principles of social security in Costa Rica and defended the Free Trade Agreement tooth and nail, claiming that it would have absolutely no detrimental effects on the Fund, a viewpoint largely invalidated even by the World Health Organization. However, the government authorities and this public institution have not merely directed a considerable proportion of the Fund’s budget to promoting the new Free Trade Agreement; they have in addition sought to monitor and restrict the activities of the trade unions that oppose this deplorable Agreement and are endeavouring to provide workers with objective information.
4. 517. UNDECA in this connection draws attention to the fact that, following instructions from the Government, the executive board of the CCSS, in article 16 of the record of its sitting No. 8101 which took place on 26 October 2006, adopted the following agreement:
5. Article 16
6. In response to concerns that CCSS facilities are being used for propaganda for or against the Free Trade Agreement, it is agreed that the Medical and Administrative Division should be asked to review the situation at various CCSS facilities and issue a minute to the effect that the facilities in question should not be used for those purposes.
7. 518. According to UNDECA, the only publicity in favour of the new Free Trade Agreement has been the official propaganda which is not subject to any restriction; the above agreement is thus directed at propaganda, mainly from the trade unions, against the Agreement, and this seriously infringes the right of the trade unions to express their views freely, something that is especially important when dealing with an issue that has such major implications nationally and especially for the CCSS and the jobs of its employees. UNDECA attaches a copy of Circular No. 43941 issued by the Fund management on 8 November 2006 (reproduced in the conclusions below) in accordance with article 16 of the record of sitting No. 8101. This, in the view of UNDECA, violates the freedom of association Conventions ratified by Costa Rica and the principles of the ILO’s supervisory bodies. The agreement adopted by the executive board of the CCSS violates freedom of association because it prevents trade union organizations – which are hardly likely to favour the Free Trade Agreement – from using CCSS facilities to make known their own position regarding the Agreement. For the first time, trade unions are being prevented from making use of institutional facilities to inform workers of the scope and implications of the Agreement and from publicizing action to defend the most sacrosanct interests of the country and of the CCSS.
8. 519. In its communication of 31 January 2007, the WFTU (Regional Office in the Americas) associated itself with the complaint made by UNDECA and put forward the same arguments.
9. B. The Government’s reply
10. 520. In its communication of 23 April 2007, the Government stated that the complaint is replete with subjective assertions and, strictly speaking, does not come within the remit of an international body charged, as the ILO is, with monitoring the application of international labour standards.
11. 521. In this context, with regard to the matter of the Free Trade Agreement with the United States, the statements made by the complainant organization are just opinions that do not warrant any particular rebuttal and indicative of the freedom of thought and expression that prevails in Costa Rica. In any case, the Free Trade Agreement in question is a legal instrument pertaining to international terms of trade which prevail in the country following its negotiation by a team of duly authorized negotiators. The text of the Agreement itself is currently being examined and discussed by the legislature to which all interested sectors, including the trade unions, have made their respective positions clear.
12. 522. As regards more specifically the alleged measures taken by the CCSS management to restrict trade union action against the Agreement, the Government provides a copy of the following observations made by the head of the Administrative Division of the CCSS:
13. The issues raised by the trade union organization are due to an erroneous understanding of the aims and content of Circular No. 43941 of 8 November 2006. In this regard, the executive board of the CCSS adopted article 16 of the record of its sitting No. 8101 which contains the following agreement:
14. Article 16
15. In response to concerns that CCSS facilities are being used for propaganda for or against the Free Trade Agreement, it is agreed that the Medical and Administrative Division should be asked to review the situation at various CCSS facilities and issue a minute to the effect that the facilities in question should not be used for those purposes.
16. With the agreement of the executive body, Circular No. 43941 was issued on
17. 8 November 2006. Both the agreement of the executive board and the circular sought to prevent a situation in which disputes over this issue might undermine the peace and stability which should prevail in the matter of health services. It should be noted that the text of Circular No. 43941 allows information and publicity measures in the areas (noticeboards) allocated to the trade unions for that purpose, which clearly shows that the measure in question was not intended to restrict freedom of expression.
18. Since it was based on totally mistaken interpretations of measures taken by the CCSS, and in order to forestall further misunderstandings, the administration revoked Circular
19. No. 43941 by issuing Circular No. 2021-07 of 3 January 2007. The executive board, also concerned at the misunderstanding of the agreement adopted in article 16 of the record of sitting No. 8101, revoked it with the adoption of article 28 of the record of sitting
20. No. 8126.
21. In the light of this, the allegations concerning restrictions of freedom of association within the CCSS are the result of misunderstandings of the action taken by the management of the institution, as is clear from the relevant documents.
22. 523. The Government attaches a certified copy of the agreements set out in article 16 of the record of sitting No. 8101 and article 28 of the record of sitting No. 8126, as well as a certified copy of Circular No. 2021-07 of 3 January 2007.
23. 524. According to the Government, article 28 of the record of sitting No. 8126 states that because of the misinterpretation of the reasons for the agreement set out in article 16 of sitting No. 8101, which was in no way intended to restrict the freedom of expression of CCSS staff in relation to subjects of national interest, the executive board agreed to annul these provisions in article 16 in order to prevent interpretations at variance with the spirit of the agreement. It reiterated (the Government attaches a copy of the corresponding agreement) that it has always adhered to a policy of absolute respect for freedom of expression in the terms in which it is enshrined in the Political Constitution and current legislation.
24. 525. For these reasons, the Government calls for the dismissal of the complaint in its entirety; the alleged facts do not constitute a violation of trade union rights by the CCSS or by the Government, since the measures adopted by the authorities were in line with legislation in force and in keeping with the principles of the ILO.

C. The Committee’s conclusions

1. 526. The Committee observes that in the present complaint, the complainants allege restrictions of freedom of information and expression of employees of UNDECA as regards the harmful impact of the Free Trade Agreement negotiated between the United States and Costa Rica (currently being discussed by the Legislative Assembly) on the advances won by working people, and in particular in the area of public health policy, supply of pharmaceutical drugs, social security and the jobs of CCSS employees. More specifically, the complainants criticize article 16 of the record of sitting No. 8101 of the executive board on 26 October 2006, according to which:
2. Article 16
3. In response to concerns that CCSS facilities are being used for propaganda for or against the Free Trade Agreement, it is agreed that the Medical and Administrative Division should be asked to review the situation at various CCSS facilities and issue a minute to the effect that the facilities in question should not be used for those purposes.
4. 527. The complainants also criticize Circular No. 43941 (copy supplied) signed by the manager of the Administrative Division and the manager of the Medical Division, dated 8 November 2006, which expands on article 16 of sitting No. 8101, as follows:
5. Subject: Concern regarding use of CCSS facilities for the purpose of propaganda against or in favour of the Free Trade Agreement:
6. In accordance with instructions issued by our executive board (article 16, record of sitting No. 8101), we have deemed it appropriate to refer to the concerns expressed with regard to the use of CCSS facilities for the purpose of propaganda against the Free Trade Agreement.
7. This will be permitted only in specific trade union information areas (noticeboards) at different locations, and any such information must be reasonable and respectful in tone.
8. In this regard, it is the responsibility of each centre to review the facilities to ensure that they comply with this provision and to guarantee that they are not used for offensive propaganda.
9. 528. The Committee notes the Government’s statements to the effect that: (1) the Free Trade Agreement is an instrument pertaining to international trade policy negotiated by a team of duly authorized negotiators; it is being discussed by the Legislative Assembly, where all sectors, including the trade unions, have been able to express their views on it; (2) the complaints made by the complainants are based on a misunderstanding of the aims and content of Circular No. 43941 of 8 November 2006 in implementation of article 16 of the record of sitting No. 8101 of the CCSS executive board; (3) attempts were made to prevent controversies over the Agreement from adversely affecting the peace and stability which should prevail in the health service sector; (4) the text of Circular No. 43941 permits displays of information in publicity and information areas (noticeboards) allocated to the trade unions and the measure was thus not intended to restrict freedom of expression;
10. (5) given that it was the result of misunderstandings of the actions taken by the CCSS, and in order to put an end to such misunderstandings, the administration cancelled Circular No. 43941 on 3 January 2007 and the executive board revoked article 16 of the record of sitting No. 8101.
11. 529. The Committee notes that the authorities of the CCSS in early January 2007 revoked the decisions and circulars dated 26 October and 8 November 2006. The Committee notes with regret that, during a period of just over two months, these documents limited the right of information and expression with regard to the Free Trade Agreement in CCSS facilities inasmuch as they allowed only displays of information on designated trade union noticeboards and excluded the use of other media such as those envisaged in the Workers’ Representatives Recommendation (No. 143) (distribution of pamphlets, publications and other documents), or those that might be freely discussed and negotiated with the CCSS management (meetings, symposia, round tables, and so on).
12. 530. The Committee has repeatedly emphasized the importance of the principle that the freedom of expression which should be enjoyed by trade unions and their leaders should also be guaranteed when they wish to criticize the Government’s economic and social policy [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 157], and the principle that the full exercise of trade union rights calls for a free flow of information, opinions and ideas and, to this end, workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other activities. Nevertheless, in expressing their opinions, trade union organizations should respect the limits of propriety and refrain from the use of insulting language [Digest, op. cit., para. 154].
13. 531. The Committee expects that these principles will be fully respected in future by the Costa Rica Social Security Fund. Noting, as has already been indicated, that the management of the CCSS within a period of two months corrected certain measures previously adopted and revoked the restrictions on rights of information and expression of the trade unions, the Committee will not pursue its examination of this case.

The Committee's recommendations

1. 532. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not require further examination.