Rapport intérimaire - Rapport No. 320, Mars 2000

Cas no 1984 (Costa Rica) - Date de la plainte: 21-SEPT.-98 - Clos

Allegations: Acts of anti-union discrimination and intimidation on plantations

1. 531. The Committee examined this case at its meeting in June 1999 and presented an interim report (see 316th Report, paras. 391 to 447, approved by the Governing Body at its 275th Session in June 1999).
2. 532. Subsequently, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) sent additional information and new allegations in communications dated 21 May and 17 November 1999. The Government sent new observations in communications dated 17 August and 7 and 13 September 1999.
3. 533. 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. Previous examination of the case

1. 534. In its examination of the case in June 1999, the Committee made the following recommendations on the allegations which remained pending (see 316th Report, para. 447):
2. Allegations relating to the enterprise Bananera Isla Grande S.A.
3. Observing that in its investigation concerning the allegations relating to the enterprise Bananera Isla Grande S.A., the administrative authority found there to be harassment of workers to resign their membership of the trade union and considerable infringements of labour legislation, and that on 5 August 1998 the judicial authority ordered the reinstatement in their duties of the workers who had been dismissed up until then (five in all), the Committee must deplore these facts and asks the Government to send it the text of the final decision handed down by the judicial authority and to ensure compliance with the judicial decision that has already been handed down ordering the reinstatement of the five dismissed workers.
4. The Committee requests the Government to forward its observations concerning the other allegations relating to the enterprise Bananera Isla Grande S.A.: dismissal on the grounds of "unjustified absence" of 90 workers affiliated to the trade union who had signed the list of claims, following an alleged operation targeting illegal immigrants carried out at the border between 17 and 19 August 1998 by the Civil Guard and immigration officials in the presence of enterprise representatives, using lists of trade union members; pressure placed on workers to join a solidarity association; proposals made to workers to sign a "direct arrangement" with the enterprise outside the trade union; and pressure placed on trade union members to sign blank pieces of paper.
5. Allegations relating to the enterprise PAIS S.A.
6. The Committee requests the Government to forward to it the text of the decision rendered concerning the complaints submitted by the administrative authorities of harassment and threats addressed at the workers of PAIS S.A. for them to resign their membership of the trade union and of the wrongful retention of union dues. The Committee requests the Government to inform it of the administrative action taken in respect of the allegation that in the enterprise there are security doors and that security guards act aggressively to stop trade union leaders entering.
7. Allegations relating to the Chiriquí Land Company
8. The Committee requests the Government to send the text of the decision handed down concerning the complaints submitted by the administrative authorities of the harassment of workers to resign their membership of the trade union and of the preferential treatment of members who join the solidarity association.
9. Recent allegations
10. The Committee requests the Government to provide its observations on the latest IUF allegations concerning the anti-union dismissals in the Isla Grande and Gacelas agricultural companies.
11. 535. The allegations presented by the IUF concerning the last of the above recommendations are as follows (see 316th Report, para. 401):
12. Finally, in its communication of 5 May 1999, the IUF alleges that the banana company Chiriquí Land Company dismissed 16 workers of the Isla Grande S.A. agricultural complex, who wanted to join the Agricultural Workers' Union of Citron. These facts took place on 30 April 1999, a few days after their confirmation of membership had been transmitted to the company, in order to have their union dues checked off. The workers, like many of those who are employed by the Chiriquí Land Company (Chiquita, Unit 490) have no protection against occupational risks, are not affiliated to Costa Rica Social Security, and their salaries are not linked to the pay benchmarks set by the National Pay Board, since they were lowered to 5,000 colons (US$17) for two full weeks of work, without a single day of rest. This salary is also lower than the one agreed upon in their employment contract. In addition, following the fabricated dismissal motives, Mr. Gaitán Fernández (steward of the Trade Union of Workers of Agriculture, Cattle Raising and Associated Industries, and one of the most militant members of that union) was recently dismissed by the Gacelas agricultural enterprise.
13. B. New allegations by the complainant
14. 536. In its communications of 21 May and 17 November 1999, the IUF refers to the dismissal (of which the Committee had already been informed) of 16 trade union members who had been employed by the Chiriquí Land Company for more than eight months. The IUF also alleges that Mr. Daniel Gutiérrez Cárdenas, Secretary-General of the Workers' Trade Union of the Chiriquí Land Company, was dismissed in order to prevent him from using his experience towards the negotiation of a new collective agreement, that the company refuses to recognize him as a legitimate workers' representative, and that Mr. Fernando Valdelomar Canales was given a formal reprimand without good reason. It is also claimed that the company Oropel S.R. Ltd. is harassing the worker and trade union official Mr. Roberto Durán, accusing him of insubordination; that the Compañía Bananera Canfin dismissed Mr. José Reynaldo López González, a member of SITAGAH, after accusing him of verbally attacking the company administrator and another person; that the company, Roble, is harassing the trade unionist Mr. Luis Pérez Jarquín and blaming him alone for a poor harvest despite the fact that work is done in teams; that the banana company El Ceibo Ltda. 1 and 2 is harassing members of the union SITRAP even though it has lodged a complaint to the Minister of Labour for alleged unfair labour practices by the union, thereby prompting a swift response from the Ministry.
15. C. The Government's reply
16. 537. In its communications of 17 August and 7 and 13 September 1999, the Government states that it has issued instructions to the Director of the Labour Inspectorate to communicate the text of the definitive judicial ruling requested by the Committee concerning the dismissal of five workers whose reinstatement was ordered by a lower court. As regards the other allegations concerning this plantation (dismissal of 90 workers, etc.), labour authorities were instructed to provide information on any conciliation proceedings or inquiries carried out. The Government has also instructed labour authorities to supply the text of the ruling that will be handed down concerning anti-union practices within the company PAIS S.A. and to initiate conciliation proceedings and appropriate administrative measures in connection with allegations regarding the existence of security doors and guards who aggressively prevent union officials from entering. Regarding the allegation of harassment used to force workers to leave their union and that of preferential treatment for members of the solidarity association, the Government supplies the text of the lower court Ruling No. 273-99 of 2 July 1999 which exonerates the company.
17. 538. As regards the allegations of the IUF dating from 5 May 1999 concerning the dismissal of 16 workers employed on the Isla Grande property (Chiriquí Land Company) in April 1999 for joining the union and the dismissal of the SITAGAH union official Mr. Gaitán Fernández employed on the Gacelas property, the Government states, with regard to the alleged dismissal of 16 workers, that no complaint of this was ever made to the labour authorities; the only complaint concerned the company's refusal to accept the union membership cards submitted by union representatives. The conciliation meeting arranged by the labour authorities ended without any agreement being reached and the union made it clear that it was prepared to pursue the matter before the courts; one official who conducted an investigation recommended that the case be shelved given that 16 workers were not on the company's payroll and four others were, and the company stated that it was deducting union membership dues in the case of union members on the company payroll. The trade union UTRAL expressed its concern over the company's refusal to accept the membership cards of UTRAL members who, according to the statement, had been immediately dismissed. As regards the dismissal of the trade union official Mr. Augustín Gaitán Fernández, the Government states that the conciliation proceedings failed to bring about any consensus between the parties and the matter was then submitted to the National Directorate of the Inspectorate of Labour for examination. The company stated, with the support of the company's attendance register, that Mr. Fernández was dismissed for unjustified absences from work on 15, 19 and 22 February 1999.
18. 539. At the same time, the Government states that it has requested information from the competent authority concerning allegations relating to the dismissal of 90 union members in the enterprise Bananera Isla Grande.

D. The Committee's conclusions

• Enterprise Bananera Isla Grande S.A.
  540. 540 The Committee takes note of the Government's observations concerning the allegations still pending but regrets to note that the Government once again has not provided complete observations; it is therefore bound to refer to its previous recommendations concerning this company. In this respect, observing that in its investigation concerning the allegations relating to the enterprise Bananera Isla Grande S.A., the administrative authority found there to be harassment of workers to resign their membership of the trade union and considerable infringements of labour legislation, and that although on 5 August 1998 the judicial authority ordered the reinstatement in their duties of the workers who had been dismissed until then (five in all), this decision has not been implemented to date. The Committee must deplore once again these facts and urges the Government to send it without delay the text of the final decision handed down by the judicial authority and to have the judicial decision that has already been handed down ordering the reinstatement of the five dismissed workers, implemented pursuant to its obligations. The Committee regrets once again that the Government has not sent its observations on the other allegations relating to the enterprise Bananera Isla Grande S.A.: dismissal on the grounds of "unjustified absence" of 90 workers affiliated to the trade union who had signed the list of claims, following an alleged operation targeting illegal immigrants carried out at the border between 17 and 19 August 1998 by the Civil Guard and immigration officials in the presence of enterprise representatives, using lists of trade union members; pressure placed on workers to join a solidarity association; proposals made to workers to sign a "direct arrangement" with the enterprise outside the trade union; and pressure placed on trade union members to sign blank pieces of paper. The Committee urges the Government promptly to send its observations in this regard.
• Enterprise PAIS S.A.
  541. 541 The Committee notes that according to the Government, the ruling which had been requested has still not been handed down (concerning harassment and threats against workers to induce them to leave their union and the unjustified withholding of trade union membership dues), and that instructions have been given to implement conciliation procedures and administrative measures to resolve allegations of the existence of security doors and guards who aggressively prevent union officials from entering. The Committee requests the Government to inform it of the result of such measures and of any ruling that may be handed down.
• Enterprise Chiriquí Land Company
  542. 542 The Committee notes that Ruling No. 273-99 of 2 July 1999 exonerates the company of accusations relating to both the harassment of workers to force them to leave their union and the preferential treatment of solidarist association members. The Committee nevertheless stresses the principle according to which the necessary legislative and other measures should be taken 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 in favour of solidarist associations (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 775).
• The complainant's allegations of 5 May 1999
  543. 543 As regards the alleged dismissal of 16 workers employed on the Isla Grande property for joining the trade union UTRAL after they had informed the company of their membership for the purpose of deducting membership dues from wages, the Committee notes that according to the Government, the official appointed to investigate the matter found that 16 workers were not on the company payroll while another four were, although the complainant alleges that the 16 workers in question had been working at the company for more than eight months. The Committee notes that the trade union UTRAL declared its willingness to take legal action, and requests the Government to provide the text of any ruling given. The Committee requests the Government to indicate whether or not the 16 workers were working in the company, whether or not they were dismissed, and if so, to indicate the reason for dismissal.
  544. 544 As regards the alleged dismissal of trade union official Augustín Gaitán Fernández, the Committee notes that, according to the company, his dismissal was due to unjustified absences from work over a three-day period. The Committee requests the Government to verify whether this was in fact the case and to inform it in this regard.
• The complainant's allegations of 21 May and 17 November 1999
  545. 545 The Committee regrets that the Government has sent no observations concerning these allegations of anti-union dismissals and other anti-union acts and urges it to do so as soon as possible.

The Committee's recommendations

1. 546. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • Allegations concerning the Enterprise Bananera Isla Grande S.A.
     • (a) Regretting to note that the Government once again has not provided complete observations and noting that in its investigation into allegations concerning the enterprise Bananera Isla Grande S.A. the administrative authority had found that harassment had been used to force workers to leave their union, that there had been serious violations of labour legislation, and that the judicial authorities on 5 August 1998 ordered the reinstatement of the workers who had been dismissed to date (five in all), but that this decision has not been implemented to date, the Committee is bound to deplore once again these facts and urges the Government to send without delay the text of the final ruling made by the judicial authorities and to have the court ruling, already handed down and ordering the reinstatement of five dismissed workers, implemented pursuant to its obligations.
     • (b) The Committee regrets once again that the Government has not sent its observations on the other allegations concerning the company Bananera Isla Grande S.A., namely: the dismissal for "unjustified absence" of 90 trade union members who had signed the list of claims following an operation against illegal migrants conducted at the border between 17 and 19 August 1998 by police and immigration officials in the presence of company representatives and using lists of union members; pressure on workers to make them join a solidarity association; the proposal made to workers to sign a "direct arrangement" bypassing the union; and pressure on union members to sign blank pieces of paper. The Committee urges the Government promptly to send its observations in this regard.
   • Allegations concerning the enterprise PAIS S.A.
     • (c) The Committee requests the Government to send the text of the ruling given on the complaint presented by the administrative authorities concerning the use of harassment and threats against employees of PAIS S.A. to make them resign from their union as well as the withholding of trade union membership dues. The Committee requests the Government to inform it of any administrative action taken in response to the allegation that there are security doors at the enterprise and guards who aggressively prevent union officials from entering.
   • The complainant's allegations of 5 May 1999
     • (d) The Committee requests the Government to inform it of any ruling given on allegations concerning the dismissal of 16 workers employed by Bananera Isla Grande S.A. once it learned of their membership to UTRAL. The Committee requests the Government to indicate whether or not the 16 workers concerned worked in the company and, if so, to indicate the reason for their dismissal.
     • (e) The Committee requests the Government to verify once again whether the dismissal of the trade union official Mr. Augustín Gaitán Fernández was due to unjustified absences over a three-day period, as the company claims, and to inform it in this regard.
     • (f) The Committee urges the Government to send its observations on the complainant's allegations of 21 May and 17 November 1999 concerning anti-union dismissals and other anti-union acts.