Definitive Report - REPORT_NO120, 1971

1. 153. The Committee examined this case at its session in May 1970, when it submitted an interim report to the Governing Body, which appeared in paragraphs 77 to 121 of its 119th Report, approved by the Governing Body at its 180th Session (May-June 1970).
2. 154. The case comprised the following allegations: allegations relating to a clash between the police and workers at Puerto Limón; allegations relating to the dismissal of workers at the Luxform underwear factory; allegations regarding the threat of action against the workers' and peasants' movement; allegations regarding action against Mr. Juan Rafael Solis Barboza, press secretary of the complainant organisation, at the instigation of the Costa Rican authorities; allegations relating to the expulsion of union leaders from the banana-growing area owned by the Ticaban Company; allegations relating to the dismissal of trade unionists by plantation employers; allegations respecting an attack by government forces on trade union members in the Estrella valley.
3. 155. Among these allegations, only the last three remain pending, the Committee having submitted its final recommendations on all the others to the Governing Body, which approved them.

A. A. The complainants' allegations

• Allegations relating to the Expulsion of the Union Leaders from the Banana-Growing Area Owned by the Ticaban Company
  156. 156 The complainants allege that union leaders were expelled by the police from the area owned by the foreign Ticaban Banana Company.
  157. 157 In its reply, the Government states that trade union activities, like any other activity unrelated to work, must not be carried out during working hours, nor may they be carried out at the place of work or on the employer's property except with his express or tacit consent; it followed that unless this consent is given, such activities can be regarded as a breach of the prohibitions and obligations imposed on workers by sections 71 and 72 of the Labour Code. Moreover, the Government goes on to state, the exercise of trade union activities by persons unconnected with the company on the employer's property could also be regarded as a breach of the principle of the inviolability of property laid down by section 45 of the Constitution. Accordingly, the Government states, any person, whether a union leader or not, who enters company property can be expelled by the police at the employer's request.
  158. 158 Having observed, at its session in May 1970, that this is what would appear to have occurred in the present case, the Committee, after having recalled the importance which should be attached to the principles laid down by the ILO Plantations Committee at its First Session (Bandung, December 1950), recommended the Governing Body, as it had already had occasion to do when examining previous cases in which Costa Rica was concerned, to remind the Government of the importance it attaches to safeguarding the right of entry to plantations by trade union representatives engaged in lawful trade union activities and to the right of plantation workers to hold trade union meetings on the spot, to express the concern it feels that its earlier recommendations to the Government in various similar cases do not appear to have led to the adoption of practical measures to implement this right and to request the Government to keep it informed of any measures it may have taken or be planning to take to this end.
  159. 159 In the observations which it presented on 22 September 1970 on this aspect of the case, the Government states that Legal Opinion No. 1772 of 5 September 1967 issued by the Ministry of Labour maintains and guarantees full and unrestricted freedom for trade union leaders to exercise their activities in the homes of the workers and in parks, squares and pathways belonging to the employer provided that such activities are not carried out in working hours and do not interfere with work. " In order to authorise the exercise of trade union activities at any time ", the Government continues, " it would be necessary to carry out a complete reform of our juridical order, including the Political Constitution, the Labour Code and all additional and related labour legislation at present in force."
  160. 160 Legal Opinion No. 1772 seems to provide trade union leaders with the possibility of entering plantations in order to carry out their trade union activities on the conditions provided for therein.
  161. 161 It appears to the Committee, however, that the legal opinion in question is rendered inoperative in practice by the manner in which the provisions referred to in paragraph 157 above are implemented, the effects of which had been noted by the Committee at its session in May 1970.
  162. 162 In these circumstances, the Committee recommends the Governing Body to insist that the Government should take all legislative and other measures to give effect to the right of trade union leaders to enter plantations to exercise lawful trade union activities, as provided for by Legal Opinion No. 1772 mentioned above.
• Allegations relating to the Dismissal of Trade Unionists by Plantation Employers
  163. 163 It was alleged that a large number of workers were dismissed by their employers simply because of their trade union membership. The complainants gave several examples in support of their allegations.
  164. 164 At its meeting in May 1970, the Committee observed that, taken together, certain provisions of the Labour Code (in practice) enable employers-on condition that they pay the compensation prescribed by law for cases of unjustified dismissal-to dismiss any worker, even if the real reason is his trade union membership or activities.
  165. 165 In these circumstances, the Committee recommended the Governing Body to request the Government to consider taking all appropriate measures to give adequate protection to all workers against acts of anti-trade union discrimination, as provided for under Convention No. 98, which has been ratified by Costa Rica, and to request it to keep the Governing Body informed of any steps which it has taken or is planning to take to this end.
  166. 166 In reply to the latter request, the Government, in its communication dated 22 September 1970, indicates that the Legislative Assembly recently had before it a draft Bill on trade union rights " which aims at protecting from dismissal at least trade union leaders, although it would be desirable to extend the protection to all members of the country's trade unions ".
  167. 167 The Committee recommends the Governing Body to take note of the information supplied by the Government on this point and to request the Government to keep it informed of any developments in the situation.
• Allegations relating to an Attack by Government Forces on Trade Union Members in the Estrella Valley
  168. 168 The complainants allege that, in May 1969 in the Estrella valley, a group of trade unionists were attacked by government forces with tear-gas bombs when they were on their way to their employer's office to present a claim.
  169. 169 In its observations, the Government does not deny that it intervened in the dispute in the Estrella valley; it declares, however, that the strike which broke out was illegal for two different reasons: firstly, because of forcible constraint exercised by the strikers on other workers so as to prevent them from going to work even though they wished to do so, which in the Government's eyes justified its intervention; and secondly, because the participants in the strike were workers engaged in handling perishable goods and were consequently deemed to be performing a public service and hence not entitled to take strike action.,
  170. 170 At its session in May 1970, the Committee, having noted in the Government's explanation, that, by virtue of section 368 of the Labour Code, any disputes which may arise in public services between employers and employees must be referred to the labour courts for settlement, decided before making its final recommendations on this aspect of the case to recommend the Governing Body to request the Government to be good enough to state whether the procedure prescribed by law was followed before the strike broke out and, if not, why this procedure was not set in motion.
  171. 171 In its communication dated 22 September 1970, the Government indicates that the reason why the procedure provided for under section 368 of the Labour Code was not followed was that both parties chose to embark on collective bargaining. According to the Government, when the employing organisation rejected the workers' claims and the competent judge declared the attempted strike to be illegal, an atmosphere of violence resulted, on which the Ministry reported to the ILO. " The fact that the complainant trade unions failed to observe the procedure recommended in section 368 referred to above ", the Government states, " is a matter for them to explain, since at no time were they prevented from complying with it, this course being open to them at all times."
  172. 172 On the basis of the principle whereby allegations relating to the right to strike are not outside its competence in so far as they affect the exercise of trade union rights, the Committee has, in similar cases, held that, while restrictions on the right to strike in the public service or in essential services could be accepted, there should, in such cases, be adequate guarantees to safeguard the interests of the workers who are thereby deprived of an essential means of defending their occupational interests, which implies that such restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can participate at all stages.
  173. 173 In the present case, it seems that such procedures did exist and that it was the complainants who failed to take advantage of them.
  174. 174 In these circumstances, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.
  175. 175 The communication from the Government dated 22 September 1970 contains, in addition to answers to the precise points raised by the Committee and by the Governing Body which have been dealt with in preceding paragraphs, a certain amount of information of a more general nature.
  176. 176 The Government points out, firstly, that the provisions of the Constitution and of labour legislation guaranteeing the free exercise of trade union rights are backed by penal provisions, which the Government quotes, and which ensure proper respect for the rights granted, by laying down penalties for persons who violate them.
  177. 177 The Government then states that it has requested ILO technical assistance, on the one hand, to strengthen the activities of the Tripartite Committee on Freedom of Association which operates in Costa Rica, and, on the other hand, with a view to incorporating in the new Labour Code, now being drafted, clauses likely to provide an effective guarantee of freedom of association as well as others laying down penalties for its infringement.
  178. 178 The Committee recommends the Governing Body to take note of the general information supplied by the Government and to request the latter to be good enough to keep it informed of the result of the action it is taking, particularly concerning the redrafting of the Labour Code on matters of freedom of association.