Definitive Report - REPORT_NO241, November 1985

1. 230. The World Confederation of Organisations of the Teaching Profession submitted a complaint of infringement of trade union rights in Costa Rica in communications dated 16 and 17 October l984. The Government replied on the matter in a letter dated 9 September l985.
2. 231. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, l948 (No.087), and the Right to Organise and Collective Bargaining Convention, l949 (No.098).

A. Allegations made by the complainant

1. 232. The World Confederation of Organisations of the Teaching Profession alleges that the premises of a member organisation, the National Association of Teachers, were searched and that the members of the Association were prosecuted in breach of an agreement signed by the Government and the unions of teachers represented by the Teachers' Front.
2. 233. The Confederation explains that on 27 July l984 an agreement was signed between the above-mentioned parties putting an end to the strike organised by the Teachers' Front. This agreement made provision for negotiations on a list of claims in support of which the teachers had gone on strike. The list related to salaries, the cost of school transport, the prices of certain goods and services (electricity, telephones, fuel, drinking water, transport) and the adjustment of increases in the salaries of public servants.Section 8 of the agreement provided that the Government undertook to take no measure of reprisal against workers of the Ministry of National Education, or against teacher-leaders or students because of the activities of the Teachers' Front. Lastly, in accordance with the agreement, the Government committed itself to negotiating with the Teachers' Front or alternatively to taking the measures provided for in the said agreement.
3. 234. However, according to the complainant Confederation, the premises of the National Association of Teachers in the town of Cartago were searched, documents were removed by the judicial authorities, and subsequently 800 teachers were taken to court for having - according to the National Association of Teachers - claimed improvements in social conditions and increases in salaries which the Government had been owing them for over two years.

B. The Government's reply

1. 235. In respect of the searching of trade union premises and the court action taken against a number of unionised teachers, the Government replies that the executive authorities were not involved in these activities. They were carried out by the Office of the State Prosecutor, coming under the judicial authorities and therefore totally independent of the executive authorities.
2. 236. The Government explains that in Costa Rica strikes in the public sector and in public education, which is considered to be a high priority public service, are illegal since they infringe article 78 of the Constitution which provides for the right to education, which is compulsory. Furthermore, the Government states, book II, title XV of the Penal Code (section 333) provides that an official or public servant who abandons his post without having legally terminated his functions, to the detriment of his service, shall be liable to a fine of 20 to 70 days' pay. Likewise, section 334, dealing with incitement to a collective abandonment of work in the public service, provides that any person inciting public servants or employees in the public service to abandon their work shall be liable to imprisonment of six months to two years and to a fine of 70 to 120 days' pay. Lastly, article 61 of the Constitution recognises the right to strike except in the case of workers in the public service.
3. 237. The Government maintains that the provisions in question are designed to ensure the normal running of public services for the population since, in its view, a strike in these services would undermine the very existence of the State.
4. 238. With its reply the Government encloses the text of a letter sent to the Ministry of Labour by the Head of the State Prosecutor's Office, stating that the Office in question comes under the judicial authorities and acts in complete independence as regards penal action. Consequently, the executive authorities played no part whatsoever in the proceedings taken against the teachers who took part in a strike that had been declared illegal. The letter admits that a number of trade union premises were searched, with a legal warrant, at the request of a representative of the State Prosecutor's Office since the law was looking for written proof of the connection between the trade union and the offence covered by article 333 of the Penal Code. The searches were carried out in accordance with the provisions of the Code of Penal Procedure and the trade union representatives in question have so far not proved that any administrative irregularities or abuse of power by the authorities occurred. The letter also refers to the statements made by the Government concerning the illegal nature of the strike in the public services, and points out that article 333 of the Penal Code, in respect of the collective abandonment of work by public servants or employees, causing prejudice to their service, is similar to article 330 of the Italian Penal Code.
5. 239. The Government adds that the examining magistrate of Puntarenas, who dealt with the initial stages of the case in November l984, ruled that the case should be withdrawn and subsequently, and as an exceptional measure, adjourned the proceedings for one year. Furthermore, the examining magistrate of Cartago, who was also seized of the affair, likewise ruled that the case be dismissed but the State Prosecutor's Office appealed against this ruling and won its appeal before the Higher Penal Court (second chamber). However, the Government goes on, the judge of Cartago, who once again judged the substance of the case, acquitted the teachers on the grounds that the stoppage of their classes caused no prejudice to the teaching system and that, although the strike had been declared illegal by the Higher Civil Court, a large nummber of pupils had stayed away from school. The Government includes copies of the above-mentioned court rulings in its reply.
6. 240. Regarding the conversations with the Teachers' Front, the Government agrees that these did not take place but explains that this was because of divergencies within the organisation itself. It adds that it reached agreements in February and July l985 with the National Association of Teachers and includes in its reply a copy of the said agreements relating to increases in the salaries of public servants and the setting up of a joint committee to determine the increase in the number of articles to be added to the "housewife's basket".
7. 241. Furthermore, the Government furnishes the text of a Decree dated 20 June l985 to revise the said "housewife's basket", to which 14 articles have been added as compared with l984 in compliance with the agreement of 19 February 1985 between the Government and representatives of the National Association of Teachers. The Government also forwards the text of another agreement whereby the manual describing classes and teaching jobs, drawn up by the General Directorate of the Civil Service in agreement with the union, is to be submitted to the Chairman and General Secretary of the National Association of Teachers; the manual is to be included in the draft budget for l986 as soon as its financial implications have been studied.
8. 242. In conclusion, the Government considers that, contrary to what the complainants alleged, it has acted responsibly in this case vis-à-vis the teachers of Costa Rica.

C. The Committee's conclusions

1. 243. The present case relates to reprisals said to have been taken against unionised teachers following a strike they had called to secure acceptance of claims of an essentially economic and occupational nature. The trade unionists in question were prosecuted under Costa Rican law for having taken part in a strike and the premises of their trade union were searched to discover the link between the trade union and the strike. The Government does not deny the facts, but explains that in accordance with Costa Rican law, teachers are public sector employees who do not enjoy the right to strike. Consequently the strike was declared illegal by the judicial authorities and, on the orders of the said judicial authorities, the trade union premises were searched and the teachers prosecuted. However, they were acquitted by the courts. The Government further maintains that agreements were reached with the persons concerned to bring this labour dispute to an end.
2. 244. The Committee notes with interest that, according to the Government, the trade unionists who had been prosecuted were acquitted and that agreements were reached with the National Association of Teachers to bring the dispute to an end.
3. 245. Nevertheless the Committee is obliged to draw the Government's attention to the importance it has always attached to the right to strike as a legitimate means of defending the economic and social interests of workers and their organisations. (See, in particular, Fourth Report, Case No. 5 (India), para. 27.)
4. 246. Although the Committee has recognised the principle that there may be restrictions on the right to strike, or even that strikes may be prohibited in the public service or in essential services (whether public, semi-public or private), it has frequently stated that this principle would become meaningless if the legislation defined the public service or essential services too broadly. Consequently the Committee, like the Committee of Experts on the Application of Conventions and Recommendations, considers that any prohibition or restriction should be confined to public servants acting in their capacity as agents of the public authority or to essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population. (See 230th Report, Case No. 1173, (Canada/British Columbia), para. 577, and Case No. 1225 (Brazil), para. 668.) The Committee considers that the teachers do not come under this category. (See, for example, 221st Report, Case No. 1097 (Poland), para. 84; 226th Report, Case No. 1164 (Honduras), para. 343; and 230th Report, Case No. 1173 (Canada/British Columbia), para. 577, already cited.)
5. 247. The Committee therefore invites the Government to re-examine its legislation and, in particular, the provisions of the Labour Code (article 369 (a)) and of the Penal Code (sections 333 and 334) so that the list of activities in which strikes are prohibited is confined to the public service and to essential services in the strict sense of the term.