Rapport intérimaire - Rapport No. 89, 1966

Cas no 444 (Costa Rica) - Date de la plainte: 27-MAI -65 - Clos

1. 90. The complaint is contained in a communication dated 27 May 1965 from the General Secretary of the Costa Rica Banana Company Workers' Union (SITRACOBA). The complaining organisation supplied additional information by a second communication dated 10 July 1965. Both these communications were transmitted to the Government, which replied by two communications dated 24 September and 25 October 1965.
2. 91. Costa Rica has ratified both 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. A. The complainants' allegations

• Allegations relating to Intervention by the Authorities and by Representatives of the Employers in Union Meetings
  92. 92 In their communication of 27 May 1965 the complainants assert that on 19 March of that year a conversation which the SITRACOBA leaders Salustiano Mandez Picado and Eclimaco Sandi Solano were having with a group of workers from Estate 60, District of Coto, Canton of Osa, Province of Puntarenas, was broken up by members of the Customs Police. According to the complainants the representatives of the authorities arrived on the scene and, after drinking been in the company of Mr. Enrique Gil, an official of the Costa Rica Banana Company, made their way, accompanied by Mr. Gil and another official of the same company, Mr. Arturo Portela, to the place where the workers mentioned were talking and proceeded to make a record of the documents carried by Messrs. Salustiano Mandez and Arturo Parez Ramirez. The representatives of the authorities then asked the aforementioned company officials what they should do with the trade union leaders there present, at which the latter protested that they would not tolerate the giving of instructions to the authorities by company officials. The members of the Customs Police then ordered the workers to leave. Later the SITRACOBA leaders called on the Chief of the Customs Police for the District of Corredores at his office to request an explanation concerning the attitude of his subordinates; he answered that the instructions issued by the President of the Republic banning trade union meetings on the Banana Company's estates were still in force. In their communication of 10 July 1965 the complainants allege that, at the workers' request, the Central Committee of SITRACOBA called union meetings for 7 and 8 July 1965 on Estates Nos. 60, 61, 62 and 63, to enable the workers to state their problems and explain to them the aims and purposes of the union. These meetings were broken up by the Customs Police, who arrived on the scene accompanied by Messrs. Miguel Barrantes Castro and Arturo Portela, officials of the Company. The reason given by the authorities was the same as that instanced above, namely the President's order that no trade union meeting could be held without the Company's permission.
  93. 93 In its communication dated 24 September 1965 the Government transcribes a report received from the Inspector-General of Finance concerning the facts alleged in the complainants' first communication. This report states that the meeting held on Estate No. 60 on 19 March 1965 was indeed broken up by the authorities of the District of Corredores, acting on instructions then in force, but that disciplinary measures have been taken to punish the subordinate officials who behaved improperly in the performance of their duties. One of the members of the detachment has been transferred and the others have been severely reprimanded.
  94. 94 With regard to the facts alleged in the complainants' second communication the Government states that according to the report received from the Inspector-General of Finance the meetings called for 7 and 8 July were likewise broken up because they took place inside the property of the Banana Company, which has forbidden such activities for several years, and that the authorities acted at the express request of the representatives of the Company. The Government declares that, even though it disapproves of the Company's ban on trade union meetings on its property, it cannot directly intervene in order to impose its will against the will of the owners. The Government adds that if it were to do this it would be breaking the law, which, among other interests, protects the right of property ownership. The Government asserts in consequence that the Banana Company " is solely responsible for the unjustified limitation of trade union rights of which it has been accused ".
  95. 95 With regard to these allegations the Committee recalls that when examining earlier cases relating to Costa Rica (Nos. 239 and 379) it reached certain conclusions with regard to similar allegations made by a number of Costa Rican workers' organisations. When dealing with Case No. 379 in its 81st Report the Committee noted that the situation seemed to be that as far as the plantations of the Costa Rica Banana Company were concerned trade union meetings of all kinds, whether public or held in private dwellings, were prohibited unless the authorisation of the Company to hold them had been obtained. In that report the Committee expressed the view that it would be extremely useful for the high judicial authorities of the country to have the opportunity to state their views on the scope of the right of assembly granted by the Constitution of Costa Rica in situations such as those which had arisen in that particular case. The Committee recalls, in particular, that as the outcome of its examination of Case No. 239, the Governing Body drew the attention of the Government a to the importance which it attached to the right of plantation workers to hold trade union meetings and suggested that it might be appropriate to adopt clears provisions as to the meaning to be attached to the terms " public meeting " and " private meeting ", and also drew the Government's attention, having regard to the particular situation of plantation workers, to the importance which it attached to the principle enunciated by the Committee on Work on Plantations of the I.L.O at its First Session (Bandung, December 1950) that employers of plantation workers should provide their unions with facilities for the conduct of their normal activities, including freedom of entry.
  96. 96 The Committee observes that, judging by the evidence furnished in the present case, the situation does not seem to have changed.
  97. 97 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government, as it has already done in a number of earlier cases relating to Costa Rica, to the importance which it attaches to the right of plantation workers to hold trade union meetings on the estates; to express its concern that the recommendations previously made to the Government in connection with similar cases do not appear to have led to the adoption of specific measures to give effect to the right in question, and to request the Government to be good enough to keep it informed as to the provisions it adopts or plans to adopt to this effect.
• Allegations relating to the Dismissal of Trade Union Leaders and Members and to Interference by the Employers in the Internal Affairs of the Union
  98. 98 In their communication of 10 July 1965 the complainants further allege that in February 1965 SITRACOBA asked for unpaid leave to be granted to Messrs. Luis Pérez Madrigal, Victor Barrantes Gamboa and Juan Rafael Montes Cárdenas to enable them to attend a workers' education instructors' course in Puerto Rico from 1 to 8 March 1965. According to the complainants the Company refused this application, whereupon the union decided to send the members in question on the course, to attend which they had been awarded a scholarship, and continued to press the Company to give them leave, but it still refused and dismissed the three workers in question without any misconduct on their part. SITRACOBA adds that the Company has continued to dismiss members of the union. On 9 July 1965 the Company dismissed Mr. Orlando Quesada González, Treasurer of the Central Committee of SITRACOBA, with the intention of disrupting that body; pressure was brought to bear on Mr. Belforth Quesada Rojas to make him give up his post as Committee and Correspondence Secretary, and 30 union representatives and 300 members were dismissed in an attempt to destroy the union; the latter included 20 trade unionists who took part in the first seminar for union officials to be held in the banana-growing district by the Central American Institute of Trade Union Studies.
  99. 99 The Government answers these allegations in its communication of 25 October 1965, stating that matters of leave in general and scholarships in particular basically depend on the stipulations or practices followed under the contract of employment. Hence if the employers did not consent to grant leave for this purpose, the Government would not be able to intervene legally and require such permission. The Government adds that the employer-employee relationship is a private one and therefore, so long as the minimum guarantees stipulated in the Labour Code and supplementary Acts are respected, the Government must abstain and does abstain from any intervention. The Government goes on to state that the labour legislation of Costa Rica has no provision preventing the dismissal of workers who are members of trade unions, not even in cases where they may be leaders of the trade union in question, but a Bill is now under study concerning this matter. Finally, the Government declares that, so long as the undertaking pays the compensation for dismissal prescribed by law, it may dismiss any worker, whether or not be is a member of a trade union, without the Ministry of Labour and Social Welfare being able to prevent it from doing so. Section 82 of the Labour Code stipulates that an unlawfully dismissed worker is entitled, in addition to the wages due in lieu of notice and to severance pay, to damages which have been fixed at one month's pay. The Government affirms that this provision restricts the practice of deliberate or under-cover dismissals of trade union leaders.
  100. 100 Paragraph 1 of Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Costa Rica, lays down that " Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment ", while paragraph 2 states that " Such protection shall apply more particularly in respect of acts calculated to- (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership; (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours ".
  101. 101 With respect to the alleged dismissal of Messrs. Luis Pérez Madrigal, Victor Barrantes Gamboa and Juan Rafael Montes Cárdenas, who, on the complainants' own admission, had absented themselves from their work without their employers' permission to attend a workers' education course, the Committee, with due regard to the provisions of paragraph 2 (b) of Article 1 of Convention No. 98, quoted above, and, while recognising in general the desirability of facilities being accorded to workers to attend such courses, considers that their dismissal in such circumstances does not appear in itself to constitute an infringement of freedom of association and therefore recommends the Governing Body to decide that this aspect of the case does not call for further examination.
  102. 102 As regards the allegations respecting the dismissal by the undertaking of Mr. Orlando Quesada González, Treasurer of the Central Committee of SITRACOBA, 30 union representatives and 300 members-measures which are alleged by the complainants to be acts of anti-union discrimination-the Committee observes that in its reply the Government neither confirms nor denies that such dismissals took place. Nevertheless, the Committee infers from the Government's observations that under present legislation no provision is made for the protection of workers against dismissal by reason of union membership or because of participation in union activities, apart from the compensation generally payable under section 82 of the Labour Code in cases of unlawful dismissal, although a Bill concerning this matter is now under study.
  103. 103 For the reasons indicated in paragraph 102 above, the Committee recommends the Governing Body to draw the Government's attention to the importance which should be attached to the provisions of Article 1 of Convention No. 98, ratified by Costa Rica; to take note of the Government's statement to the effect that a Bill concerning this matter is now under study, and to express the hope that appropriate measures will be brought into force as soon as possible to protect workers against any act of anti-union discrimination in respect of their employment; and to bring these conclusions to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
  104. 104 With respect to the complainants' allegation that pressure was brought to bear on Mr. Belforth Quesada Rojas to make him give up his post as Committee and Correspondence Secretary of the union, the Committee observes that the Government makes no allusion to this allegation in its reply. In these circumstances the Committee recommends the Governing Body to request the Government to be good enough to furnish its observations on this particular point as soon as possible.

The Committee's recommendations

1. 105. With respect to the case as a whole the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to intervention by the authorities and by representatives of the employers in union meetings, to draw the attention of the Government, as it has already done in a number of earlier cases relating to Costa Rica, to the importance which it attaches to the right of plantation workers to hold trade union meetings on the estates; to express its concern that the recommendations previously made do not appear to have led to the adoption of specific measures to ensure that all plantation workers can exercise the right in question, and to request the Government to be good enough to keep it informed as to the provisions it adopts or plans to adopt to this effect;
   • (b) with regard to the allegation relating to the dismissal of Messrs. Luis Pérez Madrigal, Victor Barrantes Gamboa and Juan Rafael Montes Cárdenas, to decide, for the reasons indicated in paragraph 101 above, that this aspect of the case does not call for further examination;
   • (c) with regard to the allegations relating to the dismissal of trade union leaders and members, to draw the Government's attention to the importance which should be attached to the provisions of Article l of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has been ratified by Costa Rica; to take note of the Government's statement to the effect that a Bill concerning this matter is now under study, and to express the hope that appropriate measures will be brought into force as soon as possible to protect workers against any act of anti-union discrimination in respect of their employment; and to bring these conclusions to the attention of the Committee of Experts on the Application of Conventions and Recommendations;
   • (d) with regard to the allegation that pressure was brought to bear on Mr. Belforth Quesada Rojas to make him give up his post with the union, to request the Government to be good enough to furnish its observations on this particular point as soon as possible;
   • (e) to take note of the present interim report, on the understanding that the Committee will report further to the Governing Body when it has received the observations to be requested from the Government under subparagraph (d) above.