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Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 278, Junio 1991

Caso núm. 1483 (Costa Rica) - Fecha de presentación de la queja:: 21-DIC-88 - Cerrado

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  1. 174. In its last interim report on this case (see 257th Report, paras. 240-322, approved by the Governing Body at its 246th Session (November 1990)), the Committee requested certain information from the Government and, noting that the points of view expressed by the complainant organisation and the Government differed on several important issues, recommended the Governing Body to invite the Government to accept a direct contacts mission to Costa Rica so as to examine the allegations in full knowledge of the facts (see 257th Report of the Committee, paras. 321 and 322(h)). The Government accepted the mission in a communication dated 25 January 1991.
  2. 175. The Committee notes that the mission took place from 3 to 10 April 1991 and was headed by Mr. Enrique Marín Quijada, Professor of Labour Law at the Central University of Venezuela and the Andrés Bello Catholic University; he was accompanied by Messrs. Bernard Gernigon, Chief of the Freedom of Association Branch of the ILO, and Alberto Odero, member of that Branch.
  3. 176. The Committee notes that the mission was received by His Excellency, the President of the Republic, Rafael Angel Calderón Fournier, the Vice-President of the Republic, Germán Serrano Pinto, the Minister of Labour and Social Security, Carlos Monge Rodríguez, and several officials of the Ministry of Labour, and held meetings with the most representative workers' and employers' organisations, senior representatives of the Legislature and the Judiciary and professors of labour law, representatives of solidarist associations and other persons aware of the questions raised in the ICFTU's complaint. (Annexed to this paper are the mission report and the full list of persons and organisations with whom meetings were held.)
  4. 177. The Committee observes with interest that the Government supplied the widest possible facilities to ensure the smooth running of the mission, and notes the strong spirit of cooperation shown by the authorities and the other interlocutors. It wishes to express its thanks to Mr. Enrique Marín for his detailed report on the issues raised in the complaint, of which it has taken due note. The Committee has also taken note of a communication from the Government dated 3 April 1991, delivered by hand to the mission, the contents of which are reproduced below.
  5. 178. 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 Government's recent observations

A. The Government's recent observations
  1. 179. In its communication of 3 April 1991, the Government states that the ICFTU's accusations concerning alleged violations of freedom of association are not true and requests the closing of this complaint. The Government indicates that in Costa Rica it is not only the solidarist associations who administer or participate in the management of the termination funds. There is no factual or legal monopoly in favour of the solidarist movement in this area, or discrimination against the trade union movement. What has happened in reality is that a normative process has begun, through collective labour agreements, which governs trade union participation in the administration of the termination funds of the workers. An example of this is the collective agreements concluded in the Grecia municipality, in the Council for the Administration of Ports and Development of the Atlantic Zone (JAPDEVA in Spanish) and in the Costa Rican Petroleum Refinery (RECOPE), where clauses covering this very point have been included.
  2. 180. The Government adds that it is still willing and has decided to prepare legislative amendments to revise the standards covering the activities of solidarism in Costa Rica (the Solidarist Act), guaranteeing that the scope of union action will not be subject to discrimination.
  3. 181. With regard to the ballots organised to determine the certification of a union for negotiation purposes when there is a request from a permanent committee of workers to negotiate a direct settlement, the Government repeats the statements it made in November 1990 to the effect that, on this particular issue, only one ballot had been organised by the Ministry of Labour (General Labour Inspectorate) to solve the case of the BANDECO banana company when, on 25 June 1986, the voters favoured the direct settlement instead of the conventional instrument (the collective agreement).
  4. 182. In addition, the Government sends statistics on the number of unions and solidarist associations and on the total number of workers belonging to each of them. This shows that, despite the existence of a higher number of registered solidarist associations, in a process of joining together, the number of workers affiliated to unions is in fact the higher. The Government also sends statistics on the number of collective agreements and direct settlements by branch of activities and indicates that, in total, there are also more collective agreements than direct settlements (the Government no doubt refers to the total number of collective agreements and direct settlements throughout the period under examination). According to the Government's statistics, in 1986 there were 335 unions (having 138,583 members) and 862 solidarist associations (having 32,143 members) and in 1990, 420 unions (with 154,469 members) and 1,154 solidarist associations (with 113,879 members); as for collective agreements and direct settlements, in 1980-81, 85 collective agreements and 24 direct settlements were concluded, in 1986-87, 44 collective agreements and 67 direct settlements, and in 1990 to 9 February 1991, 32 collective agreements and 40 direct settlements were signed.
  5. 183. Since the report of the direct contacts mission gives a summary of the allegations, of the Government's replies and of the Committee's conclusions in its two previous examinations of the case, the Committee can proceed directly to its conclusions.

B. The Committee's conclusions

B. The Committee's conclusions
  1. 184. The Committee observes that this case raises three basic issues: (1) the alleged interference of solidarist associations in union activities including collective bargaining through the signing of "direct settlements"; (2) the alleged existence of dismissals or other prejudicial acts based on trade union reasons or favouring membership of solidarist associations and the inadequate legal protection against this type of act; (3) the alleged unequal treatment between solidarist associations and unions in the legislation.
  2. 185. As regards the alleged interference of solidarist associations in trade union activities including collective bargaining through "direct settlements" (concluded between an employer and a group of non-unionised workers, even when a union existed in the enterprise), the Committee observes that according to the report submitted by the representative of the Director-General, labour-related action (by the solidarist organisations) had resulted in the signature of a series of direct setlements. In addition, according to the mission report which cites government sources, the total number of current collective agreements in the private sector alone is 15, whereas there are 87 direct settlements. The Committee also notes that according to the mission report: "The interference by solidarist associations in trade union activities was shown to the mission by representatives of the Government, of the academic world, or by union representatives and employer representatives and at least by a portion of the solidarist representatives interviewed." The mission report goes on: "In particular, the President and the First Vice-President of the Republic agreed that, in practice, solidarism was carrying out trade union functions and that it was necessary to separate by law their roles. Government authorities gave assurances that there was a willingness to adopt shortly appropriate legislative or other types of measures to guarantee the real separation of functions between unions and solidarist associations."
  3. 186. As for the alleged dismissals or other prejudicial acts based on trade union reasons or aimed at encouraging membership of solidarist associations, and the inadequate legal protection against this type of act, the Committee notes that the legislation does allow dismissal without the grounds being specified if the corresponding commpensation is paid (including cases involving trade union leaders) and that the fines for violations of the provisions of the Labour Code (at least those relating to freedom of association) are clearly outdated as the amount cited is 300 to 1,000 colones which is equivalent to less than US$9. The Committee also notes that, according to the mission report, there was "evidence from trade unions and from labour authorities that dismissals and other prejudicial acts based on trade union reasons had taken place and were continuing to take place". The mission report "noted wide consensus on the need to introduce detailed and appropriate legislation regarding trade union immunity (fuero sindical) which would grant effective protection. The Government, and in particular the President of the Republic, demonstrated the greatest willingness towards adopting effective legislation along these lines. The employers were not opposed to the principle of protection of trade union leaders (although they had misgivings regarding certain modalities) as long as the obligations concerning their leadership were laid out". The Committee also notes that there is currently draft legislation elaborated by the Ministry of Labour which would considerably strengthen the fines for violations of the Labour Code and which would establish a new system.
  4. 187. As regards the treatment under the legislation of solidarist associations and trade union organisations, the Committee notes from the mission report that: "... there was no doubt that the law granted a series of advantages to solidarist associations over unions in certain areas (the minimum number of workers required, the possibility of engaging in profit-making activities, access to compensation in cases of justified dismissal, the possibility of managing termination funds, etc.)". In this respect, the Committee observes that for a solidarist association to be formed 12 workers were needed, whereas a union required 20; and yet most enterprises in Costa Rica employed barely 20 workers or less. The Committee also observes that, according to the mission report, "There was wide agreement (Government, trade union organisations and employer organisations) on the need to abolish the discrimination which presently existed concerning the termination funds between workers who were members of a solidarist association and other workers; this could be done through legislation which extended the advantages contained in the Act on Solidarist Associations and which would declare access to such funds as a right of all workers, no matter how their employment relationship had been terminated".
  5. 188. From the information provided by the Director-General's representative in his mission report, the Committee concludes that the interference of solidarist associations in trade union activities including collective bargaining, through direct settlements signed between an employer and a group of non-unionised workers even when a union existed in the undertaking, does not promote collective bargaining as set out in Article 4 of Convention No. 98 which refers to the development of negotiations between employers or their organisations and workers' organisations. The Committee also considers that, since solidarist associations are financed partly by employers, are comprised of workers but also of senior staff and personnel having the employers' confidence and are often started up by employers, they cannot play the role of independent organisations in the collective bargaining process, a process which should be carried out between an employer (or an employers' organisation) and one or more workers' organisations totally independent of each other. This situation therefore gives rise to problems in the application of Article 2 of Convention No. 98 which sets out the principle of full independence of workers' organisations in carrying out their activities. The Committee therefore expresses the hope that the Government will urgently take the necessary legislative measures and other measures to guarantee that solidarist associations do not get involved in trade union activities.
  6. 189. The Committee also observes that the current Labour Code allows dismissal without giving reasons if the corresponding compensation is paid (including the case of trade union leaders and of workers involved in trade union activities) and provides anachronistic fines for infringements of the provisions concerning freedom of association (between 300 and 1,000 colones, or less than US$9). It concludes that this situation does not provide adequate protection against acts of anti-union discrimination as set out in Article 1 of Convention No. 98. The Committee observes that the Committee of Experts on the Application of Conventions and Recommendations is of the opinion that the law concerning protection against anti-union discrimination is not in conformity with Article 1 of Convention No. 98. It thus expresses the hope that the Government will urgently adopt the necessary legislative measures or other measures to guarantee the effective protection against any form of anti-union discrimination.
  7. 190. Lastly, as regards the treatment in the legislation of solidarist associations and trade union organisations, the Committee concludes that the legislation does grant solidarist associations a series of major advantages over unions in certain areas, in particular as regards the minimum number of workers required, access to compensation in cases of justified dismissal, the possibility of managing the termination funds, etc. In this respect, the Committee takes note of the Government's intention to give statutory recognition of access to termination funds as a right of all workers, no matter how their employment relationship had been terminated. It considers that the legislation should also set out equal requirements for unions and solidarist associations as regards the minimum number of workers required for their creation. The Committee therefore expresses the hope that the Government will urgently take the necessary legislative measures and other measures to abolish any inequalities of treatment.

The Committee's recommendations

The Committee's recommendations
  1. 191. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
    • (a)The Committee takes note of the report of the direct contacts mission which took place in Costa Rica from 3 to 10 April 1991 and observes with interest that the Government supplied the widest possible facilities to ensure the smooth running of the mission and the strong spirit of cooperation shown by the authorities and the other interlocutors.
    • (b)The Committee notes that the legislative and practical situation has given rise to problems in Costa Rica concerning its application of Convention No. 98, and it notes with interest the Government's willingness to introduce legislation to ensure the real separation of functions between unions and solidarist associations and to adopt effective trade union immunity and other measures that would guarantee adequate protection against anti-union discrimination.
    • (c)The Committee expresses the hope that the Government will urgently take the necessary legislative measures and other measures to guarantee that solidarist associations do not get involved in trade union activities, as well as measures to guarantee effective protection against any form of anti-union discrimination and to abolish any inequalities of treatment.
    • (d)The Committee draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations, and recalls that the ILO is at the Government's disposal to provide technical assistance in preparing draft legislation on the questions at issue.
    • (e)The Committee requests the Government to keep it informed of developments in these matters.

ANNEX

ANNEX
  1. Report on the direct contacts mission carried out in Costa Rica, from 3 to 10
  2. April 1991, by Mr. Enrique Marín Quijada, Professor of Labour Law at the
  3. Central University of Venezuela and the Andrés Bello Catholic University
  4. I. Introduction
  5. 1. On 21 December 1988 the International Confederation of Free Trade Unions
  6. (ICFTU) submitted to the Committee on Freedom of Association a complaint
  7. against the Government of Costa Rica, alleging the violation of trade union
  8. rights (Case No. 1483). Following receipt of the Government's observations,
  9. the Committee examined the case at its May and November 1990 meetings, and
  10. submitted two interim reports to the Governing Body (see 272nd and 275th
  11. Reports of the Committee, paras. 389 to 444, and 240 to 322, respectively,
  12. approved by the Governing Body at its 246th and 248th Sessions (May-June and
  13. November 1990)).
  14. 2. In the most recent interim report on this case, the Committee requested
  15. specific information from the Government, and noted that the points of view
  16. expressed by the complainant organisation and the Government diverged in
  17. several important respects; with a view to securing the fullest possible
  18. information for the examination of the allegations, the Committee recommended
  19. to the Governing Body that it request the Government to accept a direct
  20. contacts mission to Costa Rica (see 275th Report of the Committee, paras. 321
  21. and 322(h)). The Government accepted the mission in a communication of 25
  22. January 1991.
  23. 3. The Director-General of the ILO designated me as his representative for the
  24. purposes of this direct contacts mission, which took place in Costa Rica from
  25. 3 to 10 April 1991. I was accompanied by Mr. Bernard Gernigon, Chief of the
  26. Freedom of Association Branch, and Alberto Odero, an official of that Branch.
  27. 4. The mission interviewed His Excellency, Mr. Rafael Angel Calderón Fournier,
  28. the President of the Republic, and Mr. Germán Serrano Pinto, the
  29. Vice-President of the Republic, Mr. Carlos Monge Rodríguez, Minister of Labour
  30. and Social Security, and other high officials of the Ministry of Labour, as
  31. well as the most representative organisations of workers and employers. In
  32. addition, the mission was received by senior representatives of the
  33. Legislature and the Judiciary. Moreover, it met with several professors of
  34. labour law, representatives of solidarist organisations and other individuals
  35. familiar with the questions raised in the ICFTU complaint. (The complete list
  36. of persons and organisations interviewed is appended to this report.)
  37. 5. The Government offered the mission every assistance to ensure its success,
  38. and I wish to express my gratitude for the spirit of cooperation shown by the
  39. authorities and other persons interviewed.
  40. II. Summary of the allegations and the Government's reply
  41. 6. The allegations presented by the ICFTU refer, first, to the intervention of
  42. solidarist associations in areas of industrial relations which are proper to
  43. trade unions (collective bargaining, the participation of solidarist
  44. representatives in economic and social bodies which are traditionally of a
  45. tripartite nature), and to questions of inequality of treatment between
  46. solidarist associations and trade unions both in law and in practice (the
  47. minimum number of members required, the scope of lawful economic activites,
  48. state subsidies) and, secondly, to the lack of legal protection against acts
  49. of discrimination such as dismissal (the Labour Code authorises dismissals
  50. without requiring employers to state the reasons which motivated them) or a
  51. deterioration in the conditions of work owing to membership of a trade union
  52. or participation in trade union activities, or to the failure to affiliate
  53. with a solidarist association (the sanctions prescribed the the Code are
  54. limited to a fine of 300 to 1,000 colones). The ICFTU had emphasised the boom
  55. in the number of solidarist associations under employer control, and a
  56. corresponding fall in the number of trade unions, a significant drop in the
  57. number of collective agreements in recent years and their replacement by
  58. "direct settlements" (concluded between a group of non-unionised workers and
  59. the employer, even where trade unions existed), the dismissal of 74 trade
  60. union leaders and trade unionists and the testimony of workers who had come
  61. under pressure to affiliate with solidarist associations and to withdraw from
  62. their trade unions.
  63. 7. The Government stressed that the solidarist movement was an expression of
  64. the constitutional right of association and that the growing popularity of the
  65. solidarist movement at the expense of the trade union movement was due in many
  66. cases to internal factors of trade union management which were beyond the
  67. competence of the Government. The Government denied the allegation that
  68. solidarist associations had been set up by law as a means of manipulation by
  69. sectors outside the working class and that workers were obliged by law to
  70. belong to them. The Government pointed out that section 8 of the Act on
  71. Solidarist Associations provided that such associations, their executive and
  72. administrative bodies and their legal representatives may not undertake any
  73. type of activity aimed at preventing or in any way impeding the establishment
  74. and operation of trade union and cooperative organisations, and that failure
  75. to comply with this provision was punishable by dissolution of the
  76. association.
  77. 8. The Government also stated that solidarist associations were not trade
  78. union organisations and had neither the nature or purpose of a trade union
  79. body since they were set up by workers in the form of a mutual benefit society
  80. (based on contributions from workers and from employers for various welfare
  81. programmes), and were not designed to defend the class interests of the
  82. workers' sector. Although the functions of solidarist associations and of
  83. trade unions were different, there might be some similarity between the
  84. activities of the former and the activities of trade unions in other
  85. countries. The Government denied that solidarist associations interfered with
  86. the aims and functions of trade unions, and pointed to the coexistence of
  87. trade unions and solidarist associations in 38 institutions and enterprises in
  88. both the public and private sectors. To prevent solidarist associations from
  89. impinging on the attributes and functions of the trade unions, such as
  90. collective bargaining, the Government had decided to submit a Bill to the
  91. Legislative Assembly which would prohibit the management and administrative
  92. bodies as well as the legal representatives of solidarist associations from
  93. participating directly or indirectly in collective negotiations on labour
  94. matters. The Government also stated that it had adopted the policy of refusing
  95. to approve and register direct settlements reached by any group of workers and
  96. their employer when negotiations were already under way with a view to
  97. reaching a collective agreement (such bargaining being one of the attributes
  98. of a trade union organisation).
  99. 9. As regards the extent to which solidarist associations were independent of
  100. the employer, the Government stated that although the employer made a monthly
  101. contribution to solidarist funds, the Act on Solidarist Associations
  102. established that the management boards must be made up solely of workers and
  103. that positions on the board may not be held by anyone representing the
  104. employer (whether directors, managers, auditors, administrators or other
  105. agents); the Act nevertheless states that the employer may appoint a
  106. representative who may speak but not vote at general assemblies and meetings
  107. of the management board, subject to approval by these bodies.
  108. 10. In addition, the Government has recognised that since the function of
  109. trade unions organisations "is not capital growth but the defence of its
  110. members' occupational and social interests, labour legislation has so far
  111. prohibited them from engaging in profit-making commercial activities" and that
  112. it is necessary and advisable to determine means of protecting the assets of
  113. trade union organisations by affording them the possibility of making
  114. profit-making investments, provided the profits were intended for specific
  115. purposes compatible with those defined by law for trade unions.
  116. 11. As regards the allegations of anti-union discrimination, the Government
  117. replied to allegations of eight instances of discrimination (dismissal of
  118. trade union leaders and of trade unionists who did not accept the solidarist
  119. model, pressure on workers to join solidarist associations or to leave a trade
  120. union, etc.), but merely stated for the rest that the allegations had no legal
  121. foundation in the majority of cases and that, in view of the volume of
  122. documentation involved, it was sending neither documents nor comments. The
  123. Government nevertheless stated that it had set itself the priority of revising
  124. labour legislation and bringing it up to date, including, in particular, a
  125. specific chapter on unfair labour practices (acts or omissions designed to
  126. constrain or prevent workers or groups of workers from exercising their rights
  127. or to restrict these rights, actions including inducing workers to join or
  128. leave particular unions, and unjustified or unlawful dismissal designed to
  129. undermine workers' support of trade unions).
  130. III. Conclusions formulated by the Committee on Freedom of Association
  131. 12. At its meeting of May 1990, the Committee noted that the Act on Solidarist
  132. Associations of 1984 provided that such associations may be formed by 12 or
  133. more workers. Section 4 defines the associations as follows:
  134. Solidarist associations are bodies of indeterminate duration which have their
  135. own legal personality and which, to achieve their purposes (the promotion of
  136. justice and social peace, harmony between employers and workers and the
  137. general advancement of their members), may acquire goods of all kinds,
  138. conclude any type of contract and undertake legal operations of any sort aimed
  139. at improving their members' social and economic conditions so as to raise
  140. their standard of living and enhance their dignity. To this effect they may
  141. undertake savings, credit and investment operations and any other financially
  142. viable operations. They may also organise programmes in the areas of housing,
  143. science, sport, art, education and recreation, cultural and spiritual matters
  144. and social and economic affairs and any other programme designed legally to
  145. promote cooperation among workers and between workers and their employers.
  146. Section 18 of the Act lists the income of solidarist associations as coming
  147. from the following:
  148. (a) The members' minimum monthly savings, the percentage of which shall be
  149. determined by the general meeting. The percentage may in no case be less than
  150. 3 per cent nor more than 5 per cent of the remuneration ... Members may save a
  151. higher sum or percentage voluntarily ... Members authorise their employer to
  152. deduct the relevant amount from their remuneration and to pay it to the
  153. association ...
  154. (b) The employer's monthly contribution on behalf of his workers, which shall
  155. be determined by common agreement between the two sides in accordance with
  156. solidarist principles ... (See 272nd Report, para. 441.)
  157. 13. The Committee expressed its serious concern at the weakening of the trade
  158. union movement in Costa Rica and the considerable decline in the number of
  159. trade union organisations in recent years. It appeared to the Committee on the
  160. evidence so far available that these phenomena were connected with the
  161. development of solidarist associations. The Committee emphasised in this
  162. connection the fundamental importance of the principle of tripartism advocated
  163. by the ILO, which presupposed organisations of workers and of employers which
  164. were independent of each other and of the public authorities. Given the
  165. importance of this principle, the Committee expressed the hope that the
  166. Government would take measures, in consultation with the trade union
  167. confederations, to create the necessary conditions for strengthening the
  168. independent trade union movement and for developing its activities in the
  169. social field. (See 272nd Report, para. 442.)
  170. 14. At its meeting of November 1990, the Committee formulated the following
  171. conclusions. (See 275th Report, paras. 316 to 321.)
  172. From all the information contained in the allegations and in the Government's
  173. replies, the Committee infers that solidarist associations are associations of
  174. workers which are set up dependent on a financial contribution from the
  175. relevant employer and which are financed in accordance with the principles of
  176. mutual benefit societies by both workers and employers for economic and social
  177. purposes of material welfare (savings, credit, investment, housing and
  178. educational programmes, etc.) and of unity and cooperation between workers and
  179. employers; their deliberative bodies must be made up of workers, though an
  180. employer's representative may be included who may speak but not vote. In the
  181. Committee's opinion, although from the point of view of the principles
  182. contained in Conventions Nos. 87 and 98 nothing prevents workers and employers
  183. from seeking forms of cooperation, including those of a mutualist nature, to
  184. pursue social objectives, it is up to the Committee- in so far as such forms
  185. of cooperation crystallise into permanent structures and organisations- to
  186. ensure that the legislation on and the functoning of solidarist associations
  187. do not interfere with the activities and the role belonging to trade unions.
  188. The Committee notes with satisfaction the decisions taken by the Government
  189. and the intentions it expressed with respect to the important issues raised by
  190. the present case, with a view to clarifying the role of unions and solidarist
  191. associations and to improving the legislation. In practice, the Committee
  192. welcomes the fact that:
  193. - the Government has decided to submit a Bill to the Legislative Assembly
  194. whereby the management and administrative bodies as well as the legal
  195. representatives of solidarist associations would be prohibited from
  196. participating directly or indirectly in collective negotiations on labour
  197. matters, the purpose of the said Bill being to prevent solidarist associations
  198. from impinging on the attributes and functions of the trade unions, such as
  199. collective bargaining;
  200. - the Government, as a matter of policy, has made a point of refusing to
  201. approve and register direct settlements reached by any group of workers and
  202. their employer when proceedings were already under way by a trade union
  203. organisation with a view to reaching a collective agreement;
  204. - the Government has set itself the priority of revising labour legislation
  205. and bringing it up to date, including in particular a specific chapter
  206. ("unfair labour practices") on anti-union discrimination (actions or omissions
  207. designed to constrain or prevent workers or groups of workers from exercising
  208. their rights or to restrict these rights; actions including inducing workers
  209. to join or leave particular unions; and unjustified or unlawful dismissal
  210. designed to undermine workers' support of trade unions);
  211. - the Government deems it necessary and advisable to determine means of
  212. protecting the assets of trade union organisations by affording them the
  213. possibility of making profit-making investments, provided the profits are
  214. intended for specific purposes compatible with those defined by law for trade
  215. unions.
  216. The Committee strongly hopes that the Government will take all necessary
  217. measures to implement as soon as possible its decisions and intentions
  218. concerning collective bargaining, anti-union discrimination the and economic
  219. activities of the trade unions, that it will consult the social partners in
  220. that respect, and that it will speed up the proceedings concerning the Bills.
  221. As regards the allegations of anti-union discrimination and interference
  222. (dismissals of trade unionists who do not accept the solidarist model,
  223. pressure exerted on workers to join solidarist associations or to leave trade
  224. unions, etc.), the Committee regrets that the Government has replied to only
  225. eight of the numerous allegations made by the complainant organisation
  226. (presented in September 1989). The Committee requests the Government to answer
  227. the other allegations.
  228. As regards the allegations that there is a drop in the number of collective
  229. agreements and an increase in the number of direct settlements, the Committee
  230. has not received the comparative table of collective agreements and direct
  231. settlements to which the Government refers in its reply.
  232. The Committee notes that the Government has presented statistics, according to
  233. which, so far, balanced amounts of public subsidies have been paid to trade
  234. unions and to solidarist associations, it has also sent the text of a Bill
  235. which establishes a tax ("the solidarist stamp") for the benefit of the
  236. solidarist movement. The Committee asks the Government to indicate whether it
  237. intends to maintain this balance in the future. In addition, the Committee
  238. wishes to be informed of the Government's views regarding the possibility of
  239. the law allowing trade union organisations to make use of the funds set aside
  240. for termination benefits in order to undertake activities in the social field.
  241. Finally, the Committee notes that the points of view expressed by the
  242. complainant organisation and the Government differ on several important
  243. issues, for instance as regards the alleged unequal treatment of unions and
  244. solidarist associations under the legislation and by the authorities, the
  245. allegation that the solidarist associations impinge upon the unions' exclusive
  246. attributes and functions and the situation, in practice, concerning acts of
  247. anti-union discrimination. In order to have all the necessary information to
  248. examine these allegations, the Committee recommends the Governing Body to
  249. request that the Government accept a direct contacts mission to Costa Rica.
  250. IV. Major aspects examined
  251. 15. Based on the mission's findings, the following paragraphs will examine
  252. various aspects of the complaint concerning, first, the activities of
  253. solidarist associations in industrrial relations and, second, the treatment
  254. accorded to solidarist associations and trade union organisations, as well as
  255. acts of anti-union discrimination. First, however, and in keeping with the
  256. guidelines of the Committee on Freedom of Association in the present case (see
  257. 275th Report, para. 316, reproduced in para. 14 of this report), it may be
  258. useful to review in general terms the development of solidarism and its
  259. repercussions on freedom of association.
  260. The development and implications of solidarism
  261. 16. Solidarism is a deeply rooted concept in Costa Rica, although it has a
  262. number of slightly different meanings, depending on whether it refers to an
  263. idea, to a movement, or to associations. First of all, solidarism is a concept
  264. which was introduced in 1947 by Alberto Martén, a Costa Rican citizen, with a
  265. view to promoting the joint action of employers and workers, to the benefit of
  266. the latter. In addition, it is common to speak of a solidarist movement, which
  267. promotes and fosters associations along one of at least two major
  268. orientations: that espoused by the Costa Rican Solidarist Union, a civil
  269. association, and that of the John XXIII Social School, created by the
  270. Archbishop of San José. Lastly, there are the solidarist associations; the
  271. first of these was set up in 1949 under the inspiration of Mr. Martén, under
  272. the General Act on Associations; since 1984 they have been governed by the Act
  273. on Solidarist Associations.
  274. 17. It is important to note that the three definitions of solidarism (as an
  275. idea, movement or association) may, in practice appear somewhat confused, and
  276. that there is some rivalry in the use of the term. In particular, references
  277. to a solidarist movement generally concern the Solidarist Union or the John
  278. XXIII Social School. Both of these bodies have collaborated in the past; in
  279. 1979 the Solidarist Union entrusted to the John XXIII Social School the
  280. training of solidarist workers and employers. At present, these institutions
  281. hold somewhat divergent positions, especially as regards trade unions, and
  282. each has its own field of action: the Solidarist Union is active mainly in the
  283. Central Valley, while the John XXIII Social School operates on the Atlantic
  284. Coast, where it is in full control of solidarist action, and in the Central
  285. Valley and the south.
  286. 18. These three exceptions as regards the meaning of solidarism can result in
  287. some confusion in examining the problems raised in the complaint; for while
  288. the complaint focuses on solidarist associations and the Act which governs
  289. them, it is impossible fully to understand the development of solidarism in
  290. Costa Rica, which really began only in the 1970s, and culminated in the
  291. adoption of the Act on Solidarist Associations, if one fails to take into
  292. account the existence, orientations and promotional or guiding activities and
  293. opinion-shaping measures of the Solidarist Union and the John XXIII Social
  294. School. In this connection, it may suffice to note that the number of
  295. solidarist associations increased dramatically as from 1979, the year in which
  296. these institutions entered into an agreement on cooperation. The growth in the
  297. number of solidarist associations is reflected below.
  298. Solidarist associations and trade unions
  299. Year Solidarist associations Trade unions
  300. 1979 168 *
  301. 1980 216 222
  302. 1981 * 281
  303. 1982 465 292
  304. 1983 * 291
  305. 1984 * 288
  306. 1985 * 359
  307. 1986 862 335
  308. 1987 976 356
  309. 1988 1089 411
  310. 1989 1175 469
  311. 1990 1154 420
  312. * No data.
  313. Source: Ministry of Labour and Social Security.
  314. Solidarist associations: Mutual benefit societies and industrial relations
  315. 19. In accordance with the Act on Solidarist Associations, these associations
  316. were comprised of and managed by workers; they were funded by minimum monthly
  317. contributions from their members and a monthly contribution from the employer,
  318. which is charged against what the employer was required to set aside for
  319. termination benefits (the termination fund). Solidarist associations may
  320. engage in a number of activities, including profit-making commercial
  321. activities, with a view to improving the socio-economic conditions of their
  322. members (sections 5, 14 and 16 of the Act on Solidarist Associations). These
  323. associations usually had savings and credit plans and, where they were in a
  324. position to do so, also engaged in the sale of consumer products, offered
  325. health services, housing, recreation, investment, enterprise creation and
  326. complementary pension schemes. From this point of view, solidarist
  327. associations bore a strong resemblance to mutual benefit societies; as a
  328. whole, they had amassed substantial funds and distributed dividends to their
  329. members. There were approximately 1,300 such associations at the moment.
  330. Thanks to the dynamism and effectiveness of their "mutualist" activities,
  331. solidarist associations enjoyed great prestige in Costa Rica, notwithstanding
  332. administrative or financial problems in some associations, which were usually
  333. due to employers being in arrears in their payment of contributions, or to
  334. risky loans made by an association to the enterprise in which its members
  335. worked. The mission was provided information on eight cases of enterprises in
  336. the private sector in which solidarist associations had serious temporary or
  337. irreversible financial problems; in addition, a survey in the public sector
  338. revealed that five of 38 associations faced problems owing to the failure of
  339. employers to make their regular contributions (N. Ortega and L.A. Cubero,
  340. Survey of Solidarist Associations in the Public Sector. Research for thesis on
  341. Rise and development of solidarism in the Costa Rican public sector, 1984-89,
  342. University of Costa Rica, Oct. 1990, table 32).
  343. 20. In addition to their "mutualist" functions, solidarist associations might,
  344. in practice, directly or indirectly undertake activities which clearly fell in
  345. the area of labour demands or industrial relations, which were proper to trade
  346. union organisations, and in spite of an express prohibition contained in the
  347. Act (section 8). This occurred spontaneously, when an association, in the
  348. absence of a trade union, was faced with the need to intervene on behalf or in
  349. defence of workers, for example, in order to avoid a dismissal or to oppose
  350. arbitrary measures taken by an employer, or to obtain wage increases or
  351. improvements in the condition of work. Or it could occur intentionally and
  352. with premeditation, for example, to promote the direct settlement of
  353. conditions of work with the employer. The mission was also informed that this
  354. activity of solidarist associations has contributed to minimising the demands
  355. of workers.
  356. 21. Solidarist leaders repeatedly informed the mission that solidarist
  357. associations, as such, did not play a role in workers' demands, although
  358. individual members of the association may do so. Nevertheless, in examining
  359. the specific activities of these associations, it was clear that these
  360. associations may be called upon to intervene in industrial relations, as
  361. alleged by trade union leaders. And in fact, the leaders of the Costa Rican
  362. Solidarist Union were unable to state categorically that certain associations,
  363. in particular those which they did not control, did not intervene in "trade
  364. union" functions. For their part, the leaders of the John XXIII Social School
  365. informed the mission that, thanks to solidarism, many enterprises on the
  366. Atlantic Coast had seen a revival of the occupational safety and health
  367. committees provided for in sections 193 and following of the Labour Code, and
  368. that the actions of these committees had helped considerably to reduce the
  369. incidence of employment accidents. In addition, the School provided training
  370. to workers concerning the rights and duties arising from employment contracts
  371. and had intervened with employers in serious cases of late payment of wages or
  372. dismissals, or in the promotion of direct settlements. Likewise, the
  373. representative of the Federation of Private Enterprises of Central America and
  374. Panama (FEDEPRICAP) stated, in an individual capacity, that solidarist
  375. associations could behave like trade unions through labour relations
  376. committees; he noted that in times of crisis solidarism may become a genuine
  377. trade union, inasmuch as the association's existence may reduce but did not
  378. eliminate confrontation with the employer, especially as regards the
  379. percentage of the employer's contribution. In addition, he stated that some
  380. enterprises took advantage of solidarist associations and used them to prevent
  381. the establishment of trade unions, against which they discriminated, as had
  382. occurred in banana plantations.
  383. 22. In reality, solidarism appeared to engage in competition with trade
  384. unionism when it made repeated references to the "solidarist option",
  385. suggesting that solidarist associations represented an alternative to trade
  386. unions or cooperatives. There would be no reason for such a comparison if the
  387. movements were entirely different. In an article published in 1984, which
  388. agreed with statements made to the mission, Mr. Rodrigo Jiménez, the Executive
  389. Director of the Solidarist Union, was reported to have said "... solidarism is
  390. compatible with trade unions and cooperatives, but differs considerably from
  391. both types of organisations, among other reasons because trade unionism
  392. promotes confrontation between workers and employers; it is ideological, has
  393. external influences and is financed by the contributions of workers (...);
  394. solidarism, on the other hand, is more advanced than cooperativism (and trade
  395. unionism) and pursues global improvements on the basis of an ethical
  396. understanding between workers and employers ..." (La República, 16-9-84). Mr.
  397. Jiménez also explained to the mission his point of view concerning the
  398. justification for associations and trade unions in the following terms: "A
  399. good employer needs a good solidarist association; a bad employer needs a good
  400. trade union".
  401. 23. For its part, the John XXIII Social School also seemed to be in
  402. competition with at least certain aspects of trade unionism, if one was to
  403. judge by the following description of its activities: "... Item 2:
  404. Establishment of solidarist associations in industrial, commercial and
  405. agricultural enterprises, whether public or private. In the past three years
  406. increasing importance has been given to the banana sector which, since 1930,
  407. has been dominated by the communists and trade unions and confederations which
  408. subscribe to that ideology". The School's position on trade unionism is the
  409. following: "... Solidarism, trade unionism, solidarist union: A. The John
  410. XXIII Social School, in promoting solidarism, does not underrate trade
  411. unionism. On the contrary, as an advocate of the Church's Social Doctrine, it
  412. supports and stimulates it. The problem resides in the fact that the majority
  413. of trade unions in Costa Rica, as elsewhere in Latin America, are dominated by
  414. communists. For this reason it is necessary to promote associations, such as
  415. solidarist associations, in order to purify the trade unions and seek the
  416. advancement of workers ..." (this quotation of a document of the John XXIII
  417. Social School is drawn from Juan José Flores, El solidarismo desde adentro,
  418. San José, ASEPROLA, 1989). The School defines the purposes of a solidarist
  419. association as follows: "... To improve wages, hours of work and other
  420. conditions of work, and to carry out a variety of projects for the benefit of
  421. workers without violence or class struggle. Solidarist associations seek
  422. harmony and the worker's contribution to the association to which he belongs,
  423. together with the contributions of the employer". (John XXIII Social School,
  424. La doctrina social de la Iglesia (Introducción a su estudio). Doctrinal
  425. series, San José, Ministry of Public Education, 1985, p. 74.) Along the same
  426. lines, the publications' branch of the labour relations department of the
  427. BANDECO company stated that: "... No one can fail to recognise the harm caused
  428. to the country and to certain private enterprises by certain trade union
  429. movements with a very negative bent (...). While these unfortunate events were
  430. taking place, (...) the seeds of solidarism were already germinating (...).
  431. The list of benefits which solidarism has brought is endless. (...) Social
  432. peace, good relations between management and labour, dialogue, economic
  433. well-being, mutual assistance, understanding, labour stability, freedom which
  434. has not degenerated into licentiousness, the sound organisation of solidarist
  435. associations, these are some of the fruits that come from a worker embracing
  436. the principles of solidarism, which are based on Christian social doctrine
  437. ..." (La Fagina, op. cit., p. 2).
  438. 24. The mission was told that in certain enterprises and public bodies
  439. solidarist associations and trade unions coexisted peacefully, each active in
  440. its own area, as evidence that they were not incompatible social
  441. organisations. A number of trade union representatives and workers noted,
  442. however, that such cases of coexistence were very rare, and this information
  443. was confirmed by other sources. They also stated that, in most cases, the
  444. presence of a solidarist association was considered as a threat by the trade
  445. union. In the survey of solidarist associations and trade unions in the public
  446. sector (pp. 11 and following, quoted in paragraph 19 of this report) the
  447. following tentative conclusions were formulated: (a) according to the majority
  448. of trade unionists interviewed: (1) the reasons for behind the creation of
  449. solidarist associations was the desire to obtain economic and social benefits
  450. for workers and to give employers the wherewithal to challenge the trade
  451. union; (2) solidarism did not supplant trade unionism because each had
  452. different objectives, different ideologies and trade unions were more
  453. confrontational; (b) according to the trade unionists: (1) the reasons for the
  454. establishment of solidarist associations were the search for the economic
  455. advancement of workers and the setting up of their own alternative; (2) the
  456. major contribution of solidarism in the public sector was to promote savings
  457. by the worker, to improve labour relations and to enhance the worker's
  458. socio-economic well-being; (3) solidarism did not supplant trade unionism
  459. because it had different objectives, but 61.5 per cent considered that
  460. solidarist associations might replace trade unions in industrial relations
  461. because solidarism sought harmony between the employer and the worker; (c)
  462. where both types of organisations coexisted, relations between them were
  463. considered good by 43.8 per cent of the solidarists interviewed, but by only
  464. 38.9 per cent of trade unionists interviewed; and both agreed that the State
  465. favoured the creation of solidarist associations through the Act on Solidarist
  466. Associations, institutional support and the transfer of funds set aside for
  467. termination benefits.
  468. 25. To gain first-hand knowledge of a successful experience in the coexistence
  469. of both types of social organisations, the mission was able to visit the
  470. headquarters of the solidarist association and the trade union of the Líneas
  471. Aéreas Costarricenses S.A. (LACSA) Costa Rican Airlines Company. There were
  472. several aspects of this case which made it exceptional: the enterprise had
  473. some 850 workers; most of them belonged to both organisations, and many of
  474. them had relatively high occupational skills. The association was founded in
  475. 1954 and had managed to grow on its own, uninfluenced by the Solidarist Union
  476. or the John XXIII Social School; it had a capital of some 200 million colones
  477. (US$1.6 million, approximately). The trade union dated back to 1970; there was
  478. a collective agreement in the enterprise pursuant to which termination
  479. benefits were virtually an acquired right for all workers, and not only for
  480. solidarists (other workers were denied this indemnity only in the event of
  481. fraud). There seemed to be no rivalry between the organisations (in a joint
  482. meeting several of their leaders explained to the mission the roles and
  483. advantages of each). According to the statements of solidarist representatives
  484. of LACSA and other persons interviewed, it appeared that it would be difficult
  485. to duplicate this situation in a small enterprise, and that it was practically
  486. impossible for an association and a trade union to be administered by
  487. different persons. For labour-related questions, the enterprise needed to have
  488. access to an interlocutor who spoke for the workers, and when this
  489. interlocutor was not a trade union, a solidarist association could carry out
  490. this role.
  491. Solidarism's incursion into labour relations: The administration of
  492. termination benefits, permanent committees and labour relations boards
  493. 26. The activities of solidarist associations, or of the solidarist movement,
  494. in labour relations could take one of three forms: the employer's
  495. contributions, the permanent committees through which agreement was reached on
  496. the so-called "direct settlements" and the labour relations boards.
  497. 27. The creation of a solidarist association presupposed the agreement of the
  498. employer, who made it possible by means of a cash contribution. This
  499. contribution consisted of a percentage of the compensation prescribed for the
  500. termination of a contract of employment without limit of time, which the
  501. employer was required to pay in the event of unjustified dismissal, justified
  502. retirement, or retrenchment for any cause against the worker's wishes (section
  503. 29 of the Labour Code), which he freely agreed to transfer to the association
  504. for it to administer. The very act of setting up the association depended on
  505. the wishes of the employer who agreed to finance it and who could insist on
  506. the fulfilment of certain conditions thus placing the association more or less
  507. under the employer's dominance. In addition, however, this act opened up the
  508. possibility of demands by the workers belonging to the association, either as
  509. regards the initial determination of the percentage of the employer's
  510. contribution, which may not be less than 3 per cent of the wage, or in the
  511. event that the employer, owing to economic difficulties, proposed temporarily
  512. to reduce the amount of the contribution (as had happened in a specific case
  513. cited by a leader of the Union of Chambers); or, conversely, to demand an
  514. increase in the employer's contribution, or other benefits for the
  515. association. In addition, as noted by trade union leaders, the employer's
  516. so-called contribution was in fact charged against an indemnity which the
  517. employer was required to pay to workers upon termination of their contracts of
  518. employment, and the administration of these funds should therefore be
  519. entrusted to a trade union organisation rather than a mutual benefit society,
  520. or at least to both under the same conditions.
  521. 28. At any given point in time, a permanent committee of workers might be set
  522. up within an enterprise to agree on a direct settlement concerning conditions
  523. of work. The Labour Code recognised collective agreements, signed by employers
  524. and workers' trade unions, as well as direct settlements, signed only by
  525. employers and workers, with or without the intervention of mediators. The
  526. principle of collective agreements was enshrined in the country's
  527. Constitution, and these agreements were designed to regulate employment
  528. conditions with "the force of law" (section 62 of the Constitution and section
  529. 54 of the Labour Code). Direct settlements, on the other hand, were a means
  530. employers and workers could use to resolve their differences (section 497 of
  531. the Labour Code).
  532. 29. Experience had shown that, owing to the weak presence of trade unions in
  533. enterprises, the positions on permanent committees were usually occupied by
  534. solidarists. The leaders of the John XXIII Social School and of the Solidarist
  535. Union claim that solidarists participated in these committees in an individual
  536. capacity. Nevertheless, a number of parties, including some solidarists,
  537. stated that the John XXIII Social School maintained a position which opposed
  538. the trade union movement and promoted direct settlements through permanent
  539. committees, and that the School went so far as to serve as the "mediator" in a
  540. number of specific direct settlements. This had been the case, for example, in
  541. Agroindustrial Pacuare S.A. (28-3-88), Yucatica SA (2-6-89) and Standard Fruit
  542. Company's Farm 6 at Rio Frio (16-9-89). The "mediator" was a third party
  543. acting in good faith to facilitate the settlement of a dispute (section 497 of
  544. the Labour Code), and the School's participation in the above-mentioned direct
  545. settlements evidenced its interest in the development of collective labour
  546. relations through the permanent committees. This interest had been mentioned
  547. no less than by the Director of the School, in a communication sent to the
  548. mission, as follows: "... In enterprises where solidarism exists, it is common
  549. to speak frequently with the different groups of workers, permanent committees
  550. (...) etc., (...). This has made it possible to consolidate the role of
  551. permanent committees as defenders of workers' rights". Although to a lesser
  552. extent, the Solidarist Union had also become involved in regulating the
  553. conditions of work through direct settlements, but it stated that it was
  554. currently against direct settlements as activities of solidarist associations
  555. and that it had an open attitude towards all of the trade union movement. In
  556. the opinion of one lawyer with ties to the John XXIII Social School, the
  557. members of permanent committees were usually solidarist leaders, which implied
  558. an overlap between the association and the committees; but in his opinion,
  559. this occurred very rarely because of the fact that trade unionism had become
  560. much weaker, while acknowledging that direct settlements have increasingly
  561. replaced collective agreements in the 1980s. He contended that the problem did
  562. not reside in solidarism, but in the use which employers made of a group of
  563. workers to undermine collective bargaining.
  564. 30. According to trade union representatives, various academic figures and
  565. labour lawyers, in practice, the direct settlement had been used by employers
  566. and by solidarist leaders not as a disputes settlement mechanism as provided
  567. in the Labour Code (section 497), but as a substitute for a collective
  568. agreement and to the detriment of any union presence. This had meant that the
  569. legal protection was wider in the case of collective agreements and their
  570. contents in general were clearly more advantageous to workers. According to
  571. trade union representatives, this had occurred in the following undertakings:
  572. Empacadora Costarricense Danesa SA (Plumrose), Standard Fruit Company,
  573. Yucatica SA and Agropalmito. In these cases, permanent committees and direct
  574. settlements appeared to be expressions of solidarist action, at least for some
  575. of these associations, in contrast to collective agreements which, by law,
  576. were part of union action. According to the tables supplied by the Government
  577. listing agreements and settlements signed between 1980 and 1989, since 1985 in
  578. the private sector direct settlements outnumbered collective agreements.
  579. According to officials of the Labour Affairs Department of the Ministry of
  580. Labour, 45 collective agreements were currently in force in the country (15 of
  581. which applied to the private sector) and 91 direct settlements were in force
  582. (87 of which covered the private sector); the total number of trade unions
  583. stood at 539 (having 167,275 members) and of solidarist associations at 1,335
  584. (having 173,269 members).
  585. 31. One professor of labour law told the mission that in the past an
  586. undertaking where there was a current collective agreement would install a
  587. solidarist association and when the agreement expired, the undertaking
  588. denounced it without the union having the possibility of requiring that its
  589. renewal, then allowing the possibility of a direct settlement to be entered
  590. into with a "permanent committee"; all this thus left the union with a merely
  591. symbolic role, or it simply disappeared. Something of this sort had happened
  592. at the Carmen SA banana company in 1986. According to official documents
  593. handed over to the mission, on 21 March 1986 the Secretary General of the
  594. Union of Agricultural Plantation Workers gave notice of the termination of the
  595. current collective agreement which it had signed with the company and sent the
  596. draft of a new agreement for discussion as from the following 14 April; on 29
  597. March the permanent committee signed a direct settlement with the company as
  598. was noted in the document deposited with the Ministry of Labour on 31 March
  599. 1986. A similar situation occurred at the Atlantis Costarican Company SA
  600. where, rather than signing a collective agreement with the union, a direct
  601. settlement was entered into and various worker leaders and trade union
  602. activists were dismissed. Something different occurred with the Union of
  603. Workers of the GuaCimo and Potosi Plantations: the dissolution of the union
  604. was requested and obtained from the courts, and of the 35 collective
  605. agreements it had negotiaited, 33 were not able to be renewed.
  606. 32. Representatives of employers and of the John XXIII Social School pointed
  607. out that in some cases the workers' preference for a direct settlement over a
  608. collective agreement was evidenced in a ballot and they repeatedly referred to
  609. the vote which had taken place in the Bandeco Company. The trade union
  610. leaders, including leaders from the Atlantic Zone, told the mission, however,
  611. that the only case of a ballot of this nature had been the Bandeco vote (which
  612. was confirmed subsequently by Ministry of Labour officials) and that it had
  613. involved serious irregularities.
  614. 33. In some cases there was jurisprudence contrary to the free acceptance of
  615. direct settlements (for example, a 1984 judgement was mentioned which refused
  616. to allow a late settlement without the signature of the workers' delegates).
  617. In addition, according to the Government's latest reply to the Committee on
  618. Freedom of Association of September 1990 and as noted by the mission, the case
  619. of the Agropalmito SA Company gave rise to a change in administrative
  620. practice. Following that case the Minister of Labour has decided to reject the
  621. approval and registration of a direct settlement if a collective labour
  622. agreement was being negotiated.
  623. 34. In companies there could also be a labour relations council created by
  624. agreement, namely a joint body to serve as a place for dialogue between the
  625. company and its workers and to monitor the fulfilment of contractual
  626. obligations. The solidarist leaders maintained that their associations did not
  627. interfere in the activities of the labour relations councils. Nevertheless,
  628. there were signs of a narrow link between the two. For the time being, in the
  629. organisational framework that the Solidarist Union proposed for the
  630. associations, several possible committees existed and one of them was the
  631. labour relations committee in whose activities the labour relations council
  632. was interested (see Costa Rican Solidarist Union, Solidarism: Tools for
  633. welfare, San Pedro, Sursum, 1989). For its part, the John XXIII Social School
  634. claimed the task of promoting "... the creation of employees' associations and
  635. labour relations councils in undertakings, ..." (El Solidarista Bulletin, John
  636. XXIII Social School, April 1978, No. 16). But, in addition, all the solidarist
  637. officials consulted were unanimous in recognising that, frequently, the worker
  638. members of the labour relations councils were members or even leaders of the
  639. corresponding solidarist association and, although they insisted that their
  640. participation was on an individual basis, it was difficult to separate this in
  641. reality from the creation and policies of the solidarist association or the
  642. solidarist movement. It must be kept in mind that most of the undertakings in
  643. Costa Rica have no more than 20 workers, or not even that many, which meant
  644. that the solidarist leaders were often also the persons chosen to take part in
  645. the labour relations councils. Moreover, from the philosophical point,
  646. solidarism did not favour confrontation between employer and workers, and,
  647. when faced with wage claims, preferred sharing the profits of the company. It
  648. was therefore normal that the fact that the same persons held office in the
  649. association and the council led to there being, in some cases, a certain
  650. influence- below the claims level- on the behaviour of the labour relations
  651. councils.
  652. 35. It is useful to examine a few direct settlements so as to understand the
  653. role and composition of the permanent committee, the labour relations council
  654. and the other joint bodies, as well as their links with solidarism and, in
  655. particular, with the John XXIII Social School. The mission examined the direct
  656. settlements covering the following enterprises: the Carmen SA Banana Company
  657. (31 March 1986), Empacadora Costarricacense Danesa SA (Plumrose) (23 April
  658. 1987), Agroindustrial Pacuare SA (28 March 1988), Yucatica SA (2 June 1989),
  659. Standard Fruit Company's Finca 6 in the Zona de Rio Frio (16 September 1989)
  660. and the Siquirres SA Banana Company. In some of these direct settlements, the
  661. company stated that it aimed at achieving a climate of genuine industrial
  662. peace in the framework of the solidarist principles and listed some of its
  663. aims: solidarity between the company and the workers; the constant improvement
  664. of the workers as human beings; and the ongoing improvement of working
  665. conditions. The permanent committee was defined as the legal body which
  666. represented workers in the workplace and was responsible for the examination,
  667. improvement and defence of their economic and social interests. It was the
  668. interlocutor with whom the company dealt when cases were presented to it so as
  669. to arrive at a climate of genuine industrial peace in accordance with
  670. solidarist principles. It was made up of a varying number of workers. The
  671. labour relations council was assigned the function of monitoring the
  672. implementation of the direct settlement and comprised, in general, three
  673. workers' representatives from the works committee and three representatives of
  674. management, although in one case a membership of two members from each party
  675. and a fifth elected by the majority was provided for. Some settlements
  676. envisaged the creation of an occupational safety committee having joint
  677. membership. Others included a clause recognising the solidarist association or
  678. undertaking to create such an association and to facilitate its functioning;
  679. other clauses called for support for solidarism either through the grant of a
  680. contribution so that an initial meeting could be held (called the general
  681. assembly of workers) or through the use of premises for "the permanent
  682. committee and other committees of solidarist associations", or through gifts
  683. of a fan or scales or through benefits given to the workers. The latter
  684. involved permission to take part in courses at the John XXIII Social School,
  685. or the grant of a place where a workers' club could be built with the
  686. solidarist association, or monetary gifts for celebrating mothers' or fathers'
  687. day, or the delivery of lower grade bananas for sale with the profits going to
  688. the association. In three of the above-mentioned settlements, one or several
  689. mediators had taken part on behalf of the John XXIII Social School. In these
  690. settlements there were indeed benefits for the School or for the association.
  691. Treatment of union organisations and solidarist associations
  692. 36. The complaint pointed out that the solidarist associations received
  693. preferential treatment from the legal point of view, and from the government
  694. and the employer sector, to the detriment of the trade union movement. The
  695. mission asked for information on the treatment of the two types of body and on
  696. the alleged anti-union discrimination.
  697. 37. From the standards point of view, the Constitution listed among the
  698. individual rights and guarantees, the right to associate for legal objectives,
  699. and declared that nobody could be obliged to join any association (section
  700. 25); it listed among the social rights and guarantees, the right of employers
  701. and workers freely to unionise with the sole objective of obtaining and
  702. maintaining economic, social or occupational benefits (section 60); it also
  703. required the promotion of cooperatives as a means of attaining better living
  704. conditions for workers (section 64). Thus the specific right to unionise had
  705. constitutional backing, whereas solidarist associations or other types of
  706. associations were expressions of the general right to associate.
  707. 38. As for the legislation, the treatment of solidarist associations- their
  708. creation and functioning- was simpler and more flexible than that accorded to
  709. trade unions. This could be seen from the standards relating to the minimum
  710. number of members, their right to compensation payments, the functions they
  711. were allowed to carry out, the penalties for deviating from their aims and the
  712. designation of their executive committees.
  713. 39. To set up a solidarist association, 12 workers were needed, whereas a
  714. union required 20 members. But not only was a lesser number required in the
  715. first case, but the minimum number of workers required to set up a works union
  716. was much higher and almost impossible to achieve in most Costa Rican companies
  717. because, as indicated above, the companies usually employed barely 20 workers
  718. or less. In addition, the workers most linked to the employer, and especially
  719. the employers' representatives, usually did not join a union; they were
  720. however members of the solidarist association. This meant that it was not only
  721. easier to set up a solidarist association rather than a union organisation
  722. (because of the minimum number of members required and the possibility of
  723. including workers who had the employer's confidence), but this minimum number
  724. made it impossible for a union to be formed in most of the country's
  725. undertakings.
  726. 40. By law, the solidarist association could count on a monthly contribution
  727. from the employer as part of its economic resources, a contribution that trade
  728. union organisations, of course, did not receive unless provided for in a
  729. collective agreement (which was a very rare occurrence). This contribution was
  730. considered to be part of the termination fund for the payment of compensation
  731. in certain cases of termination of the employment contract, such as
  732. unjustified dismissal, justified retirement or retrenchment for any cause
  733. against workers' wishes, in accordance with the Labour Code (section 29).
  734. However, under the Act on Solidarist Associations (section 21), each worker
  735. member who retired or was dismissed would receive from the termination fund at
  736. least the percentage that the employer had paid to the association.
  737. Consequently, this Act created a situation favouring workers in such
  738. associations over other workers in the undertaking as regarded the right to
  739. compensation benefits because some would receive them in any case of cessation
  740. of employment and others would not. This situation gave an advantage to the
  741. solidarist associations which the unions could not offer and resulted in a
  742. discrimination between workers. The unions were demanding the right to use the
  743. termination fund for all workers and the right to administer it in the same
  744. way as solidarist associations did.
  745. 41. Comments on the different treatment concerning the termination fund were
  746. made to the mission by the most varied sectors and, in particular, by the
  747. labour law professors who were consulted. However, at the same time, the
  748. representatives of management were hostile to the idea of extending the right
  749. to use the termination fund to all workers in circumstances such as those
  750. which workers belonging to a solidarist association have today, namely,
  751. without any distinction concerning the way in which the employment contract
  752. was terminated. Even the President of the Republic said that he agreed that
  753. the termination fund should be converted into a real right available to
  754. workers in all cases of cessation of the employment contract; he also shared
  755. the idea of recognising the right of workers to participate in the
  756. undertaking's profits.
  757. 42. As regarded the scope of economic activities permitted by legislation, the
  758. solidarist association could carry out an extremely wide range including
  759. profit-making operations (section 4 of the Act on Solidarist Associations); on
  760. the other hand, union representatives told the mission that unions were
  761. prohibited by law from engaging in profit-making commercial activities
  762. (section 280(b) of the Labour Code). This ban did not hinder them carrying out
  763. economic activities and, in particular, "creating, administering or
  764. subsidising institutions, establishments or social activities for common use
  765. such as cooperatives, sport, cultural, educational, and welfare societies"
  766. (section 270(c) of the Labour Code). The country also had a workers' bank
  767. which was managed mainly by the unions. However, as several persons pointed
  768. out, it was clear that on this point the Labour Code was less broad than the
  769. Act on Solidarist Associations.
  770. 43. It appeared that the recommendations made by the Committee on Freedom of
  771. Association in Case No. 1304 against the Government of Costa Rica had had an
  772. influence on one amendment in the draft Act on Solidarist Associations
  773. according to which there was a ban on, inter alia, "carrying out any type of
  774. activity aimed at preventing or hindering in any way the creation and
  775. functioning of trade union organisations and cooperatives" (section 8 (ch))
  776. and on employer representatives holding office in executive councils. Despite
  777. this, in the opinion of Professor van der Laat, former head of the Law Faculty
  778. at the University of Costa Rica: "in practice there are excellent relations
  779. bordering on control on the part of the employer with the solidarist
  780. associations and, consciously or unconsciously, this type of organisation acts
  781. parallel to and in competition with the trade union movement" (La prevención
  782. de las pràcticas antisindicales, Labour Debates, 1988 (1):53). In this way an
  783. attempt was made to separate the three forms of social organisations and,
  784. especially, to prevent solidarist associations from interfering in activities
  785. that were part of the unions' domain. Violation of this prescription gave rise
  786. to the dissolution of the association, or the removal of its legal
  787. representatives as the case may be. Nevertheless, the trade union leaders
  788. complained that this sanction had not been applied despite frequent and
  789. repeated violations of the above-mentioned ban, and yet there had been cases
  790. of dissolutions of major trade unions. Ministry of Labour officials stated
  791. that they had received no complaints of an association deviating from its
  792. objectives, but they also acknowledged that there was no concrete, simple and
  793. clear procedure for complaints to be presented and that this Ministry did not
  794. have sufficient staff to monitor the implementation of the Act on Solicarist
  795. Associations in this particular respect.
  796. 44. From a reading of the Constitution (section 60(2)), the Labour Code
  797. (section 275(e)) and the Act on Solidarist Associations (section 14), it
  798. appeared that the latter had greater possibilities than union organisations in
  799. electing their officials because- apart from the fact that they could include
  800. senior employees- it was sufficient that the candidates be adult workers,
  801. whereas trade union leaders had to be, in addition, of Costa Rican nationality
  802. or foreigners married to a Costa Rican woman and also had to have five years'
  803. continuous residence in the country. All of this limited election
  804. possibilities.
  805. 45. As for the Government's attitude towards solidarist associations or
  806. solidarism in general, the union representatives and their legal advisers told
  807. the mission that in the public sector adjustment measures- specifically
  808. dismissals and restrictions on collective bargaining- had weakened the trade
  809. union movement, while in departments such as Social Security solidarism was
  810. being promoted. As for the economic support received by the John XXIII Social
  811. School and mentioned in the complaint, the School's representatives stated
  812. that there was nothing to reproach in the Government making contributions to a
  813. church institution that was carrying out social work in favour of workers and
  814. not only in the framework of solidarism. Secondly, they wanted to clarify that
  815. in place of the millions of colones referred to in the allegations, the amount
  816. of government aid actually received had been 1,700,000 colones, given to the
  817. Ministry of Planning and Economic Policy. They also stated that the
  818. initiatives which had led to the creation of a solidarist bank and of the
  819. "solidarist stamp" to finance this movement, came from the Costa Rican
  820. Solidarist Union that were not shared with the John XXIII Social School.
  821. Lastly, the Government assured the mission that it had the best intention to
  822. have freedom of association and the constitutional right to unionise
  823. respected. The President and the First Vice-President of the Republic
  824. reaffirmed the decision to adopt measures like those explained to the
  825. Committee on Freedom of Association, aimed at establishing a clear separation
  826. between solidarist associations and unions so as to avoid any possibility of
  827. interference in each other.
  828. 46. As for the employers and their organisations, there was no doubt that, in
  829. general, there was great sympathy and support for solidarism which contrasted
  830. with their misgivings or reticence towards the trade union movement, due no
  831. doubt in part to past errors of certain trade union organisations and leaders.
  832. The mission was told this by senior authorities in the Government,
  833. magistrates, preofessors, union leaders and solidarist and employer leaders.
  834. Professor van der Laat wrote the following: "... when a workers joins this
  835. type of association, his employer approves and the worker is not subject to
  836. eventual reprisals as would be the case if he joined a union" (see the
  837. above-mentioned article).
  838. 47. The very creation of a solidarist association supposed the employer's
  839. consent, because the employer agreed to finance it through periodical
  840. payments. This expense was evidence of the employer's acceptance of the
  841. solidarist association and kept it linked to the association so as to ensure
  842. the good management of the money paid over. Moreover, it could be said that in
  843. many cases it was the employer who gave the initial encouragement for the
  844. formation of an association, in agreement with the John XXIII Social School,
  845. or the Solidarist Union, or following steps taken by one of these
  846. institutions. Participation in these promoting bodies, in the organisation of
  847. the association, as well as the elaboration of its basic documents and the
  848. handling of the corresponding files before the Ministry of Labour, all
  849. guaranteed that the registration of a new solidarist association would taken
  850. place rapidly and without complications. Officials from this Ministry
  851. confirmed that this differed from what could happen in the registration of a
  852. union organision.
  853. 48. In job offers published in the press it was current practice to highlight
  854. the existence of a solidarist association in the enterprise as being
  855. advantageous; this confirmed the mployer's encouraging attitude towards that
  856. type of association. In the testimony received, Government, union and one
  857. employer representative, as well as labour law professors, stated that the
  858. offer of employment could also, in practice, involve an indication from the
  859. employer that he expected the new worker to join the association and in no
  860. case to take part in union activities. In the rural or agro-industrial sector,
  861. the case of the Bandeco Company was cited: according to trade union leaders,
  862. the union had been eliminated and workers' employment depended on their
  863. joining a solidarist association.
  864. 49. Many witnesses gave the same information concerning cases where an
  865. employer did not only clearly support a solidarist association and want all
  866. his employees to join it, but also controlled that association's own
  867. functioning through directives given to staff having his confidence. The
  868. representative of FEDEPRICAP spoke of advantages, including good working
  869. conditions, that a solidarist association in a corn company had been able to
  870. obtain where the chief of personnel was on the association's executive. The
  871. workers and union representatives of several private enterprises stated that
  872. the candidates listed on the ticket proposed by senior employees, including
  873. the chief of personnel or of the accounting department, tended to win
  874. elections for the executive committee due to their competence, their knowledge
  875. of the company and the inconvenience for other workers in having to confront
  876. them in a contested election. Along the same lines, the leaders of the
  877. Solidarist Union who met the mission and who belonged to solidarist
  878. associations were mostly senior employees in individual companies; one of them
  879. indicated that he was responsible for human resources and another that he was
  880. director of the personnel department in a plastics company. An official from
  881. the Labour Inspection Department stated that personnel chiefs were in the
  882. habit of being members of the executive committees of solidarist associations.
  883. Anti-union discrimination
  884. 50. In the complaint, reference was made not only to more favourable treatment
  885. of solidarist associations over unions, but also to acts of anti-union
  886. discrimination and to the lack of adequate legal protection against such acts.
  887. The mission was able to obtain information on both these issues.
  888. 51. Workers' and union representatives with whom the mission met confirmed
  889. emphatically that anti-union persecution was rampant in the private sector.
  890. 52. The mission received a full copy of the documentation relating to the
  891. dispute between the AURIND SA company and its union which had been registered
  892. on 26 April 1989. The members of the executive committee had been dismissed
  893. the following day (27 April) for "spreading rumours" against the company.
  894. Between 24 April and 5 May 1989, 56 dismissals took place of leaders and those
  895. who had taken part in the founding meeting of the union, and there were many
  896. denials of having taken part made by several workers. Within the company
  897. remained a solidarist association which had been created on 2 May 1989. The
  898. Labour Inspector, in a detailed report dated 8 June 1989 and cosigned by the
  899. Minister of Labour and Social Security, reached the conclusion that there had
  900. in fact been anti-union persecution against the dismissed workers. A court
  901. decision dated 23 May 1990 and confirmed in a judgement of 27 June 1990
  902. ordered that they be paid compensation for unjustified dismissal.
  903. 53. A union representative gave the mission written information on the
  904. following complaints of anti-union discrimination: on 5 December 1989 against
  905. the Buen Paso SA company, for obstructing union activities and dismissing
  906. union leaders; on 17 September 1990 against the National Children's Hospital
  907. Society, for harassment of the union committee using the solidarist
  908. association, and subsequent dismissal of all the committee's members; on 5
  909. June 1989 against the president of the Chamber of Industries, for various
  910. reasons including dismissal for trade union reasons, union busting, rejection
  911. of collective agreements in the following companies: Calzado Ecco, Pegaso
  912. Internacional, Caballero Blanco SA, Creaciones Frances, Perryco SA, Industrias
  913. Katuir, Yorkin de Costa Rica, Melkis de Costa Rica, Industrias Romano,
  914. Interfashion Industrias, Cocoa Products of Costa Rica. El Gallito Industrial,
  915. Constructora Carrez, Coca Cola, Kokomerica SA, Pozuelo SA, Ladrillera La
  916. Sabana, Exportadora Almah SA, Sazapati SA, Leonisa SA, Nusuet SA, Textiles S &
  917. R, Durman Esquivel, Dos Pinos, Plywood Costarricense, Yanber de Costa Rica,
  918. Skyline SA, Ceinsa SA, Industrias Dada SA, Industrias Eiffel SA, Tica Tex SA,
  919. Sansung SA, Coceca SA, Plumrose SA, Realtex SA, Textiles Dragon SA, Textiles
  920. El Roble, Bali SA; On 5 March 1991 by virtue of an appeal for constitutional
  921. protection (amparo) before the Constitutional Chamber of the Supreme Court
  922. against La Bilbaina SA for obstructing union action and dismissals following a
  923. collective dispute of an economic and social nature.
  924. 54. According to the legal adviser of various unions, in agriculture
  925. anti-union discrimination had been encouraged by precarious employment
  926. evidenced by the systematic use of fixed-term contracts for short periods. It
  927. had also been supported by coercion such as the dismissal of the relatives of
  928. workers who were engaged in union activities, by ill-treatment, by poor
  929. working conditions and especially by the penalisation of certain workers. This
  930. merited particular importance given, for example, that there was massive abuse
  931. in the use of pesticides and that the houses of many workers were in a piteous
  932. state. He pointed out that solidarist shops which were meant to sell necessary
  933. items at low prices could be used to tempt the worker into buying costly
  934. articles on credit, thus diminishing his available salary and creating a
  935. dependency between the worker and his company through such shops. This
  936. dependence in turn served to strengthen the worker's link to the solidarist
  937. association and to distance him from the union.
  938. 55. Union representatives provided documents signed before a public notary on
  939. 8 January 1991 by citizens identifying themselves as farmers and who referred
  940. to their union experience vis-à-vis solidarism. The documents denounce
  941. coersion and threats for them to join a solidarist association or to renounce
  942. their union, dismissals for having been a union member or for having taken
  943. part in strikes, the existence of blacklists used at the time of recruitment
  944. and various acts of discrimination against trade unionists.
  945. 56. In the public sector where solidarism was developing more and more, the
  946. union representatives consulted found that structural adjustment policies
  947. currently being implemented were being used to include trade union leaders in
  948. massive dismissals and were leading to the division or the disappearance of
  949. union organisations in that public bodies were being reduced, split up or
  950. privatised. They cited the case of the dismissals following the abolition of
  951. the school cafeteria programme. Representatives of the Unitary Union of
  952. Agriculture and Plantation Workers gave the mission a copy of a document dated
  953. 20 February 1991 taken from a cantonal labour office in the Department of
  954. Potoci and Suacimo of the Ministry of Labour and Social Security in which the
  955. general secretary of that union complained of anti-union discrimination in the
  956. experimental diamond station (public sector) on the basis of the following
  957. facts: prejudicial transfer of the deputy secretary of the union; the
  958. administration's removal of a dining room which was under union
  959. responsibility; suspension of leave for union activities; unjustified
  960. suspension without salary of several workers who were members of the union;
  961. and workers leaving the union because of inducements offered by the foreman.
  962. They stated that this took place while the formation of a solidarist
  963. association was being encouraged. They also mentioned that in the Costa Rican
  964. Railways Institute violations of the collective agreement had taken place,
  965. including the dismissal of union leaders. Finally, various representatives of
  966. public sector workers feared that the proposed revision of the Civil Service
  967. Statute would remove the right to negotiate collective labour agreements.
  968. 57. Ministry of Labour officials having many years' experience in labour
  969. inspection stated that there had been few complaints of trade union
  970. persecution and that where there were no complaints, there was no inspection
  971. partly due to the scarcity of human resources. They mentioned, for example, a
  972. recent complaint against the Comandos de Vigilancia Civil SA company (noted in
  973. a labour inspector's report dated 17 December 1990) and confirmed by a higher
  974. decision on 5 April 1991; it was true that the company had appealed this
  975. decision. Nevertheless, they knew of a series of anti-union discrimination
  976. measures and of incidents of pressure favouring solidarism. Some of these
  977. measures were: making employment and promotion subject to membership of a
  978. solidarist association; dismissals- but with payments from the compensation
  979. fund- particularly in plantations and industrial parks of persons who tried to
  980. set up a union; forcing unionists to sign documents of withdrawal from the
  981. union; and broadcasting anti-union slogans.
  982. 58. According to repeated evidence given to the mission, Costa Rican
  983. legislation lacked provisions which could provide adequate protection against
  984. anti-union discrimination. Professor Edgar G. Alfaro summarised the legal
  985. situation in the following terms: (a) the law allowed free dismissal, without
  986. determining the grounds, with a possible payment from the compensation fund
  987. (section 80 of the labour code); indeed, on this same issue, a lawyer linked
  988. to the John XXIII Social School told the mission that anti-union persecution
  989. existed and would always exist while free dismissal was allowed; (b) there was
  990. no protection of workers' representatives; (c) according to mainstream
  991. jurisprudence, there was no right to reinstatement for arbitrary dismissal not
  992. even in the case of dismissal during a collective dispute; (d) there was no
  993. criterion for determining the most representative union and there was no
  994. recognition of the status to negotiate apart from the union being able to
  995. oblige the employer to negotiate if it had as members one third of the workers
  996. in the undertaking (in reality, in many companies membership of 100 per cent
  997. of the workers was required since the works union could not be formed with
  998. less than 20 workers and that 52 per cent of the industrial undertakings
  999. employed less than 20 workers and 70 per cent did not have 100); (e) there was
  1000. no possibility in practice of negotiating collective agreements by region or
  1001. by branch of economic activity; (f) the exercise of the right to strike was
  1002. seriously hampered by the requirement of fulfilling a complicated procedure of
  1003. court conciliation and required the support of 60 per cent of the workers. In
  1004. addition, several of the people interviewed stressed the extremely low amount
  1005. of the fines set out in the Labour Code for violation of its provisions,
  1006. including those related to freedom of association (between 300 and 1,000
  1007. colones).
  1008. 59. In 1989, the Minister of Labour agreed with the most representative union
  1009. organisations to introduce a decree covering trade union immunity (fuero
  1010. sindical), but the draft had not yet been adopted. Some sectors told the
  1011. mission that the question of trade union immunity could not be regulated by a
  1012. decree, but should be covered by a law; others stressed that in 1989 there had
  1013. been procedural errors, especially as regarded the lack of consultation with
  1014. the interested parties, particularly employers' organisations, but that the
  1015. question could be re-examined now on a better basis.
  1016. 60. Some employer representatives told the mission that they were in agreement
  1017. with recognition of a type of trade union immunity (although they had
  1018. misgivings regarding certain details), as long as the duties of trade union
  1019. leaders were also set out. Representatives of the Solidarist Union agreed with
  1020. trade union immunity if there was reciprocity for members of executive
  1021. councils of solidarist associations; they thought that this would contribute
  1022. towards protecting freedom of expression.
  1023. 61. In the opinion of various sectors, the Act on Constitutional Jurisdiction
  1024. and the new Fourth Chamber of the Supreme Court, having jurisdiction for the
  1025. application of constitutional standards and international treaties and
  1026. conventions, which prevailed over national legislation, constitute a new and
  1027. extremely important element for giving protection to workers against
  1028. anti-union discrimination. For example, the Act provided for the exercise of
  1029. constitutional protection even of individuals. The Fourth Chamber had started
  1030. giving decisions on the application of ratified international labour
  1031. conventions and could, according to its President, be seised of individual
  1032. appeals against dismissals of an anti-union nature. Nevertheless, in his
  1033. opinion, detailed legislation was needed to give better general protection.
  1034. 62. The First Vice-President of the Republic recognised that there was a
  1035. legislative gap regarding protection against anti-union discrimination and
  1036. that it was necessary to fill it and that this was possible. When he was
  1037. Minister of Labour he had requested ILO cooperation to amend the Labour Code
  1038. in this respect, but the amendment Bill had not been adopted for reasons
  1039. linked to the Costa Rican parliamentary system.
  1040. 63. The President of the Republic told the mission that he was convinced of
  1041. the need to create trade union immunity by law and that he was ready to
  1042. prepare the corresponding legislative amendments; he thought he could get
  1043. parliamentary support for this. Along the same lines, he stated that the
  1044. Assembly was already considering a Bill to repeal sections 333 and 334 of the
  1045. Criminal Code which laid down prison sentences for incitement of civil
  1046. servants and public employees to abandon their posts (which thus included the
  1047. suppression of illegal strikes) and imposed fines on those who abandoned their
  1048. posts.
  1049. 64. Regarding the possibility of introducing legislative amendments, the
  1050. President of the Legislative Assembly who was to take office from 1 May 1991
  1051. supplied valuable information to the mission concerning the functioning of the
  1052. Assembly. He confirmed that, at the moment, there was no Bill for the
  1053. amendment of the Labour Code on the parliamentary agenda despite the fact that
  1054. there had been some in the past, for the simple reason that at the end of each
  1055. year outstanding Bills were withdrawn from the agenda and, to be reinserted,
  1056. the procedures had to be completely recommenced. In addition, in each
  1057. constitutional period, there was a complete renewal of the Assembly's members
  1058. which led to new questions being asked which had already been dealt with by
  1059. the members of the preceding period. Lastly, given the shortness of the
  1060. constitutional period (four years) and the annual turnover in the agenda, he
  1061. believed that the amendments to the Labour Code should be partial and very
  1062. precise if they were to be viable.
  1063. V. Other information of interest
  1064. 65. Government representatives supplied the mission with various legislative
  1065. drafts prepared by the Ministry of Labour and Social Security, including: (1)
  1066. the partial revision of the Labour Code with a view to establishing a unified
  1067. system of fines expressed in numbers of wage earners and so as to raise to 15
  1068. months the ceiling of the compensation fund; (2) revision of the Organic Act
  1069. concerning the Ministry of Labour and Social Security so as to make the
  1070. conciliation procedure more efficient; (3) the repeal of sections 333 and 334
  1071. of the Penal Code which concerned strikes by civil servants and public
  1072. employees. The mission was also told of the general thrust of a draft Bill on
  1073. workers' participation in the profits of the undertaking.
  1074. VI. Conclusions
  1075. 66. In summary, and in accordance with the information obtained by the
  1076. mission, the following conclusions can be made:
  1077. (1)As regards the relations between solidarism and trade unionism, the
  1078. solidarist associations whose patrimony was made up of contributions from
  1079. workers and from employers in the form of compensation paid into the
  1080. termination fund, carried out by law a mutual benefit function in favour of
  1081. workers (mutualism). The great majority of persons interviewed, who appeared
  1082. to reflect the general feeling of the population, considered that this aspect
  1083. of solidarism was worth preserving. Nevertheless, in practice, solidarist
  1084. associations could carry out - and in fact did carry out - in many cases quite
  1085. varied activities normally reserved to trade union associations. The mission
  1086. was given much information from the various people it met with, and was given
  1087. voluminous documentation confirming the exercise of labour-related activities
  1088. by solidarist associations and organisations, in particular through permanent
  1089. committees and labour relations councils. These labour activities resulted in
  1090. a signing of a series of direct settlements, particularly in enterprises whose
  1091. solidarist associations fell under the John XXIII Social School. These direct
  1092. settlements served as collective agreements or substituted for them, thus
  1093. contributing in the private sector to the decrease in the number of collective
  1094. agreements and to the weakening - or even disappearance - of a large number of
  1095. trade union organisations which were deprived by this means of their main
  1096. instrument of trade union action. These direct settlements gave less legal
  1097. protection than collective agreements and were concluded by an employer and a
  1098. group of unionised workers even where a union existed in the undertaking. At
  1099. present, the total number of collective agreements in the private sector
  1100. amounted to 15 collective agreements.
  1101. (2)While it was true that the disappearance of trade union organisations and
  1102. the diminishing growth of the trade union movement in the last decade resulted
  1103. from the situation described above concerning the inadequate legal protection
  1104. against acts of anti-union discrimination, it was also true that the crisis in
  1105. the trade union movement was due in a large part to internal reasons as the
  1106. mission heard repeatedly from various union representatives and as had been
  1107. noted by the ICFTU in its allegations; other sectors referred to past errors
  1108. of some trade union organisations and their leaders.
  1109. (3)The interference by solidarist associations in trade union activities was
  1110. shown to the mission by representatives of the Government, of the academic
  1111. world, or by union representatives and employer representatives and at least
  1112. by a portion of the solidarist representatives interviewed. In particular, the
  1113. President and the First Vice-President of the Republic agreed that, in
  1114. practice, solidarism was carrying out trade union functions and that it was
  1115. necessary to separate by law their roles. Government authorities gave
  1116. assurances that there was a willingness shortly to adopt appropriate
  1117. legislative or other types of measures to guarantee the real separation of
  1118. functions between unions and solidarist associations.
  1119. (4)As regards the treatment of solidarist associations and union organisations
  1120. there was no doubt that the law granted a series of advantages to solidarist
  1121. associations over unions in certain areas (the minimum number of workers
  1122. required, the possibility of engaging in profit-making activities, access to
  1123. compensation in cases of justified dismissal, the possibility of managing the
  1124. termination funds, etc.). These advantages made their creation and functioning
  1125. easier.
  1126. (5)As for the alleged anti-union discrimination and the lack of legal
  1127. protection against it, the law allowed dismissal without justification if the
  1128. corresponding compensation was paid (including cases involving trade union
  1129. leaders), and fines for infringement of the provisions of the Labour Code
  1130. (including those related to freedom of association) were clearly out of date
  1131. because they amounted to between 300 and 1,000 colones (less than US$9). The
  1132. mission received evidence from trade unions and from labour authorities that
  1133. dismissals and other prejudicial acts based on trade union reasons had taken
  1134. place and were continuing to take place (both at the time a union was formed
  1135. and when union activities were being carried out, including pressure on
  1136. workers to join a solidarist association, to leave a union, or to desist from
  1137. union activities). There was insufficient protection in the legislation
  1138. against these situations which were particularly marked in the plantations
  1139. sector. The creation of the Fourth Chamber (Constitutional) of the Supreme
  1140. Court and the Act on Constitutional Jurisdiction were elements of progress for
  1141. the exercise of trade union rights in so far as they allowed the full
  1142. utilisation of appeals for constitutional protection (amparo) even against
  1143. individuals. However, the mission noted wide consensus on the need to
  1144. introduce detailed and appropriate legislation regarding trade union immunity
  1145. (fuero sindical) which would grant effective protection. The Government, and
  1146. in particular the President of the Republic, demonstrated the greatest
  1147. willingness towards adopting effective legislation along these lines. The
  1148. employers were not opposed to the principle of protection of trade union
  1149. leaders (although they had misgivings regarding certain modalities) as long as
  1150. the obligations concerning their leadership were laid out. On the other hand,
  1151. it had to be noted that there was at present a Bill elaborated by the Ministry
  1152. of Labour, which considerably strengthened the fines imposed for infringements
  1153. of the Labour Code and which set out a new system, as well as a Bill which was
  1154. being considered by the Legislative Assembly to repeal sections 333 and 334 of
  1155. the Penal Code which set out criminal sanctions for illegal strikes by civil
  1156. servants and public employees.
  1157. 67. The main issues raised in the complaint and in the interim conclusions and
  1158. recommendations of the Committee on Freedom of Association were thoroughly
  1159. examined with the Minister of Labour and Social Security and some of his
  1160. direct advisers in an open and very constructive attitude, with a view to
  1161. clarifying certain aspects and to exploring various means of action. It
  1162. appeared from these conversations that the best thing for efficient and
  1163. realistic action would be to envisage a series of measures of various types
  1164. which could be adopted and applied progressively in the hope of producing
  1165. changes to the questions outlined in the above paragraphs.
  1166. 68. The Committee on Freedom of Association took note of the Government's
  1167. decision to introduce legislative initiatives with a view to banning direct or
  1168. indirect interference by solidarist associations in collective bargaining and
  1169. to introducing statutary protection against anti-union discrimination. The
  1170. Minister of Labour and Social Security interpreted the words of his own
  1171. President and showed his firm intention to act swiftly and efficiently towards
  1172. that aim. The most adequate measure would be to explore the possibilities of
  1173. ratifying, broadening and clarifying by law the ministerial position, to
  1174. refuse direct settlements when a collective agreement was being negotiated,
  1175. and to refuse the presence of a permanent committee when a union already
  1176. existed in the undertaking. According to the Ministry officials, it might also
  1177. be possible to govern by law the formation of permanent committees. In
  1178. addition, it was clear from conversations with the President of the
  1179. Legislative Assembly (in office as of 1 May 1991) that there was a need to act
  1180. with some rapidity by means of brief and viable drafts, given the particular
  1181. characteristics of the Legislature. Given the good intentions expressed by the
  1182. Government, it was to be hoped that in the institutions or jobs under direct
  1183. or indirect government control, the Government would examine the possibility
  1184. of implementing immediately in practice decisions to avoid interference of
  1185. solidarist associations in activities which were proper to unions and to
  1186. guarantee effective protection against acts of anti-union discrimination.
  1187. 69. There was wide agreement (Government, trade union organisations and
  1188. employer organisations) on the need to abolish the discrimination which
  1189. presently existed concerning the termination funds between workers who were
  1190. members of a solidarist association and other workers; this could be done
  1191. through legislation which extended the advantages contained in the Act on
  1192. Solidarist Associations and which would declare access to such funds as a
  1193. right of all workers, no matter how their employment relationship had been
  1194. terminated.
  1195. 70. The Ministry of Labour and Social Security expressed its greatest
  1196. willingness to pursue a policy of not registering direct settlements when a
  1197. collective agreement was being negotiated and of adopting simple and urgent
  1198. administrative procedures - within its jurisdictional competence - to improve
  1199. labour inspection activities regarding freedom of association (for example, to
  1200. interview trade union leaders during inspection visits) to simplify the
  1201. administrative procedures for registering a union and for investigating
  1202. complaints of anti-union discrimination, and to inform workers more thoroughly
  1203. of their rights regarding this subject in particular.
  1204. 71. Lastly, bearing in mind the general principles of the ILO, the mission
  1205. considered it was opportune to stress the importance of taking due account in
  1206. the legislative or other types of initiatives of the opinions of the trade
  1207. union and employer organisations.
  1208. 72. In closing this report, I wish to express my great appreciation to the
  1209. Director-General of the ILO for the confidence he placed in me in conferring
  1210. this delicate task on me. In addition, I wish to express my gratitude to Mr.
  1211. Bernard Gernigon and to Mr. Alberto Odero of the Freedom of Association Branch
  1212. who accompanied me on this mission for their co-operation and valuable
  1213. support, as well as for the most efficient co-operation received from the
  1214. senior personnel, the library staff and the administrative staff of the ILO
  1215. Office in San José.
  1216. Caracas, 6 May 1991. Enrique Marín.
  1217. LIST OF PERSONS WITH WHOM MEETINGS WERE HELD
  1218. THE EXECUTIVE
  1219. - His Excellency, the President of the Republic, Rafael Angel Calderón
  1220. Fournier.
  1221. - The First Vice-President of the Republic, Germán Serrano Pinto.
  1222. - The Minister of Labour and Social Security, Carlos Monge Rodríguez.
  1223. - The Vice-Minister of Labour and Social Security, Víctor Morales.
  1224. - The National Director and Inspector General of Labour, Rodrigo Valverde.
  1225. - The Director of Labour Affairs, Eugenio Solano Calderón.
  1226. - The Chief of the Department of Social Organisations, Mrs. Zayda Solano.
  1227. - The Chief of the Department of Labour Relations, Alvaro Sojo Mendieta.
  1228. - Mr. Bernardo Benavides, legal adviser.
  1229. - Mr. Danilo Ugalde, adviser to the Vice-Minister.
  1230. - Messrs. Miguel Pizarro, Enrique Rodríguez, Fernando Chacón and Alba Rosa
  1231. Ruiz, labour inspectors.
  1232. THE LEGISLATURE
  1233. - Dr. Miguel Angel Rodríguez Echeverría, Deputy of the Legislative Assembly
  1234. (President of the Assembly as from 1 May 1991).
  1235. THE JUDICIARY
  1236. - Dr. Alejandro Rodríguez Vega, President of the Fourth Chamber
  1237. (Constitutional) of the Supreme Court.
  1238. - Drs. Orlando Aguirre, José Luis Arce, Alvaro Fernández, Jorge Rojas and
  1239. Zarela Villanueva, Magistrates of the Second Chamber (Labour) of the Supreme
  1240. Court.
  1241. EMPLOYERS' ORGANISATIONS
  1242. Costa Rican Union of Chambers of Commerce and Private Enterprise Associations
  1243. (UCCAEP)
  1244. - Jorge Amador Sánchez (Chamber of Industries).
  1245. - José Vicente Badilla (Chamber of Industries).
  1246. - Arnold Hoepcker (Chamber of Commerce).
  1247. - Edmundo Gerli (Co-ordinator of Labour Matters).
  1248. - Carlo Frittela (Chamber of Commerce).
  1249. - José Arturo Montero (Executive Director of UCCAEP).
  1250. Chamber of Commerce
  1251. - Emilio Bruce Jiménez, President.
  1252. Federation of Private Enterprises of Central America and Panama (FEDEPRICAP)
  1253. - Carlos Ml. Echeverría, Executive Director (speaking in a personal capacity).
  1254. TRADE UNION ORGANISATIONS
  1255. Inter-American Regional Organisation of Labour (ORIT)
  1256. - Mr. Luis Anderson, General Secretary.
  1257. - Mr. Gerardo Castillo, Education Officer.
  1258. - Mr. David Mena, Co-ordinator of ORIT for Central America.
  1259. Permanent Council of Workers
  1260. - Mr. Gilbert Brown Young, General Secretary of the National Confederation of
  1261. Workers (CNT).
  1262. - Mr. José Joaquín Meléndez, General Secretary of the Authentic Confederation
  1263. of Democratic Workers (CATD).
  1264. - Mr. Olger Chávez, General Secretary of the Costa Rican Confederation of
  1265. Democratic Workers (CCTD).
  1266. - Mr. Adalberto Fonseca, General Secretary of the United Confederation of
  1267. Workers (CUT).
  1268. - Mr. Alvaro Montero Vega, President of the Workers' Confederation of Costa
  1269. Rica (CTCR).
  1270. - Mr. Daniel Quesada Mora, Director of the CNDC.
  1271. - Mr. Jorge Soto Fallas, Deputy General Secretary of the Confederation of
  1272. Costa Rican Workers (CTC).
  1273. - Mr. Mario Rojas Vilchez, Organisation Secretary of CATD.
  1274. - Mr. Luis Pablo Zuñiga Morales, CTCR leader.
  1275. - Mr Osman Guadamuz, Finance Secretary of CNT.
  1276. - Mr. Luis Fernando Alfaro, CATD lawyer.
  1277. - Mr. Jorge Emilio Regidor, CTC and CATD lawyer.
  1278. - Mr. Mario A. Blanco, lawyer of the Unitary Workers' Confederation (CUT) and
  1279. of the National Association of Public Employees (ANEP).
  1280. - Mr. Manuel Hernández, CCTD lawyer.
  1281. Authentic Confederation of Democratic Workers (CATD)
  1282. - Mr. José Joaquín Meléndez, General Secretary.
  1283. - Mr. Siliam Salas, Deputy General Secretary.
  1284. - Mr. Mario Rojas Vilchez, Organisation Secretary.
  1285. - Mr. Rodrigo Aguilar, Finance Secretary.
  1286. - Mrs. María de los Angeles Araya, Minutes Secretary.
  1287. - Mrs. Lucrecia Ruiz, Treasurer.
  1288. - Mr. Jorge Regidor, adviser.
  1289. Costa Rican Confederation of Democratic Workers (CCTD)
  1290. - Mr. Olger Chaves, General Secretary.
  1291. - Mr. Miguel Calderón, Deputy General Secretary.
  1292. - Mr. Alvaro Enrique Hernández, Education Officer.
  1293. National Confederation of Workers (CNT)
  1294. - Mr. Gilbert Brown Young, General Secretary.
  1295. - Mr. Eduardo Irías, President.
  1296. - Mr. Osman Guadamuz, Finance Secretary.
  1297. - Mr. Félix Solonof, Organisation Secretary.
  1298. - Mrs. Ana Isabel Montero, leader.
  1299. - Mr. Ernesto Montero, Education Secretary of STICA.
  1300. - Mr. Ramiro Hernández, Spokesman for STICA.
  1301. United Confederation of Workers (CUT)
  1302. - Mr. Adalberto Fonseca, General Secretary.
  1303. - Mr. Eliecer Sánchez, trade union leader.
  1304. - Mr. Miguel Angel Calderón, General Secretary of FENATI.
  1305. Confederation of Costa Rican Workers (CTC)
  1306. - Mr. José Joaquín Zuñiga, Deputy General Secretary.
  1307. - Mr. Jorge Soto Fallas, Deputy General Secretary.
  1308. - Mrs. Vera Violeta Loría, Organisation Secretary.
  1309. Workers' Confederation of Costa Rica (CTCR)
  1310. - Mr. Oscar Monge, Organisation Secretary.
  1311. - Mr. Gerardo Madrigal, Finance Secretary.
  1312. - Mr. Luis Pablo Zuñiga, legal adviser.
  1313. - Mr. Julio Arias Chacón, Organisation Secretary of SITEP.
  1314. National Association of Public Employees (ANEP)
  1315. - Mr. Johnny García, General Secretary.
  1316. - Mr. Albino Vargas, Deputy Secretary General.
  1317. Union of Agricultural Workers of Limón (UTRAL)
  1318. - Mr. Osman Guadamuz, Finance Secretary.
  1319. - Mr. V. Díaz Mendoza, General Financial Adviser.
  1320. National Federation of Workers in Agricultural Plantations (FENTRAP)
  1321. - Mr. Ramón Fausto Barrantes, General Secretary.
  1322. - Mr. Luis Pablo Zuñiga, member of the Banana Commission.
  1323. Industrial Union of Workers in Private Enterprise (SITEP)
  1324. - Mr. Luis Angel Serrano, General Secretary.
  1325. - Mr. Julio Arias Chacón, Organisation Secretary.
  1326. - Mrs. Zayra Alvares Soto, member.
  1327. Union of Workers in Agricultural Plantations (SITRAP)
  1328. - Mr. Gilbert Bermúdez, member of the Executive Council.
  1329. Union of Employees of the Costa Rican Airlines (LACSA)
  1330. - Mr. Bayardo Ramírez, Vice-Secretary General.
  1331. - Mr. Sergio Alvarez, Finance Secretary.
  1332. - Mr. Marco Tulio Alvarado, union adviser.
  1333. PROFESSORS OF LABOUR LAW
  1334. - Dr. Bernardo van der Laat.
  1335. - Dr. Edgar G. Alfaro.
  1336. - Dr. Rosa Esmeralda Blanco.
  1337. - Dr. Mario A. Blanco.
  1338. - Dr. Alberto Umaña.
  1339. SOLIDARIST ORGANISATIONS
  1340. Costa Rican Solidarist Union
  1341. - Mr. Rodrigo Jiménez Vega, Executive Director.
  1342. - Mr. Carlos A. Naranjo, Deputy Director.
  1343. - Mr. Mario Hernández, Labour Vice-President.
  1344. - Mrs. Gabriela Herrán, Secretary.
  1345. - Mr. Walter Alpízar, Labour Spokesman.
  1346. - Mr. Guillermo Echeverría, Financial Adviser.
  1347. - Mr. Hugo F. Arroyo, Labour Financial Adviser.
  1348. - Mr. Rosendo E. Azofeifa, Labour Representative.
  1349. - Mr. Germán Espinoza, adviser.
  1350. John XXIII Social School
  1351. - Father Claudio Solano, Director.
  1352. - Mr. Julio Rodríguez B., adviser.
  1353. - Mr. Roberto Quirós, adviser.
  1354. - Mr. Gerardo Jiménez, responsible for qualifications.
  1355. - Mr. Oscar Bejarano, legal adviser.
  1356. - Mr. Alexis Gómez, legal adviser.
  1357. Solidarist Association of LACSA Employees
  1358. - Mr. Rafael A. Azofeifa, Manager of the Association.
  1359. - Mr. Edwin Céspedes, Treasurer.
  1360. OTHER PERSONS MET BY THE MISSION
  1361. - Mr. Eric Thompson, former Minister of Labour and Social Security.
  1362. - Mr. Gustavo Blanco, Director of the Association "Servicios de Promoción
  1363. Social" (ASEPROLA).
  1364. - Mr. Mariano Sáenz, representative of ASEPROLA.
  1365. - Mr. Comberty Rodríguez, representative of ASEPROLA.
  1366. - Mr. Víctor Vega Isaula, representative of ASEPROLA.
  1367. - Mr. Antonio Montero, representative of ASEPROLA.
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