Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 388, Mars 2019

Cas no 3253 (Costa Rica) - Date de la plainte: 01-DÉC. -16 - Clos

Allegations: The complainant organizations allege anti-union dismissals and anti-union persecution (blacklisting) in the private security sector

1. 288. The complaint is contained in communications from the Trade Union of Workers of the G Four Group (SINTRAGFOUR) and the Costa Rican Confederation of Democratic Workers (CCTD) dated 7 June and 1 December 2016.
2. 289. The Government sent its reply in a communication dated 24 October 2017.
3. 290. 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 complainants’ allegations

1. 291. In its communication dated 7 June 2016, SINTRAGFOUR alleges that several members of its executive committee and 92 of its members were subject to anti-union dismissals and anti union discrimination on behalf of the company GFOURS SA (hereinafter the private security firm). Furthermore, in a communication dated 1 December 2016, the CCTD adds that more than 150 members have been subject to anti-union dismissal since the establishment of SINTRAGFOUR, and that the real reason for these dismissals was their trade union membership and not disciplinary offences, which had been fabricated by the firm.
2. 292. The complainant organizations indicate that the trade union SINTRAGFOUR was established on 10 August 2013, and on 4 December 2013 it sent a letter to the legal representative of the firm with the aim of informing the firm of: (i) the establishment of the trade union; (ii) the workers who were members of the executive committee; and (iii) the deduction of trade union dues. Following this communication, the employment relationship between representatives of the firm and members of SINTRAGFOUR changed, and anti union harassment of the members of the executive committee began, in which they were implicated in arbitrary disciplinary offences that led to the dismissal of the majority of the members of the executive committee.
3. 293. The complainant organizations state that all of the members of the SINTRAGFOUR executive committee were dismissed as a result of anti-union discrimination and without recognition of their trade union immunity. After having sought recourse to the administrative authority of the Ministry of Labour and Social Security to no avail, they initiated legal action. The trade union leaders included: (1) Ms Graciela Reyes Umaña, who served as legal counsel, dismissed without employer liability on 30 August 2013; (2) Mr Vladimir Torres Montiel, general secretary, dismissed without employer liability on 23 April 2014; (3) Mr Jeffrey Duran Mora, finance secretary, dismissed in November 2014; (4) Mr Rigoberto Cruz Vásquez, treasurer, dismissed with employer liability on 23 January 2015; (5) Mr José Andrés Chevez Luna, training secretary, dismissed with employer liability on 2 February 2015; (6) Mr Wagner Cubillo Palacios, secretary, dismissed with employer liability on 3 February 2015; (7) Mr Félix Andino Munguía, records secretary, dismissed with employer liability on 1 March 2015; (8) Mr Carlos José Padilla Aviles, records secretary, dismissed with employer liability on 6 July 2015; and (9) Mr Jonás Arias Molina, president, also dismissed with employer liability on 6 July 2015.
4. 294. The trade union organizations emphasize that four members of the executive committee were able to prove in court the existence of anti-union harassment. The complainant organizations also indicate that, on three occasions, the defendant suspended the hearing in the labour tribunal, with the sole aim of delaying the proceedings. The case is now in the appeals phase, as the defendant brought an appeal against the judgment of the San José Labour Tribunal.
5. 295. The complainant organizations allege that the members of the executive committee who were subject to anti-union dismissals have not been able to find new jobs because they have been blacklisted. They state that a clear example is the case of Mr Carlos José Padilla Aviles, records secretary, who was dismissed with employer liability on 6 July 2015, but who, due to the nature of the events, cannot prove that this was the case.
6. 296. Lastly, the trade union organizations assert that the specific events reported in this case are a manifestation of the prevailing anti-union policies in both the public and private sectors in Costa Rica, which take the form of anti-union dismissals and a lack of will among the competent authorities, particularly the Ministry of Labour and Social Security, to expedite the procedures available to workers.

B. The Government’s reply

1. 297. In its communication dated 24 October 2017, the Government refers first of all to the report of the private security firm, which indicates that: (i) the dismissals are not attributable to workplace harassment, but to the closure of several large contracts, which led to the loss of 500 positions between 2014 and 2016; (ii) the firm’s business is private security services and the majority of its workers provide services in its clients’ facilities in different areas of the country; (iii) workers were designated for dismissal not owing to trade union membership, but to the type of contract to which they were assigned and the possibility of transferring them; (iv) the firm cannot be accused of unfair labour practices, given that, since 2008, it has permitted the existence of several trade unions and, at the time of the presentation of the communication, the following were present in the firm: the Union of Public and Private Enterprise Workers (SITEPP) with 75 members, SINTRAP with 15 members, the National Association of Public and Private Employees (ANEP) with 40 members, and SINTRAGFOUR with 53 members; and (v) there were justifiable grounds for the dismissals and, in many cases, conciliation was reached with the workers concerned.
2. 298. Regarding the anti-union dismissals of the members of the executive committee of SINTRAGFOUR of which it is accused, the private security firm indicates that: (i) Ms Graciela Reyes Umaña, Mr Rigoberto Cruz Vásquez, Mr José Andrés Chevez Luna and Mr Wagner Cubillo Palacios were dismissed with employer liability as a result of necessary restructuring processes following the closure of several large contracts; and (ii) Mr Vladimir Torres Montiel was dismissed without employer liability for repeatedly abandoning his post. The worker filed a claim, but an agreement was subsequently reached between the parties, thus ending the proceedings.
3. 299. Furthermore, the firm indicates that the real problem between the parties was the fact that the representatives of SINTRAGFOUR did not participate in the Labour Relations Board, a body established by collective agreement that has the authority to decide on all matters of dismissal without employer liability. In this regard, the security firm states that the Labour Relations Board is currently comprised of two trade union representatives from SITEPP and two employer representatives, and that it does not oppose members of the other trade unions participating in the Labour Relations Board, but that this must be agreed upon by the trade unions and not imposed by the firm. The security firm also indicates that an agreement is still in force that was concluded in 2013 with SITEPP, a trade union that is more strongly represented in the firm. The agreement was concluded before the conciliation tribunal established by the Labour Court and was in force until 22 November 2017. The private security firm adds that, in a decision of 14 July 2014, the Labour Court urged SINTRAGFOUR to negotiate before the Ministry of Labour and Social Security the possibility of SITEPP sharing its participation in the Labour Relations Board. The firm also indicates that it repeatedly attended hearings convened by the Ministry of Labour and Social Security, as recorded in the minutes provided by the complainant, with the aim of reaching an agreement with the trade unions, but the unions were not able to reach an agreement, and SINTRAGFOUR took this opportunity to accuse the firm of anti-union dismissals. Lastly, the firm states that, based on the foregoing, any accusation of anti-union harassment made against it must be disregarded, and that it remains open to dialogue and finding solutions that allow the firm and the trade unions to coexist harmoniously.
4. 300. The Government goes on to provide its own observations and begins by indicating that the National Directorate of Labour Inspection (DNI), which is the administrative authority responsible for monitoring compliance with trade union rights, indicates that: (i) it was aware of complaint No. SJ-PL-7072-14 of 2014 regarding harassment and unfair labour practices, lodged by the National Federation of Industrial Workers (FENATI), to which SINTRAGFOUR is affiliated; (ii) on that occasion, it reviewed the dismissals without employer liability of Mr Vladimir Torres Montiel and Ms Graciela Reyes Umaña, both trade union leaders of SINTRAGFOUR and, in February 2015, Mr Vladimir Torres Montiel stated his intention to have recourse to the courts, in the absence of an agreement with the firm before the DNI; and (iii) the DNI was not aware of any other complaints related to the other anti-union dismissals alleged in this case. The Government then indicates that the Directorate General of Labour Affairs, the body responsible for amicable intervention in labour disputes, reported that, between 2013 and 2016, a series of hearings were held in relation to alleged cases of anti-union harassment involving the union representatives of SINTRAGFOUR and the defendant firm.
5. 301. With regard to the allegations made by the CCTD in relation to the anti-union policies applied in Costa Rica, the Government responded that the allegations were unfounded, given that the Act on labour procedure reform came into force on 25 July 2017, and that this Act has, inter alia, streamlined judicial proceedings, reduced delays and strengthened protections for workers who enjoy special immunities and freedom from discrimination. Moreover, this Act allows for, by means of a summary procedure known as a labour safeguard, the issuance of a pre-sentence decision, which suspends the effects of the proceedings and orders the interim reinstatement of the worker concerned in his or her post. Lastly, this Act will allow, in cases in which the employment relationship is terminated, the worker to obtain a settlement of the sums owed more quickly than is currently possible, through the arbitration and conflict resolution services of the Ministry of Labour and Social Security.

C. The Committee’s conclusions

1. 302. The Committee notes that, in the present complaint, the complainant organizations allege that, as a result of the establishment of the trade union SINTRAGFOUR in August 2013, all of the members of the executive committee of this company union and a large number of its members were subject to anti-union dismissals and anti-union harassment on behalf of a private security firm.
2. 303. With regard to the alleged anti-union dismissals and the anti-union harassment, the Committee notes the complainant organizations’ allegations that, following the establishment of the trade union, all the members of the executive committee: Ms Graciela Reyes Umaña, Mr Vladimir Torres Montiel, Mr Jeffrey Duran Mora, Mr Rigoberto Cruz Vásquez, Mr José Andrés Chevez Luna, Mr Wagner Cubillo Palacios, Mr Félix Andino Munguía, Mr Carlos José Padilla Aviles and Mr Jonás Arias Molina, were dismissed with no respect for their trade union immunity. In the absence of an agreement before the administrative authority of the Ministry of Labour and Social Security, the union leaders filed complaints with the courts and four of them were able to prove the existence of anti union harassment. In addition, 150 members were allegedly dismissed for anti-union reasons since its establishment.
3. 304. The Committee also notes the firm’s indication that there were sound reasons for the dismissals, more specifically, that they were the result of the closure of several large contracts and, furthermore, in many cases conciliation was reached with those concerned. The firm also indicates that the real issue lies in the absence of SINTRAGFOUR representatives on the Labour Relations Board, the body that examines and takes decisions regarding all dismissals without employer liability, and adds that it does not oppose representatives of other trade unions sitting on this board, but that this must be agreed upon by the trade unions. The Committee also notes that the Government’s indication in its response that two cases of harassment and unfair labour practices were heard before the DNI and that a series of hearings in relation to alleged cases of anti-union harassment were held in the Directorate General of Labour Affairs, the body responsible for amicable intervention in labour disputes.
4. 305. The Committee notes all these factors and observes that the complaint refers, on the one hand, to the dismissal of nine SINTRAGFOUR union leaders and, on the other, to the alleged dismissal of a large number of its members.
5. 306. With regard to the dismissal of the nine union leaders, while noting the complainants’ affirmation that four union leaders could prove the anti-union nature of their dismissal before judicial authorities, the Committee observes that the information included in the annexes provided by the complainant organizations shows that: (i) three trade union leaders, Mr Rigoberto Cruz Vásquez, Mr José Andrés Chevez Luna and Mr Wagner Cubillo Palacios, obtained a favourable judgment in the first instance, which was appealed by the firm and, at the time of the presentation of the communication, was still in the appeals process; (ii) the employment relationships of three trade union leaders were terminated by mutual agreement, Mr Jeffrey Duran Mora, Mr Félix Andino Munguía and Mr Jonás Arias Molina; and (iii) specific information was not provided with regard to the other trade union leaders.
6. 307. The Committee recalls that, in cases of the dismissal of trade unionists on the grounds of their trade union membership or activities, the Committee has requested the Government to take the necessary measures to enable trade union leaders and members who had been dismissed due to their legitimate trade union activities to secure reinstatement in their jobs and to ensure the application against the enterprises concerned of the corresponding legal sanctions. The Committee also recalls that if the judicial authority – or an independent competent body – determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1167 and 1175]. On this basis, the Committee requests the Government to provide information on developments in the pending cases and also those on which information is not available, and expects that these cases will be addressed in the near future.
7. 308. Regarding the alleged 150 anti-union dismissals of workers affiliated to SINTRAGFOUR, the Committee observes in the first place that the complainants allege that those dismissals took place following the dismissal of all the members of the executive committee of the trade union and that the true reason behind these dismissals was the union affiliation of its members. The Committee also notes that the complainants provide an incomplete list of the 150 dismissed workers affiliated to the union in the annexes to the complaint. Secondly, the Committee observes that the company informs it that those dismissals were based on objective grounds, as a result of the closure of several large contracts and, in many cases, conciliation was reached with the workers concerned. The company indicates that the real problem is that, unlike the most representative union, SINTRAGFOUR does not participate in the Labour Relations Board of the company, an internal body established by collective agreement that examines and takes decisions regarding dismissals without employer liability. The company indicates that this problem should be resolved by the unions concerned. Lastly, the Committee observes that besides the judicial proceedings concerning anti-union dismissals referred to previously, the Ministry of Labour and Social Security indicates that it has received several reports of anti-union dismissals that are being treated either by the National Directorate of Labour Inspection or by the General Directorate of Labour Affairs.
8. 309. Faced with divergent versions regarding the reasons for the dismissals and recalling that in cases involving a large number of dismissals of trade union leaders and other trade unionists, the Committee considered that it would be particularly desirable for the Government to carry out an inquiry in order to establish the true reasons for the measures taken [see Compilation, op. cit., para. 1133], the Committee requests the Government to conduct a comprehensive investigation of the alleged dismissals and to keep it informed of the outcomes. The Committee also requests the complainants to provide further information on the alleged anti-union dismissal of 150 members of SINTRAGFOUR.

The Committee’s recommendations

1. 310. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to provide information on developments in the cases that are pending and also those on which information is not available, and expects that those cases will be addressed in the near future, in accordance with the Committee’s decisions in the above conclusions.
   • (b) With regard to the alleged anti-union dismissals of the members of the executive committee of the Union of Workers of the G Four Group (SINTRAGFOUR) and 150 of its members, which is alleged to have taken place following its establishment, the Committee requests the Government to conduct a comprehensive investigation with respect to those dismissals and to keep it informed of the outcomes.
   • (c) The Committee requests the complainants to provide further information on the alleged anti-union dismissal of 150 members of SINTRAGFOUR.