Rapport définitif - Rapport No. 393, Mars 2021

Cas no 3312 (Costa Rica) - Date de la plainte: 01-FÉVR.-18 - Clos

Allegations: The complainant organization alleges that it has been excluded from collective bargaining processes in the public education sector despite its representative status

1. 287. The complaint is contained in two communications from the Association of Secondary School Teachers (APSE) dated 8 June 2017 and 1 February 2018.
2. 288. The Government sent its observations in communications of 26 April 2019 and 22 January 2021.
3. 289. 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 complainant’s allegations

1. 290. In its communications dated 8 June 2017 and 1 February 2018, the APSE, which was established in 1955 as a civil association and became an industry trade union in 2014, states that it has a membership of approximately 40,000 workers from the different occupational and professional categories of the Ministry of Public Education (MEP) (teachers, educators, technical and administrative staff and interdisciplinary professionals).
2. 291. The complainant organization states that, in 2013, the MEP, together with the Costa Rican Education Workers’ Union (SEC) and the Union of School Cafeteria and Other Related Workers (SITRACOME), signed the first collective labour agreement (CLA) for public employees in the education sector working for the MEP. The complainant organization states that the CLA was valid for three years and that, on 1 April 2016, both unions denounced it with a view to negotiating the second CLA. The complainant organization states that the negotiation process for the second CLA was undertaken by a union coalition comprising the two aforementioned unions, as well as the APSE and the National Association of Teachers (ANDE). The complainant organization alleges that, when the negotiations for the second CLA were completed and that all that remained was for the agreement to be signed, the Minister for Education unilaterally and arbitrarily excluded the APSE and concluded the CLA with the other three unions. The complainant organization claims that not only had the APSE actively participated in the process of negotiating the CLA, but that it is also the most representative union of the MEP as it is the one to which the majority of unionized workers from the different categories of public employees who provide their services in the Ministry belong. According to the complainant organization, the Minister’s action constitutes a typical act of reprisal and anti-union discrimination against the APSE for having opposed several bills, in relation to which the APSE had called a strike.
3. 292. The complainant organization adds that, on 1 June 2016, the MEP signed the second CLA with the other three unions. It also states that this CLA had a period of validity of one year and that, one month before its expiry, the APSE asked the Minister to start the negotiation process for the next CLA. According to the complainant organization, in order to prevent the APSE from negotiating the next CLA, the Minister decided to extend the second CLA for a period of three years, once again excluding the APSE from the CLA.
4. 293. The complainant organization further alleges that, despite the efforts made to open forums for dialogue and to acknowledge the participation of the APSE, in some of the joint bodies under the CLA, such as the Joint Labour Relations Board, this has been impossible. The complainant organization states that the Board is a joint body established under the agreement, composed of representatives of the MEP and representatives of the unions that signed the CLA, and it has broad negotiating powers. The complainant organization alleges that, having been arbitrarily excluded from the CLA and from participating in the Board, the APSE has essentially been denied access to any collective bargaining forums.
5. 294. The complainant organization states that, under the legal system, the entitlement to negotiate a CLA rests with the majority union. In the public sector, in accordance with section 56(b) of the Labour Code, if several enterprise unions or unions for a branch of activity each present their own proposal for a CLA, the management shall ask them to present a joint proposal, and in the absence of a response or if there is any opposition, the CLA shall be negotiated with the majority union, without prejudice to negotiations with the other unions, with which any agreements reached will apply only to the members of the union in question. The complainant organization maintains that, in the light of the above, it is incumbent on the APSE to negotiate the CLA that covers all MEP workers, as it is the union to which the majority of workers directly affected by the CLA belong.
6. 295. The complainant organization adds that, at the same time as the aforementioned events, the APSE asked the Director of Human Resources of the MEP to attest to how many workers were members of the SEC, SITRACOME and the ANDE unions (the signatories to the CLA), but that this information was denied. According to the complainant organization, the refusal to provide this information is part of the institutional, systematic, discriminatory and anti-union targeting of the APSE, which, as a whole, causes it serious and irreversible damage that threatens its normal functioning, substantially restricting the performance of the union role and threatening the very existence of the union.

B. The Government’s reply

1. 296. In its communication of 26 April 2019, the Government states that, on 16 April 2013, the MEP, with the SEC and SITRACOME unions, signed the first CLA governing labour relations for workers in the public education system whose sole employer is the MEP (approximately 85,000 workers). This CLA was approved on 17 May 2013 and entered into force a day later, with a period of validity of three years, that is to say until 18 May 2016. According to the Government, the negotiations for this CLA led two long-standing associations in the field of Costa Rican education, the APSE and the ANDE, which were established in 1955 and 1942 as civil associations, to become trade union organizations, in order to participate in collective bargaining in the education sector.
2. 297. The Government states that, on 1 April 2016, the SEC and SITRACOME unions gave notice of the termination of the CLA, and informed the MEP that a broader union coalition had been formed and that the ANDE and the APSE unions would also participate in the negotiations for the new CLA. The Government states that, although the negotiations for the second CLA took place quickly and in a positive way, the discussion within the Legislative Branch of a bill (Act No. 19506 on arrangements for additional remuneration beyond the base salary of the public sector) had divided the activities of the unions that were in the process of negotiating the second CLA: while the SEC, SITRACOME and the ANDE stayed at the negotiating table for the CLA, the APSE left the coalition and unilaterally abandoned the negotiation process, calling a general strike to be held on 29 June 2016 in protest against the bill. The Government states that the actions of the APSE forced the MEP to continue the process of dialogue towards the second CLA only with the organizations that decided to remain at the negotiating table. The Government denies the allegation that the MEP excluded the APSE from the negotiations in an act of anti-union reprisal and maintains that the APSE, in disagreement with the rest of the coalition of teachers’ unions with regard to strategy for mounting a campaign, withdrew itself from the negotiating table.
3. 298. The Government states that, on 1 June 2016, the MEP and the unions that stayed at the negotiating table (the SEC, SITRACOME and the ANDE) signed the second CLA. It was approved on 10 June 2016, entered into force the day after its approval (11 June 2016) and was valid for one year from that date, that is to say until 11 June 2017. The Government states that, on 5 May 2017, as the expiry date of the second CLA approached, the APSE requested the MEP to begin the process of negotiating the third CLA, for which it submitted a draft for negotiation. The Government states that the APSE had informed the MEP of several attempts to ensure that the third CLA could be negotiated and signed jointly with the SEC, SITRACOME and the ANDE, but that its direct efforts had not met with success, so it requested the Minister of Labour to convene all union organizations so that they could reach an understanding and jointly negotiate the next CLA. The Government has sent a copy of a letter that the APSE sent to the Minister for Public Education on 5 May 2017, in which the APSE acknowledges the efforts made by the Minister for Labour in having invited all the union organizations to a meeting to be held on 4 May 2017, so that they could reach an understanding and jointly negotiate the draft version of the next collective agreement. In this letter, the APSE confirms that the SEC, SITRACOME and the ANDE did not attend that meeting and that, when the Minister for Labour insisted on holding another meeting on 5 May 2017, the organizations stated that they could not attend that one either, thereby demonstrating a lack of interest in the joint negotiation process. The Government states that the MEP has always been in favour of the participation of the APSE in the negotiations for the third CLA and stresses that, although it made efforts to help the unions overcome their differences and participate in collective bargaining as a united group, it did not achieve its goal of reconciling them.
4. 299. The Government states that, in view of the clear inter-union dispute, the MEP refused the request of the APSE to negotiate a new CLA, because the organization was not part of the union coalition representing workers’ interests in the second CLA. According to the Government, the MEP informed the APSE that: (i) it could not engage in negotiations with the APSE, which until then had not demonstrated through the appropriate mechanisms that it was more entitled than the group in question to represent the collective labour interests of the workers of the MEP; and (ii) it was prevented, as an employer, from intervening in the internal affairs of the unions and was prohibited from taking unilateral decisions with respect to the union representation of the workers. The Government further states that the membership that the APSE claims to have from among the public employees of the MEP is not correct because the number it cites includes retirees who are no longer actively working in the education sector. The Government states that neither is it correct to say that it is the majority union across all the occupational and professional categories of the MEP, as the coalition of the SEC, SITRACOME and the ANDE has more members than the APSE and includes workers from all of the categories.
5. 300. The Government states that the MEP and the coalition unions (the SEC, SITRACOME and the ANDE) agreed, for reasons of convenience and opportunity, not to denounce the second CLA and that, under article 68 of that agreement, the second CLA was automatically extended for three years as from 11 June 2017, that is to say it would be valid until 11 June 2020.
6. 301. The Government states that: (i) on 4 September 2017, the president of the APSE petitioned the Ministry of Labour and Social Security (MTSS) to declare invalid the ministerial decision that approved the aforementioned extension (this is because the CLA was valid for one year and it could not be automatically extended for a period of three years); (ii) the MTSS ordered the Directorate of Legal Affairs of the MTSS to conduct a legal study in this regard; (iii) the Directorate of Legal Affairs of the MTSS ruled that the wording “This agreement may be automatically extended for three-year periods” contained in article 68 of the agreement was invalid, as it extended the agreement for three years, whereas the previous period had been only one year, and it recommended that the Minister for Labour should request the invalidity of this wording, without entailing changes to the act of approval or to the rest of the content of the CLA; (iv) in order to correct the point referred to by the Directorate of Legal Affairs of the MTSS, the main parties to the CLA agreed to amend the period of validity of the CLA, specifying that it was to be valid for three years from the first annual extension that had already put into effect, that is to say from 12 June 2017 to 12 June 2020, maintaining the possibility that, in the event of an automatic extension, the CLA should be extended for an equal period (of three years); and (v) this amendment to the CLA was made on 20 July 2018.
7. 302. The Government states that the MEP holds regular meetings with the leadership of the APSE to discuss matters of interest to its members and that all of the union’s officials enjoy trade union immunity, are granted trade union leave and benefit from facilities in the exercise of their duties. The Government also states that, although the APSE does not participate in the Joint Labour Relations Board, because the Board is a body under the agreement and the APSE is not a party thereto, it participates in the negotiations to reform the public employment system and in specific committees, such as the committee to review the amendment of incentive pay.
8. 303. As for the information concerning the membership of the other unions that the APSE allegedly requested from the MEP, the Government states that the information was never denied to the APSE, but that the Director of Human Resources of the MEP informed it that this information should be requested from the competent agency, in this case, the National Treasury.
9. 304. The Government considers that the dispute raised by the APSE is rather a dispute of an inter-union nature, in which it cannot intervene on pain of violating the freedom of association enshrined in international conventions and constitutional jurisprudence, in particular Vote No. 5000-93 of the Constitutional Chamber, all of which oblige the employer and the State not to intervene in the internal decisions of unions, to guarantee their independence to negotiate and not to change unilaterally the worker representation in an existing CLA. The Government states that, notwithstanding the foregoing, the recently enacted legislation (sections 699 and 701 of the Labour Code) establishes the procedure to be followed in the event that the unions do not agree before entering into negotiations for a CLA. In particular, section 701 provides that: “When there are several trade union organizations at the negotiating table and each of them has submitted its own draft collective agreement, they will be asked to prepare a single draft before the negotiations begin. If they have not complied with this requirement within one calendar month from the date on which they were informed of it by the management of the institution or enterprise concerned, the draft that will be the subject of the negotiations will be, if a single company or negotiation is concerned, the one submitted by the majority union, or, if a sectoral negotiation is concerned, the one that is supported by the majority of union representatives.”
10. 305. In its communication of 22 January 2021, the Government states that the second CLA, signed on 1 June 2016 between the MEP and the ANDE, SITRACOME and SEC unions, was terminated on 7 May 2020. It also states that the third CLA was signed between the MEP and the ANDE, SITRACOME, SEC and APSE unions on 1 December 2020. The Government further states that the CLA is currently being reviewed by the MTSS under file No. 947. In view of the above, the Government considers that the demand set out in the complaint filed by the APSE has been met in full, as the APSE participated in the negotiation and signed the third CLA with the MEP.

C. The Committee’s conclusions

1. 306. The Committee notes that, in the present complaint, the APSE, which is a trade union of workers in the education sector, alleges that the MEP has excluded it from the collective bargaining process, despite its representative nature, causing it serious and irreversible damage that threatens its normal functioning and the very existence of the union.
2. 307. The Committee notes that the complainant organization and the Government agree that: (i) on 16 April 2013, the MEP signed a CLA with the SEC and SITRACOME trade unions, which remained valid until 18 May 2016; (ii) in 2014, the APSE and the ANDE, which were established in 1955 and 1942 as civil associations, became trade union organizations; and (iii) on 1 April 2016, the SEC and SITRACOME gave notice of the termination of the CLA and informed the MEP that the process of negotiating the second CLA would be taken over by a trade union coalition comprising these unions as well as the APSE and the ANDE.
3. 308. The Committee notes that the accounts given by the complainant organization and by the Government as to the manner in which the second CLA was signed differ. On the one hand, the complainant organization claims that: (i) when all that remained was for the second agreement to be signed, the Minister for Education decided arbitrarily to exclude the APSE and concluded the CLA with the other three unions; (ii) the Minister acted in reprisal because the APSE had called a strike in relation to a public policy bill; and (iii) it is incumbent on the MEP to negotiate with the APSE because it is the most representative union of the MEP, with a membership of almost 40,000 people comprising the largest number of MEP workers.
4. 309. For its part, the Government maintains that: (i) it was not the MEP that excluded the APSE from signing but rather it was the APSE that left the trade union coalition and abandoned the process of negotiating the second CLA to call a general strike on 29 June 2016 in protest against the bill; (ii) the membership that the APSE claims to have is not correct, because the number it cites includes retirees who are no longer actively working in the education sector; and (iii) neither is it correct to say that it is the majority union across all the occupational and professional categories of the MEP, as the coalition of the SEC, SITRACOME and the ANDE has more members than the APSE and includes workers from all of the categories.
5. 310. The Committee notes that both the complainant organization and the Government state that, on 1 June 2016, the MEP signed with the SEC, SITRACOME and the ANDE the second CLA with a period of validity of one year.
6. 311. The Committee notes that, according to the complainant organization, in order to prevent the APSE from participating in the negotiations for the third CLA, the MEP extended the second CLA for a period of three years. The Committee notes that the Government denies this allegation and points out that the MEP has always been in favour of the participation of the APSE in the negotiations for the third CLA and even convened two meetings for all the trade unions so that they could reach an understanding and jointly negotiate the draft of the next collective agreement (which has been acknowledged by the APSE in a letter sent to the MEP and included as an annex by the Government). According to the Government, there was a dispute between the unions, in which it could not intervene, for which reason the MEP and the coalition unions (the SEC, SITRACOME and the ANDE) agreed, for reasons of convenience and opportunity, not to denounce the second CLA, and instead to extend it for three years from 11 June 2017. The Committee also notes that, according to the Government, the APSE requested that the ministerial decision approving the aforementioned extension be declared invalid (because the CLA was valid for one year and it could not be automatically extended for a period of three years) and, as a result, by order of the Directorate of Legal Affairs of the MTSS, on 20 July 2018 it was specified that the CLA was to be valid for three years, from the first annual extension that had already put into effect, that is to say from 12 June 2017 to 12 June 2020.
7. 312. The Committee also notes that, with regard to the allegation that it has been impossible for the APSE to participate in the joint bodies under the CLA, mainly the Joint Labour Relations Board, the Government states that this is because the Board is a body under the agreement and the APSE is not a party thereto, but that the APSE nevertheless participates in the negotiations to reform the public employment system, has regular meetings with the MEP, and its officials enjoy trade union immunity, are granted trade union leave, and benefit from facilities in the exercise of their duties. Furthermore, the Committee notes that the Government denies the allegation that the Director of Human Resources of the MEP refused to give the APSE information on the number of members of the SEC, SITRACOME and the ANDE, and claims instead that the APSE was informed that this information should be requested from the National Treasury.
8. 313. The Committee notes that, according to national legislation, if there are several trade unions at the negotiating table and they cannot agree on a single draft for negotiation, the draft submitted by the majority trade union must be taken as the one to be negotiated. In the light of the above, the Committee regrets to note that, in view of the disputes concerning participation in the negotiations which are the subject of this complaint, including the differing accounts by the complainant organization and by the Government regarding the degree of representativeness of the trade unions in question, everything seems to indicate that such representativeness was not verified, so that to date there is no clear and objective information as to the number of members of each of these unions and therefore their capacity to negotiate with the MEP.
9. 314. In this regard, the Committee recalls that the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible. If the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer’s recognition of that union for collective bargaining purposes [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1366].
10. 315. The Committee notes that, in its most recent communication, the Government states that the second CLA, signed on 1 June 2016 between the MEP and the SEC, ANDE and SITRACOME unions, was terminated on 7 May 2020. It also states that the APSE participated together with the aforementioned unions in the negotiation of the third CLA, which was signed on 1 December 2020 by the Government and the SEC-ANDE-SITRACOME-APSE trade union coalition. According to the Government, that CLA is currently (January 2021) being reviewed by the MTSS for approval under file No. 947.
11. 316. In the light of the above and having received no further information from the complainant organization, the Committee understands that the subject of the present complaint has been resolved through the inclusion of the APSE in the third CLA. Noting, however, that the approval of the third CLA is still pending, the Committee expects the Government to take the necessary measures to bring the agreement into force as soon as possible and trusts that this will contribute to the harmonious development of collective relations in the MEP.

The Committee’s recommendation

1. 317. In the light of its foregoing conclusions, which do not call for further examination, the Committee invites the Governing Body to approve the following recommendation: