Definitive Report - Report No 357, June 2010

Case No 2728 (Costa Rica) - Complaint date: 07-JUL-09 - Closed

Allegations: The complainant organization alleges anti-union dismissals in the banana sector

1. 401. The complaint is contained in a communication from the Industrial Trade Union of Agricultural Workers, Cattle Ranchers and Other Workers of Heredia (SITAGAH), dated 7 July 2009.
2. 402. The Government sent its observations in a communication of December 2009.
3. 403. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 404. In its communication of 7 July 2009, the SITAGAH alleges that the Standard Fruit Company, in disregard of trade union immunity, has carried out anti-union dismissals. It refers specifically to the following: (1) Isaac Eliel García Mendoza, dismissed on 7 May 2009 following his appointment as workers’ representative on 14 April 2009; (2) Filemón Velásquez Rayo, dismissed on 7 May 2009; (3) Freddy Mena Pérez, dismissed on 28 March 2009; (4) Wilberth Enrique Hernández Pérez, dismissed on 28 March 2009 (joined the union on 7 March 2009); (5) José Ríos Duarte, dismissed on 28 March 2009 (joined the union on 12 January 2008); (6) Santos González García, dismissed on 28 March 2009 (joined the union on 27 November 2008); and (7) Arturo Meneses Pérez, dismissed on 28 March 2009 (Undersecretary-General of SITAGAH since 25 January 2009).
2. 405. The complainant states that the company signed an agreement with the Coordinating Committee of the Costa Rica Banana Workers’ Unions in 2007 and thereby undertook to respect freedom of association, but the agreement has not in fact been respected. It adds that the Coordinating Committee and the company met on a number of occasions (on 13 September 2007; 22 April, 25 June, 15 and 17 July, 11 September and 3 October 2008; and 20 March and 21 April 2009) in order to discuss matters of concern to the complainant organization, including the issue of the dismissals referred to above, but failed to obtain results.
3. 406. Lastly, the complainant states that the Government authorities have taken no steps to prevent these anti-union dismissals and is failing to guarantee the basic right to unionize, which exists only in theory, “on paper”, not in reality.

B. The Government’s reply

1. 407. In its communication of December 2010, the Government states that Costa Rica is endeavouring to respect freedom of association in all its aspects: freedom to join and leave a union; respect for union pluralism; autonomy of unions to act freely and independently of the State or employers; etc. The Ministry of Labour and Social Security, through the National Labour Inspection Directorate, ensures that labour legislation is respected, including legislation relating to trade union rights. In this regard, and in accordance with the Labour Code, the inspectorate intervenes in procedures relating to unfair employment practices which include unjustified or unlawful dismissals.
2. 408. The Government states that Administrative Directive No. 023-08 establishes a new streamlined and updated procedure for dealing with cases of unfair employment practice. This Directive stipulates that complaints of such practices must be dealt with within two months.
3. 409. With regard to the specific allegations in this case, the Government states that the company sent a report through a note dated 29 October 2009, which states among other things that none of the dismissals was due specifically to union membership; they were part of a general measure that was applied to groups 1 and 2 of the Zurqui plantation and was due to the project of modernizing the plantation and matching production to market demand; and the measure was applied throughout the banana sector, not just to the Zurqui plantation. According to the company, as African and Caribbean countries have increased their share of banana production since 2000, competition from a number of Latin American countries and a fall in productivity of Costa Rica’s banana plantations have all led to increasing pressure to improve productivity in the country’s plantations. This has led to modernization programmes, involving production control based on the use of cuttings and new planting with a view to restoring productivity. According to the company, both SITAGAH and the Coordinating Committee were informed of this situation before the measures were put into effect. Currently, there are unionized workers working on the plantation in areas not affected by the modernization programmes of 2009. The company states that it has openly offered work on the plantation to workers laid off in connection with the modernization programme but the offer was not accepted by the union, despite the fact that work had already resumed in those areas. The company emphasizes that, despite this offer, none of the complainants has applied to the plantation for work, which proves that there is no foundation to the allegations of anti-union harassment made by SITAGAH. According to the company, the unionized worker Filemón Velásquez Rayo is working on the plantation.
4. 410. The Government states that the lay-offs carried out by the company are clearly not part of any supposed anti-union persecution but rather necessitated by modernization programmes involving production control with cuttings and new planting with the aim of restoring productivity of banana plantations and matching banana production to international demand. As regards failure to respect trade union immunity, the Government recalls that this comprises a range of measures intended to protect union officials from possible harm as a result of their union activities, but that protection is in no way intended to be unlimited. In this regard, the Constitutional Court in its jurisprudence has consistently stated that trade union immunity is not unlimited, and union officials can therefore be dismissed if there is good reason, in accordance with labour legislation and the principles of due process.

C. The Committee’s conclusions

1. 411. The Committee notes that, in this case, the complainant organization alleges the anti-union dismissal of a union official and six union members between March and May 2009 on a banana plantation, and that the Government takes no steps to guarantee the free exercise of trade union rights. The Committee notes that the complainant organization does not refer to any judicial proceedings that might have been instigated in connection with those dismissals, and that the company indicates that the unionized worker Filemón Velásquez Rayo is currently working on the plantation.
2. 412. The Committee notes from the Government’s reply that the company indicates that: (1) none of the dismissals alleged were due specifically to the union membership of the individuals concerned; (2) the dismissals applied to everyone in groups 1 and 2 at the Zurqui plantation, and were connected with the programme of modernization; (3) the measure was not unique to the Zurqui plantation but a general one that applied to the entire banana sector; (4) as more African and Caribbean countries have entered the banana market since 2000, and the competitivity of some Latin American countries has increased, while the productivity of Costa Rica’s own banana plantations has fallen, there has been strong pressure to become more competitive, which has led to modernization programmes involving production control based on the use of cuttings and new planting to restore productivity; (5) SITAGAH and the Coordinating Committee of Costa Rica Banana Workers’ Unions were informed of this objective situation before the measures were applied; (6) unionized workers are currently working on the plantation in areas not affected by the modernization programmes of 2009; and (7) there has been an open offer of employment on the plantation for workers who were laid off in connection with the modernization programmes, but the offer was not accepted by the union, despite the fact that work had resumed in those areas, and no one applied for work, which proves that there is no basis for the allegation by SITAGAH of trade union harassment.
3. 413. Taking into account this information, and in particular the fact that the company has offered to rehire the dismissed workers referred to in this case, the Committee will not pursue its examination of these allegations.

The Committee's recommendations

1. 414. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that the present case does not call for further examination.