Definitive Report - Report No 378, June 2016

Case No 3122 (Costa Rica) - Complaint date: 16-FEB-15 - Closed

Allegations: The authorities refused to suspend the Public Sector Salary Negotiation Committee for some days to allow for internal consultations, and concluded the corresponding salary agreement without the participation of the complainant organizations

1. 199. The complaint is contained in a communication of 16 February 2015, signed by the National Educators’ Association (ANDE), the Secondary School Teachers’ Association (APSE), the National Federation of Employees of the Social Security System and Fund (UNDECA), the Independent Union of Public Sector Workers (SITECO) and the General Confederation of Workers (CGT).
2. 200. The Government sent its observations in a communication of 13 November 2015.
3. 201. 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 organizations’ allegations

1. 202. In their communication of 16 February 2015, the complainant organizations denounce the authorities’ refusal to grant their request for the temporary suspension of the session of the Public Sector Salary Negotiation Committee in order to allow for consultations. They allege that this led to the imposition of a decision without consideration for representativeness, and that, consequently, faith in negotiation procedures has been lost.
2. 203. The complainant organizations indicate that, starting in January 2015, they attended various meetings of the Public Sector Salary Negotiation Committee (which is responsible for the review and negotiation of public sector salaries and includes representatives of each of the trade union confederations, a representative of ANDE, a representative of APSE and a representative elected by the five most representative public sector workers’ organizations not incorporated into federations) in order to discuss the salary adjustment for the first half of the year. They indicate that the purpose of their participation was to obtain a salary adjustment that reflected the increase in the cost of living, but that from the beginning of the series of meetings the Government was determined not to increase salaries by more than 0.94 per cent (the inflation accumulated over the previous six months). As a counterproposal, the complainant organizations called for a 1.94 per cent increase for professionals (0.94 per cent to account for inflation plus 1 per cent, equal to half the inflation forecast for the first half of 2015), and an extraordinary adjustment of 2.06 per cent for non-professionals, whose salary increment would increase to 4 per cent, with a view to reducing the gap between the salaries of the two categories (in both cases it was necessary to add the 0.14 per cent due as a result of the salary negotiations of the second half of 2014). Weeks after the complainant organizations made public their rejection of the Government’s proposal and presented this counterproposal, the Government convened another meeting of the Public Sector Salary Negotiation Committee, for 4 February.
3. 204. The complainant organizations indicate that at the meeting of 4 February: (i) the Government presented a proposed adjustment that maintained the 0.94 per cent increase, with the only addition being a 0.5 per cent increase for non-professional posts, to be granted gradually and in phases (it did not provide the details of this additional adjustment curve); (ii) the complainant organizations requested a suspension of the session for a few days, to allow their respective boards of directors time to familiarize themselves with the expanded proposal, and with a technical report with details of the proposed additional 0.5 per cent adjustment curve (the fact that the Government’s new proposal did not contain any additional increase for professionals was a sensitive issue for some of the complainants, such as ANDE and APSE – the largest Costa Rican public sector trade unions, and therefore the only ones with seats in their names on the Public Sector Salary Negotiation Committee, and the majority of whose members are professional educators); (iii) in response to the request for a suspension of the session, the other group of trade union organizations, comprising various confederations and federations, indicated their intention to proceed with the session, with the Government; (iv) the Government representatives took a unilateral decision not to suspend the session, without a vote or consideration of the criterion concerning the most representative organizations, thus denying the complainants the opportunity to hold the necessary internal consultations and failing to enable genuine negotiations which might lead to an increase for the professional category; (v) as a result of the Government’s authoritative stance and its failure to recognize the complainants’ legitimate position as the most representative organizations, the complainants withdrew from the session, expressly indicating that they would wait until the next meeting when they would have a clear position on the proposal; and (vi) in spite of this, the Government continued the meeting with the other organizations and proceeded, with them, to sign a salary adjustment agreement that maintained only a 0.94 per cent increase for the professional category (as well as the pending 0.14 per cent owed) and established an additional increase of up to 0.66 per cent for non-professionals (the complainants consider that there was consequently no substantial improvement made to the Government’s initial proposal that would justify the new agreement concluded with certain trade unions).
4. 205. The complainant organizations allege that the Conventions ratified by Costa Rica demand transparency and good faith in negotiations, as well as a need to establish objective criteria for joint decision-making. The complainants consider that, by unilaterally refusing the request of the various most representative organizations to suspend discussions for a few days for internal consultation purposes, the Government denied them their right to collective bargaining and trade union representation, which precluded their participation in the negotiation of the salary adjustment agreement.

B. The Government’s reply

1. 206. In its communication of 13 November 2015, the Government indicates that the actions its representatives were in conformity with Costa Rican law, and the principles of good faith and free and voluntary negotiation promoted by the ILO, and therefore requests that the complaint be dismissed.
2. 207. The Government indicates that three meetings of the Public Sector Salary Negotiation Committee were held (on 15 and 20 January and 4 February 2014), and that at the last meeting, on 4 February: (i) the Government presented its salary proposal and discussions began; (ii) subsequently, the complainant organizations proposed suspending the session with a view to submitting the initiative to their executive bodies for consideration; (iii) the other trade union organizations present, which represent the trade union confederations (except for the CGT) agreed to continue negotiating; (iv) to respect the wishes of the trade union delegations which wanted to proceed with the session, the Government representatives decided to keep the space open for dialogue and the session therefore continued; and (v) at the close of the meeting the Government and trade union representatives who were present agreed on a salary adjustment proposal for the first half of 2015, which improved on the Government’s initial proposal, with the proposed 0.5 per cent increasing to 0.66 per cent for the first-level salary group.
3. 208. The Government regrets that, despite its willingness and that of the other trade unions, the complainant organizations left the session of the Public Sector Salary Negotiation Committee. While it recognizes that these situations can occur in forums for dialogue, the Government indicates that it always maintains the hope that there will be a willingness to conclude negotiations, in order to find common ground which may support the executive in its decision-making. The Government emphasizes that it never intended to exclude any trade union representatives from the salary discussion; on the contrary, it responded to the willingness to negotiate of the trade union representatives who remained for the entire session. The Government recalls that social dialogue must be voluntary and that representatives cannot be prevented from leaving or obligated to take part in a discussion, and that, when no agreement is reached or there are delays in reaching agreement it is not appropriate to speak of a failure of social dialogue. The Government states that since 2009 a total of 13 salary adjustments have been made and that agreement between trade unions and the Government was possible on only three occasions (23 per cent).
4. 209. The Government recalls that setting the policy on public sector salaries is a constitutional responsibility of the executive and that, as the Constitutional Chamber has ruled, the Public Sector Salary Negotiation Committee, as a joint body, is consultative in nature and is a forum for dialogue that is not authorized to set salary increases definitively. However, the Government emphasizes that this body provides a space for social dialogue in which the representatives of public sector workers can debate, exchange ideas on and analyse matters of salary adjustments.

C. The Committee’s conclusions

1. 210. The Committee observes that the complaint concerns the refusal of the authorities to suspend a session of the Public Sector Salary Negotiation Committee for some days to allow the complainant organizations – which include a trade union confederation and the only two trade unions to hold their own seats on the Committee, owing to their significant public sector representativeness – to hold internal consultations. In response to the salary adjustment proposal presented by the Government at the meeting of 4 February 2015, the complainant organizations requested that the session be suspended to allow them to consult their respective boards of directors, in the light of an additional technical report requested from the Government. The other organizations present – comprising various federations and confederations – indicated that they preferred to continue with the meeting. In these circumstances, the Government did not agree to the request for suspension, the complainant organizations withdrew from the meeting (indicating that they would await a future meeting, to which they would come prepared with a clear position), and the other organizations present and the Government continued with the meeting and reached agreement on a salary adjustment without the participation of the complainant organizations.
2. 211. In the context of voluntary collective bargaining and a spirit of good faith, the Committee does not consider unreasonable the complainant organizations’ request to suspend the work of the Public Sector Salary Negotiation Committee for some days, to allow for internal consultations on a proposal which the Government submitted during that meeting and about which – according to the complainants, and not denied by the Government – further technical details were needed. As the Government did not indicate why it was not possible or advisable to agree to this request for a brief suspension of the proceedings of the Public Sector Salary Negotiation Committee (beyond the alleged willingness of the other organizations present to continue with the meeting), the Committee encourages the Government and the social partners to take appropriate measures in the future to foster the continued participation in the work of the Public Sector Salary Negotiation Committee of the different organizations which comprise it, with a view to promoting, to the extent possible, social dialogue and agreements supported by all the organizations concerned.

The Committee’s recommendation

1. 212. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee encourages the Government and the social partners to take appropriate measures in the future to foster the continued participation in the work of the Public Sector Salary Negotiation Committee of the different organizations which comprise it, with a view to promoting, to the extent possible, social dialogue and agreements supported by all the organizations concerned.