Informe provisional - Informe núm. 119, 1970

Caso núm. 611 (Costa Rica) - Fecha de presentación de la queja:: 13-OCT-69 - Cerrado

1. 77. The complaint by the General Confederation of Costa Rican Workers was made in a communication dated 13 October 1969 addressed directly to the ILO, supplemented by a further communication dated 29 November of the same year. The complaint, together with the supplementary information, was forwarded to the Government, which sent in its observations in a communication dated 21 April 1970.
2. 78. 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).
3. 79. The complaint comprises a series of allegations which are dealt with separately below.

A. A. The complainants' allegations

• General Allegations relating to the Inadequacy of National Standards on Freedom of Association
  80. 80 The complainants allege that, despite the existence of Constitutional and legislative safeguards on the subject, there is in Costa Rica no effective protection of " the development of the workers' and peasant movement ".
  81. 81 In its comments on this general aspect of the complaint, the Government begins by quoting article 60 of the national Constitution, which guarantees freedom of association to employers and workers alike for occupational purposes. It goes on to quote, inter alia, sections 70, 262, 271, 273 and 612 of the Labour Code. Thus, according to section 262: " The lawful Constitution of social organisations, whether industrial associations or co-operative societies, is hereby declared to be in the public interest as one of the most efficacious means of contributing to the maintenance and development of popular culture and democracy in Costa Rica." Section 271 states: " It shall not be lawful to compel any person to become a member of an association or to refrain from doing so ", while section 273 acknowledges the right of employers and employees " to form associations without the necessity of previous authorisation." Finally, section 612 stipulates that: " Every contravention of a prohibitory provision of this Code, of the administrative regulations thereunder or of any other labour or social welfare laws shall be punished by a fine of not less than 90 or more than 360 colones; in the event of a specific repetition of the offence the penalty shall be a term of imprisonment, which shall not be subject to commutation for a fine "
  82. 82 The Government also mentions sections 47 and 50 of Act No. 1860 of 1955 (as amended by Act No. 3095 of 1963) setting up the Ministry of Labour and Social Welfare; these sections deal with the promotion of trade union organisations and the need for the new Ministry to collaborate with them.
  83. 83 The Government adds that the standards of International Labour Conventions Nos. 87 and 98 have, since the ratification of these instruments by Costa Rica, formed an integral part of national law.
  84. 84 Lastly, the Government states that there is in Costa Rica a tripartite council which is responsible for periodically reviewing and assessing the degree of freedom of association in the country, and it considers that the complaining organisation would have done better to submit its grievances to this body rather than to the ILO.
  85. 85 Judging from the statutory provisions mentioned by the Government, it would not appear that Costa Rican legislation, if effectively applied in practice, can be regarded as inadequate to ensure the free exercise of trade union rights.
  86. 86 The complainants, however, refer to specific cases in which existing safeguards have in their view been flouted or circumvented. These allegations are examined below.
• Allegations respecting an Attack by Government Forces on Trade Unionists in the Estrella Valley
  87. 87 The complainants allege that, especially in the Atlantic and Pacific coastal areas where there are extensive banana plantations and in peasant farming areas, the government authorities interfere on various pretexts in the trade union meetings of agricultural workers. More specifically, the complainants allege that in May 1969 in the Estrella Valley a group of trade unionists were attacked with tear gas bombs when they were on their way to their employer's office to present a claim.
  88. 88 In its observations the Government does not deny that it intervened in the dispute in the Estrella Valley; it declares, however, that a number of workers who did not wish to participate in the movement were prevented by the strikers from going to work and adds that the strike itself had been declared illegal by the competent judicial authorities by virtue of article 61 of the Constitution and sections 368 and 369 (b) of the Labour Code. Article 61 of the Constitution recognises the right to strike, except in public services, in so far as strike action is not accompanied by acts of coercion or violence. Section 368 of the Labour Code states that a strike is not permitted in the public services. Any disputes which may arise in public services between employers and employees and also in all other cases where strikes are prohibited must be referred to the labour courts for settlement. Finally, section 369 (b) defines, inter alia, as public services work performed by employees engaged in the sowing, cultivation, care or harvesting of agricultural or sylvicultural produce or in stock-raising, and likewise in the processing of the produce in cases where it would deteriorate if this were not done immediately.
  89. 89 In the light of the Government's explanations it would appear that a strike broke out in the Estrella Valley which was illegal on two distinct counts-first because of forcible constraint exercised by the strikers on other workers so as to prevent them from going to work even though they wished to do so, which in the Government's eyes justified its intervention; and secondly because, since the participants in the strike were workers engaged in handling perishable foodstuffs, they were deemed to be performing a public service and therefore were not entitled to take strike action.
  90. 90 Noting that by virtue of section 368 of the Labour Code mentioned in paragraph 88 above disputes between employers and employees in public services must be submitted to the labour courts for settlement, the Committee, before making its final recommendations on this aspect of the case, feels it should recommend the Governing Body to request the Government to be good enough to state whether the procedure prescribed by law was followed before the strike broke out and, if not, the reasons why this procedure was not set in motion.
• Allegations relating to the Expulsion of Union Leaders from the Banana-Growing Area Owned by the Ticaban Company
  91. 91 The complainants allege that union leaders were expelled by the police from the area owned by the foreign-owned Ticaban banana company.
  92. 92 In its reply the Government states that trade union activities, like any other activities unconnected with individuals' employment, must not be carried out during working hours, nor may they be carried out at the place of work or on the employer's property except with his express or tacit consent; it follows that, unless this consent is given, such activities can be regarded as a breach of the prohibitions and obligations imposed on workers by sections 71 and 72 of the Labour Code. Moreover, the carrying on of trade union activities by individuals unconnected with the company on the employer's property could also be regarded as a breach of the principle of the inviolability of property laid down by article 45 of the Constitution. Accordingly, any person, whether a union leader or not, who enters company property can be expelled by the police at the employer's request. This would appear to have occurred in the present case.
  93. 93 The Committee has already had occasion to examine the special case of plantation workers in Costa Rica where trade union activities are concerned. In doing so it has recalled the importance it attaches to the principle laid down by the ILO Plantations Committee at its First Session (Bandung, December 1950) that employers of plantation workers should provide unions with facilities for the conduct of their normal activities, including office accommodation and freedom of entry. It also recalled that in a previous case, when called upon to examine allegations concerning the opposition of plantation employers to the carrying out of trade union activities on their property, it had, while recognising fully that the plantations were private property, taken the view that as the workers not only worked but also lived on the plantations it was only by entering the plantations that trade union officials could normally carry on trade union activities among the workers and that it was specially important that the entry of such officials to the plantations for the purpose of lawful trade union activities should be readily permitted, provided that there was no interference with the carrying on of the work during working hours and subject to any appropriate precautions for the protection of the estate. On this point the Committee also feels it is worth recalling legal opinion No. 1772 of 5 September 1967 issued by the Minister of Labour of Costa Rica at the time, which was forwarded to the Committee of Experts on the Application of Conventions and Recommendations and brought to the Committee's notice, whereby in the Government's view, union leaders, provided they abide by the law, are entitled to use public highways crossing plantations, to have access to public places, to enter villages and to discuss any matters of interest to them in workers' homes on condition that the workers in question give their consent and the law of the land is observed.
  94. 94 The facts of the present case show that the position in Costa Rica as regards the exercise of trade union activities by plantation workers does not appear to have changed since it was last examined by the Committee. Accordingly, the Committee feels bound to reiterate its conclusions in previous cases by recommending the Governing Body once more to remind the Government of the importance it attaches to safeguarding the right of entry to plantations by trade union representatives engaged in lawful trade union activities and to the right of plantation workers to hold trade union meetings on the spot; to express the concern it feels that its earlier recommendations to the Government in various similar cases do not appear to have led to the adoption of practical measures to implement this right; and to request the Government to keep it informed of any measures it may have taken or be planning to take to this end.
• Allegations relating to a Clash Between the Police and Workers at Puerto Limón
  95. 95 The complainants allege that in May 1969 the police fired on workers at the Puerto Limón docks when they called a peaceful strike to obtain their rights from a foreign company-the Northern Railway Company-and a state-owned body; as a result a number of them were injured, two of them seriously.
  96. 96 In its observations the Government gives the following version of its findings. When the Puerto Limón docks were transferred by their operator, the Northern Railway Company, to the Atlantic Coast Harbour and Economic Development Board (an autonomous state agency) the workers, in breach of section 37 of the Labour Code, refused to accept the fact that one employer had merely been replaced by another and claimed that there had been a contractual change entitling them to payment of statutory compensation. The authorities to whom the demand was submitted refused to accept this interpretation and the workers, at their union's instigation, thereupon called a strike which was declared illegal by the labour courts under sections 368 and 369 of the Labour Code referred to earlier. Despite this, the Government continues, the workers continued their strike, using force to stop others who wished to go to work from doing so and thereby paralysing the country's largest port for both imports and exports. The Government adds that the strike was far from peaceful and that the police when sent to maintain order were attacked by the strikers with sticks and stones.
  97. 97 From the evidence at the Committee's disposal it would appear that, following a difference in interpretation of the nature of the change of employer of the Puerto Limón dockers, a strike was called, that this strike was declared illegal by the labour courts in accordance with the law and that it degenerated into violence.
  98. 98 It would appear to the Committee that the case had its origin in what amounted to a dispute over a point of law, and it considers that settlement of the case should have been left to the competent courts. Accordingly, the Committee does not consider that there has been a breach of freedom of association and it therefore recommends the Governing Body to decide that this aspect of the case does not call for further examination on its part.
• Allegations relating to the Dismissal of Trade Unionists by Plantation Employers
  99. 99 The complainants allege that the Costa Rican Banana Company (among others) had dismissed trade unionists who refused to resign from their union and likewise dismissed workers who carried out any trade union activities; in this way it prevented any possibility of collective bargaining. The complainants allege more precisely that in June and July 1969 large-scale dismissals took place in the Quepos and Parrita districts " in order to defeat a movement seeking to secure a few benefits by means of petitions ".
  100. 100 The complainants further allege that the banana planters on the Atlantic coast dismiss active trade union members and workers whom they suspect of belonging to a union " in order to prevent the development of trade unionism ". In October 1969, it is alleged, the fruit company dismissed forty trade unionists.
  101. 101 In its reply to these allegations the Government quotes the relevant clauses of the Labour Code. Section 28 stipulates that: " A contract of employment concluded for an indefinite period may be terminated by any one of the parties, without good reason, provided that notice is given to the other party...". Section 29 states that: " If a contract of employment concluded for an indefinite period is terminated ... by unjustified dismissal or for any other reason for which the employee is not responsible, the employer shall be bound to pay him a leaving grant. .". Lastly, section 85 gives " the desire of the employer " as a reason for terminating the contract of employment.
  102. 102 It was noted earlier (paragraph 81) that under section 271 of the Code no individual may be compelled to become a member of an association or to refrain from doing so; it should also be noted that section 70 of the Code makes it an offence for an employer to " compel an employee by any means whatsoever to withdraw from a lawful industrial association or group of which he is a member, or influence him in his political decisions or religious convictions."
  103. 103 The Committee observes that the foregoing provisions are along the same lines as Article 1 of Convention No. 98, paragraph 2 (b) of which stipulates that workers must enjoy adequate protection against acts calculated to cause dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours, or, with the consent of the employer, within working hours.
  104. 104 On the other hand, taken in conjunction, the provisions listed in paragraph 101 above enable employers in practice-on condition that they pay the compensation prescribed by law for cases of unjustified dismissal-to get rid of any worker, even if the true reason is his trade union membership or activities.
  105. 105 It would appear that, as the complainants allege, there are certain cases in which by virtue of these provisions the national legislation does not give sufficient protection against the acts of anti-trade union discrimination defined in Convention No. 98, which has been ratified by Costa Rica.
  106. 106 It is true that the Government in its reply mentions a tripartite council to which it considers the complaining organisation should have submitted its case (see paragraph 84 above). However, in view of this council's terms of reference as defined in Decree No. 5 dated 2 March 1967, it does not seem to the Committee that this body has power to do anything more than periodically examine and assess the degree of freedom of association in the country; accordingly, it does not seem to the Committee that it is in a position to reverse, where necessary, any victimisation of workers, especially in the form of dismissal as a result of their trade union membership or activities.
  107. 107 Accordingly, the Committee recommends the Governing Body in the first place to request the Government to consider taking all appropriate measures to give adequate protection to all workers against acts of anti-trade union discrimination as provided for by Convention No. 98, which has been ratified by Costa Rica, and to keep the Governing Body informed of any steps it has taken or is planning to take to this end, and in the second place to call the attention of the Committee of Experts on the Application of Conventions and Recommendations to the foregoing.
• Allegations Relating to the Dismissal of Workers at the Luxform Underwear Factory
  108. 108 The complainants allege that, like the planters, manufacturers also resort to dismissals in order to boycott the trade union movement. " All of them " assert the complainants, " make extensive use of various means of persuasion to induce workers to withdraw from the unions or to refuse to join them at all. In the latest case, which occurred at the Luxform underwear factory in March 1969, the management preferred to dismiss all the union members with appropriate compensation rather than permit them to remain organised. This was with the approval of the Ministry of Labour."
  109. 109 In its observations the Government declares that the events at the Luxform factory did not amount to anti-trade union action. The employer had encountered repeated refusal by a particular group of workers to carry out the management's instructions regarding the performance of the work, which led to friction between this group of workers and the employer. The workers' union intervened, as did the Minister of Labour, in an attempt to reconcile the two conflicting points of view. The Government declares that the workers themselves decided to leave the firm-many of them already having found jobs elsewhere with the consent of the Costa Rican General Confederation of Workers and not that of the Ministry as the complainants allege.
  110. 110 It would appear from the Government's explanation that, following a dispute in the Luxform factory, a group of workers decided to leave; it would also appear that they took this decision of their own accord and did not leave the jobs as a result of dismissal.
  111. 111 Accordingly, taking the view that the complainants have supplied no evidence that there was any infringement of trade union rights, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.
• Allegations regarding the Threat of Action against the Workers' and Peasants' Movement
  112. 112 The complainants allege that, in view of the growing discontent among workers and peasants about poor working conditions, the Government of Costa Rica, instead of taking steps to foster normal bargaining between employers and workers, is preparing to act " with the utmost violence " against the workers' and peasants' movement.
  113. 113 In its observations on this aspect of the case the Government once more refers to the Constitutional and statutory provisions mentioned in paragraphs 81 and 82 above and to the fact that the standards of Conventions Nos. 87 and 98 are embodied in the national legislation. It considers that, taken as a whole, this body of legislation gives the country's trade union movement all the safeguards it needs.
  114. 114 The Government goes on to say that, far from taking action against the workers' and peasants' movement, the authorities have made recommendations and passed legislation to assist its development. It quotes Act No. 4179 of 21 August 1968 and Act No. 4351 of 11 July 1969 establishing the People's Development Bank and promoting co-operative organisations respectively. The aim of the former of these two enactments is to safeguard the economic well-being and welfare of workers in general and to foster the development of the trade union and co-operative movements.
  115. 115 Noting the Government's observations on this aspect of the case, the Committee, in view of the fact that the complainants have not made any precise allegations but have confined themselves to expressing fears about the future, considers that further examination of the case is not necessary and recommends the Governing Body to decide to this effect.
• Allegations regarding Action against Mr. Juan Rafael Solis Barboza, Press Secretary of the Complaining Organisation, at the Instigation of the Costa Rican Authorities
  116. 116 It is alleged that in June 1966 Mr. Juan Rafael Solis Barboza, press secretary of the complaining organisation (co-signatory of the present complaint), was to attend a trade union meeting at Santiago, Chile; when he checked in at El Coco Airport, continue the complainants, the Costa Rican authorities informed Interpol in Santiago so that he could be questioned on arrival.
  117. 117 As regards this aspect of the case, the Government explains that among the police controls on militant members of extremist political parties, the Pan-American Convention signed at Havana in 1928 (ratified by Costa Rica at the same time as by the other American republics) gives the immigration authorities of all the signatory countries extensive powers in allowing or refusing entry to foreigners likely to endanger public order. These powers include the right to check up on the purpose of their visit.
  118. 118 The complainants do not allege that Mr. Solis Barboza was prevented from leaving Costa Rican soil to attend a trade union meeting in Chile and merely allege that the Costa Rican authorities warned the Chilean authorities of his arrival in Chile.
  119. 119 It would appear that this step by the Costa Rican authorities was taken by virtue of reciprocal agreements deriving from the Pan-American Convention signed at Havana. It would appear, moreover, that the Chilean authorities confined themselves to checking up on the purpose of this visit by Mr. Solis Barboza. The Committee notes finally that it is not alleged that he was refused entry into Chile or the right to attend the trade union meeting in question.
  120. 120 Accordingly, in view of the fact that the complainants have not supplied evidence that there has been any infringement of trade union rights, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination on its part.

The Committee's recommendations

1. 121. As regards the case as a whole, the Committee recommends the Governing Body:
   • (a) to decide, for the reasons given respectively in paragraphs 97 and 98, 110 and 111, 115 and 118 to 120 above, that the allegations relating to clashes between the police and strikers at Puerto Limón, the dismissal of workers from the Luxform underwear factory, the threat of action against the workers' and peasants' movement and measures taken against Mr. Juan Rafael Solis Barboza, the press secretary of the complaining organisation at the instigation of the Costa Rican authorities, do not call for further examination on its part;
   • (b) as regards the allegations concerning the expulsion of union officials from the banana-growing district of the Ticaban company, and for the reasons given in paragraphs 93 and 94 above:
   • (i) to remind the Government of the importance it attaches to giving trade union representatives the right of entry to plantations for the purpose of trade union activities and to the right of plantation workers to hold trade union meetings on the spot;
   • (ii) to express its concern about the fact that its previous recommendations to the Government relating to the right of entry and assembly do not appear to have led to the taking of action to implement this right;
   • (iii) to request the Government to keep it informed of any measures it has adopted or is planning to adopt to this end;
   • (c) as regards the allegations concerning the dismissal of trade unionists from plantations, and for the reasons given in paragraphs 104 to 107 above:
   • (i) to note that in certain cases, by virtue of sections 28, 29 and 85 of the Labour Code, the national legislation does not appear to afford sufficient protection against acts of anti-trade union discrimination as provided for by Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has been ratified by Costa Rica;
   • (ii) to request the Government to envisage appropriate action to give adequate protection to all workers against acts of anti-trade union discrimination, as provided for by Convention No. 98;
   • (iii) to request the Government to keep the Governing Body informed of any steps it has taken or is planning to take to this end;
   • (iv) to call the attention of the Committee of Experts on the Application of Conventions and Recommendations to the foregoing;
   • (d) as regards the allegations concerning the attack by Government forces on trade unionists in the Estrella Valley, and for the reasons given in paragraphs 89 and 90 above:
   • (i) to note that under section 368 of the Labour Code disputes between employers and employees in public services must be submitted to the labour courts for settlement;
   • (ii) to request the Government to be good enough to state whether the procedures, provided for by law were followed before the outbreak of the strike in question and, if not, the reasons why the said procedures were not set in motion;
   • (iii) to take note of the present interim report, it being understood that the Committee will make a further report when it is in possession of the additional information requested from the Government in this paragraph.
     • Geneva, 27 May 1970. (Signed) Roberto AGO, Chairman.