Rapport définitif - Rapport No. 333, Mars 2004

Cas no 2231 (Costa Rica) - Date de la plainte: 08-NOV. -02 - Clos

Allegations: Dismissals at the PROPOKODUSA S.A. company of members of the trade union executive committee and other workers who did not accept the change in conditions of work offered by the company

1. 510. The Committee examined this case at its May-June 2003 meeting and submitted an interim report [see 331st Report, paras. 357-376, approved by the Governing Body at its 287th Session (June 2003)].
2. 511. The Government sent new observations in a communication dated 2 September 2003.
3. 512. 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. 513. In its previous examination of the case in May-June 2003, the Committee made the following conclusions and recommendations [see 331st Report, paras. 370-376]:
2. – The Committee observes that in the present case the complainant organization has alleged anti-union dismissals with management responsibility (i.e. with payment of the legal compensation set out in the legislation on unfair dismissal) of a group of workers in the PROPOKODUSA company (37 according to the information provided by the Government and the company) including the eight members of the executive committee of the SINTRAINAVI union because of the formation of this union, the dismissals taking place without warning on 25 July 2002 when the workers in question did not accept the new and unilateral conditions of work proposed by the company, which invoked a supposed and unknown process of restructuring of the company.
3. – The Committee observes that the company, for its part, maintains that the dismissals do not have anti-union but economic motives, that the process of restructuring was known to the workers since the beginning of 2002, that meetings had been held in the company (the last on 12 July 2002), that only 21 of the 140 company workers were members of the union and that 25 July 2002 was the deadline for workers to accept the restructuring, i.e. the new conditions of work proposed by the company (see last paragraph of the Government’s reply) and that anyone who did not accept the changes would be dismissed with payment of their full labour entitlements.
4. – The Committee takes note of the inspections and conciliation hearings (which were unsuccessful) conducted by the Ministry of Labour authorities as a result of a trade union complaint and observes that in the investigation the trade union side did not provide the membership cards of all the members dismissed as requested by the authorities but only those of the eight members of the trade union’s executive committee, nor did it state how far and to what degree the alleged unlawful actions by the company affected those members, for which reason it was not possible to proceed with the investigation for lack of the information requested from the complainant trade union. The Committee observes that on 13 December, the National Director and Inspector General of Labour asked for the investigation into the case to be continued.
5. – The Committee observes that, contrary to the company, the complainant organization maintains that the workers had no knowledge of the restructuring until the last minute.
6. – The Committee requests the Government and the complainant organizations to send additional information and, in particular, to transmit all legislative texts ensuring protection of trade union officials and to indicate whether this legislation protects them against dismissal throughout their term of office (except in the case of serious professional misconduct) or whether it only protects them to the extent that the dismissal decision or other prejudicial measure is related to the performance of trade union activities.
7. B. The Government’s new observations
8. 514. In its communication of 2 September 2003, the Government recalls all the conciliatory measures taken by the Ministry of Labour in this matter and records the regulations in the Labour Code that ensure the protection of trade union officials and indicates that this protection extends to the process of establishing the trade union and throughout the duration of its mandate (in such cases, up to six months after the expiry of the respective periods).
9. 515. According to the Government, the articles in question establish the following:
10. Chapter 3 on the protection of trade union rights
11. Article 363: Any action or omission that is liable to impede, limit, restrict or prevent the free exercise of the collective rights of workers, their trade unions or workers’ associations is prohibited.
12. Any act arising out of said actions or omissions shall be totally null and void and shall be penalized according to the means and conditions laid down in the Labour Code, and its supplementary or related acts for the infringement of prohibitive regulations.
13. Article 364: Any individual or trade union so concerned may lodge a complaint in writing with the National Labour Inspection Directorate relating to the perpetration of unfair labour practices; however, these practices may also be investigated in the absence of a complaint being lodged.
14. Article 365: The National Labour Inspection Directorate shall investigate, using the measures that it considers necessary, those violations of which it has been informed. If it decides that it would be useful to have knowledge of the background of the matter, it shall summon the parties concerned or, if they have them, their legal representatives, to a hearing during which all the evidence considered necessary shall be received.
15. Article 366: Without prejudice to the outcome of the hearing mentioned in the previous article, if the existence of unfair labour practices is confirmed a written record shall be established and the National Director and Inspector General of Labour shall file the relevant judicial complaint, with precedence over any other matter.
16. In order to safeguard the rights protected by this Act, shall be imposed the penalties laid down in the labour legislation in force, without prejudice to any other judicial measure that might be established.
17. If it is not useful to have knowledge of the background of the matter or if the existence of unfair labour practices is not confirmed, the file shall be closed by a justified decision. This decision shall be subject to the usual motions for reversal of decision or appeal, the latter to be filed with the Ministry of Labour and Social Security, which shall exhaust all possible administrative recourse.
18. Article 367: Without prejudice to more favourable decisions, established in accordance with collective labour agreements, the persons mentioned below shall enjoy employment stability in order to ensure the defence of the collective interest and autonomy in carrying out trade union activities as a minimum, and for those periods of time indicated:
19. (a) Up to 20 workers who belong to and are involved in the establishment of a trade union. This protection lasts for two months, from the time of notification of the list of names to the Department of Social Organizations of the Ministry of Labour and Social Security in the form indicated herein, and for two months after the relevant request for registration is presented. This period may not exceed four months. In order to enjoy this protection, those concerned shall notify, through reliable means, the department mentioned and the employer of their intention to establish a trade union and the names and status of those who, in their opinion, should benefit from this protection.
20. (b) One trade union official for the first 20 workers who join the union in the respective enterprise and one for every 25 workers who join the union after that, up to a maximum of four. This protection shall be extended for the period of time in which they hold office and for six months after the expiry of their respective mandates.
21. (c) Trade union members who, in accordance with the statutes of the respective trade union, run as candidates for election to the executive committee. This protection shall last for three months, from the time that they inform the Department of Social Organizations of their candidacy.
22. (d) Should an enterprise have no trade union, representatives freely elected by the workers shall enjoy the same protection, as indicated and for an equal length of time, as that laid down in subparagraph (b) of this article.
23. Article 368: A worker who is protected under the current Act and who is unfairly dismissed shall not be affected by the provisions of article 28 of this Labour Code. The competent labour court shall declare this dismissal null and void and, consequently, shall order the worker’s reinstatement and payment of back wages, as well as the corresponding penalties imposed on the employer, in accordance with this Labour Code and its supplementary and related acts. If the worker expressly indicates that he wishes not to be reinstated, he shall receive compensation equivalent to the wages accruing to him during the protection period from which he did not benefit, as well as the corresponding labour rights with regard to unfair dismissal, in accordance with the previous article.
24. Article 369: Further to those just causes provided in article 81 of this Labour Code, the following shall also be considered as giving rise to the employer being able to terminate the employment contract of workers protected under the current Act:
25. – bringing pressure on or committing violence against persons or things, or any other act that is intended to encourage disorder or undermine the peaceful nature of a strike;
26. – attacking company property;
27. – inciting the perpetration of acts that result in destruction of labour materials, tools or products or goods or that decrease their value or cause their deterioration, or participating in such acts;
28. – inciting, directing or participating in the intentional decrease in returns or in the interruption or the illegal obstruction of labour activities;
29. – wrongfully withholding persons or property or using these in a wrongful manner in demonstrations or pickets;
30. – inciting destruction, disruption or interruption of public or private facilities, or participating in acts that cause damage to them.

C. The Committee’s conclusions

1. 516. In the present case, the complainant organization alleged anti-union dismissals (with payment of the legal compensation set out in the legislation on unfair dismissal) of a group of workers in the PROPOKODUSA company (37 according to the information provided by the Government and the company) including the eight members of the executive committee of the SINTRAINAVI union because of the formation of this union, the dismissals taking place without warning on 25 July 2002 when the workers in question did not accept the new and unilateral conditions of work proposed by the company, which invoked a supposed and unknown process of restructuring of the company.
2. 517. The Committee observed that the company, for its part, maintained that the dismissals did not have anti-union but economic motives, that the process of restructuring was known to the workers since the beginning of 2002, that meetings had been held with the workers (the last on 12 January 2002), that only 21 of the 140 company workers were members of the union and that 25 July 2002 was the deadline for workers to accept the restructuring, i.e. the new conditions of work proposed by the company and that anyone who did not accept the changes would be dismissed with payment of their full labour entitlements.
3. 518. The Committee notes the Government’s information with regard to the provisions of the Labour Code, which protects against anti-union discrimination, and which includes administrative and judicial proceedings allowing anti-union dismissals to be declared null and void and penalties to be imposed.
4. 519. The Committee notes that the complainant organizations have not sent the additional information that was requested from them and that neither the complainant organizations nor the Government have indicated that those dismissed have begun legal proceedings. In these circumstances, taking into account the contradicting reports of the complainants and the company on the dismissals, the Committee is not in a position to reach conclusions on this matter and, therefore, will not proceed with an examination of this case.

The Committee's recommendations

1. 520. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.