Definitive Report - REPORT_NO132, 1972

1. 8. The complaint is contained in a communication dated 23 September 1971 addressed direct to the ILO by the Costa Rican Christian Workers' and Peasants' Confederation.
2. 9. The complaint was duly transmitted to the Government, which forwarded its observations thereon in a communication dated 14 January 1972 addressed direct to the Director-General.
3. 10. 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. A. The complainants' allegations

1. 11. In their communication dated 23 September 1971 the complainants state that in accordance with Act No. 4351 of 11 July 1969, which set up the Popular and Community Development Bank of Costa Rica, their Confederation (viz. the Costa Rican Christian Workers' and Peasants' Confederation) was entitled to have two representatives on the Executive Board of the said Bank. The complainants add that, in spite of the fact that the Minister of Labour had promised to support their nominations, the Council of the Government, under pressure from the Inter-American Regional Organisation of Workers (GRIT) and the American Institute for the Development of Free Trade Unionism (IADSL) and after an investigation into the private lives of the proposed candidates, decided to appoint only one representative.
2. 12. In its communication dated 14 January 1972 the Government points out that Act No. 4351 of 11 July 1969 (published in the official gazette " La Gaceta ", No. 103 of 19 July 1969) provides in its interim provision IX that within 30 days of the coming into force of the Act a provisional national Board of Directors shall be appointed and, inter alia, that the duly registered democratic workers' Confederations shall each appoint two representatives. In accordance with this provision, two members of the Costa Rican Christian Workers' and Peasants' Confederation and two members of the Costa Rican Democratic Workers' Confederation were appointed to the provisional Board of Directors of the Bank.
3. 13. Subsequently, the Government adds, the provisional Board of Directors submitted a draft bill to the Legislative Assembly with a view to extending to four years the original two-year term of office of the provisional board. The Legislative Assembly, however, did not agree to this proposal and instead promulgated Act No. 4838 of 24 August 1971 (published in the official gazette " La Gaceta " on 27 August 1971), which modified the provisions of Act No. 4351 of 11 July 1969.
4. 14. The Government explains that the new Act No. 4838 provides that the Council of the Government shall appoint four representatives of the duly registered workers' Confederations from lists of three names which each Confederation shall submit within not more than five days of the date of entry into force of the Act and that these appointments shall be made not more than ten days from the date of entry into force of the Act. The Act further provides that the provisional national Board of Directors shall cease to function two years and six months from the date of its appointment with the exception of those members appointed in accordance with the new Act.
5. 15. The Government states that the Council of the Government (i.e. the President and the Government Ministers) were empowered to appoint members from the workers' con federations but that the Act did not indicate the number of representatives which must be appointed from each of the Confederations. The Council made its selection of representatives from the lists of three names submitted to it. The purpose of the law is that the appointments should be made on the basis of the degree of representativity of the Confederations concerned. The Costa Rican Christian Workers' and Peasants' Confederation, states the Government, was not the organisation which had the greatest number of members. The Government, accordingly, rejects any allegation that it committed any infringement of trade union rights.

B. B. The Committee's conclusions

1. 16. In some previous cases, the Committee has taken the view that it was not called upon to express an opinion as to the right of a particular organisation to be invited to take part in certain bodies unless its exclusion constituted a clear case of discrimination affecting the principle of freedom of association, and that this was a matter to be determined by the Committee in the light of the facts in each given case.
2. 17. Moreover, the Committee has previously observed z that on several occasions, and especially when the draft text of the Right to Organise and Collective Bargaining Convention was being discussed, the International Labour Conference has referred to the question of the representative character of workers' and employers' organisations and has admitted to some extent the distinction sometimes made between various organisations according to the extent to which they are representative.
3. 18. In the present case, the Committee notes that provision of Act No. 4351 of 11 July 1969 whereby the complainant organisation was entitled to have two representatives on the provisional executive board of the Popular and Community Development Bank of Costa Rica has been amended by Act No. 4838 of 24 August 1971 to the effect that the Council of the Government shall nominate four representatives from the registered workers' Confederations out of a list of three names submitted by each of these organisations. By such a procedure it would appear that the Council is under no obligation to nominate an equal number of members from each of the Confederations, and, according to the complainants, only one member proposed by them was nominated by the Council. The Committee further notes the Government's explanation that the purpose of the Act is that the members of the executive body of the Bank should be selected by the Council on the basis of the degree of representativity of each of the Confederations concerned, and that the complainant organisation was not the one having the largest membership.