Definitive Report - REPORT_NO134, November 1972

1. 29. The complaint of the Costa Rican Confederation of Democratic Workers is contained in a communication dated 12 June 1972. It was transmitted to the Government, which replied by a communication dated 31 July 1972, to which was appended a considerable quantity of documentation relating to the case.
2. 30. Costa Rica has ratified both 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. 31. In their complaint the complainants merely allege that leaders of the National Union of Employees of the Costa Rican Social Insurance Fund (UNDECA) have been arrested and dismissed because of their refusal to accept the intransigent attitude of the Minister of Labour and of the Executive Board and Management of the Social Insurance Fund. The complainants request urgent ILO intervention to examine the case.
2. 32. In its reply the Government states that in February 1971 a direct agreement was signed between the Costa Rican Social Insurance Fund and the UNDECA in which the UNDECA undertook, in exchange for benefits obtained, not to promote until February 1974 "any collective dispute of an economic and social nature". Nevertheless, in April 1972 the UNDECA filed a series of claims in which it demanded various financial improvements. Notwithstanding the undertaking that had been given, the Executive Board of the Fund agreed to examine this list of claims, although it requested a longer time limit for the negotiations than the twenty-two days demanded by the union. At the beginning of May, while the negotiations were in progress, the union threatened to launch a series of strikes, which it in fact did on 12 May 1972.
3. 33. The Government goes on to state that the management of the fund referred the matter to the labour tribunal, which declared this strike action to be illegal on the ground that the union had not exhausted the conciliation procedure prescribed by law (section 366 of the Labour Code) as well as on the ground that the employees of the Fund, like other persons employed by a public service, do not enjoy the right to strike (article 61 of the Constitution and section 368 of the Labour Code). Section 369 of the Labour Code classifies as being public services all services performed by employees of the State or its institutions, where the activities in question are not also carried on by private profit-making undertakings.
4. 34. The Government states that following on this judgement the strike was terminated and negotiations were reopened. Nevertheless, in June the union launched a further strike, which was likewise ruled to be illegal by the labour tribunal. On this second occasion the union went so far as to besiege the head office of the Fund and some of its hospital centres, endangering the health and even the lives of the patients. In consequence, the Fund was compelled to dismiss some of the workers and union leaders, since they had defaulted in their duties as employees in the hospital centres. It was this situation which prompted the request for the intervention of the police in order to safeguard order and the interests of the patients. The strike was ended and talks were resumed, but the union has already announced yet another stoppage.
5. 35. The Government concludes by stating that, since at no time was the life or freedom of any person involved in the dispute endangered, there is no cause to consider this case an urgent case in accordance with the classification established by the Committee on Freedom of Association.

B. B. The Committee's conclusions

1. 36. The Committee has established the principle that allegations relating to the right to strike are not outside its competence in so far as they concern the exercise of trade union rights. As concerns the right to strike in essential services or in the civil service, the Committee has pointed out that, where strikes are forbidden or subject to restriction in such sectors, adequate guarantees should be ensured to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests. The Committee has also pointed out that the restriction or prohibition in question should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties can take part at every stage and in which the awards are binding in all cases on both parties; these awards, once they have been made, should be fully and promptly implemented. The Committee has also expressed the view that legislation which provides for compulsory conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association.
2. 37. The Committee observes that the employees of the Costa Rican Social Insurance Fund, in their capacity as employees of a public service, do not enjoy the right to strike and that, on the contrary, any disputes in which they may be involved must compulsorily be dealt with by the labour tribunals (section 368 of the Labour Code). The Committee also observes that, according to the Government, at no time was the freedom of the persons participating in the strike movements launched by the UNDECA endangered.