Report in which the committee requests to be kept informed of development - REPORT_NO300, November 1995

1. 130. The complaint in this case is contained in a communication from the Latin American Central of Workers (CLAT) dated 2 June 1994. The Government sent its observations in communications dated 7 October 1994 and 17 May 1995.
2. 131. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 132. In its communication of 2 June 1994, the Latin American Central of Workers (CLAT) alleges that on 12 May 1994 the Trade Union of Construction, Metallurgical and Related Workers (SICMA) was set up in the SARET Group of Costa Rica S.A. enterprise, in the free zone of Alajuela, and that between 13 and 16 of the same month 18 workers were dismissed, including the members of the executive board of the trade union, on grounds of serious misconduct. The complainant allegation states that the Ministry of Labour was informed immediately, but that the workers have not been reinstated in their workplaces.

B. The Government's reply

1. 133. In its communications of 7 October 1994 and 17 May 1995, the Government states in connection with the allegations that in accordance with the Organic Law of the Ministry of Labour and Social Security No. 1860 of 21 April 1965, its amendments and Reorganization and Rationalization Regulations, Executive Decree No. 1508-TBS of 16 February 1971, conciliation and administrative mediation measures were immediately taken as a matter of priority. The Government adds that the institutional objective of such administrative action was to achieve a solution to the dispute through dialogue and understanding by the parties, with account being taken of the Government's sense of deep respect for the right to freedom of association as set forth in article 60 of the Political Constitution, Conventions Nos. 87 and 98 and the Labour Code.
2. 134. The Government lists the following actions which the Ministry of Labour and Social Security took in conformity with legal procedures. On 13 May 1994: request for intervention addressed to the Department of Labour Relations by a group of workers in the SARET enterprise of Costa Rica, for the purpose of convening officials of this enterprise following the dismissal of the said workers, supposedly for holding meetings on the setting up of a trade union organization. On the same date, the Ministry of Labour and Social Security fixed the date of the conciliation hearing for 16 May 1994; on 16 May 1994, in the presence of the workers concerned, as well as trade union representatives and the legal adviser of the enterprise, and following the latter's statement that he was willing to meet again with the workers, with the mediation of the Ministry, the parties agreed to hold a new meeting on 19 May. On 19 May 1994, the employer's representative did not turn up at the agreed meeting, and for this reason the workers requested the Office of Labour Affairs to make a complaint to the General Labour Inspectorate in respect of trade union persecution against several workers who were organizing the establishment of a trade union, and their dismissal. These workers reserved the right to bring the matter before the competent courts. On 23 May 1994, the Directorate of Labour Affairs informed the SARET, S.A. enterprise of its concern at the attitude adopted by its legal adviser towards commitments entered into. The same note stated that the parties were convened to a further meeting on 26 May 1994. In addition to these initiatives, on 23 May 1994 the General Directorate of Labour Affairs, in response to an express request by the workers concerned, formally requested the General Directorate of Labour Inspection of the Ministry of Labour and Social Security to carry out an inquiry into the matter of trade union persecution; on 26 May 1994, the representatives of the workers - Movement of Costa Rican Workers - the workers concerned and the representative of the enterprise met following the convocation from the Office of Labour Affairs. The employer's representative refuted that there had been trade union persecution and refused to reinstate the dismissed workers. Given the impossibility of achieving any extra-judicial settlement, the workers rejected the employer's position and, for the purposes of exhausting the administrative procedure, recorded in a document dated 26 May 1994 that they would carry out "all the legal and constitutional procedures on behalf of the workers' right to free organization". In the institutional context of Costa Rica, such constitutional and legal acts are referred to the courts of justice as the only state power with the authority for the final settlement of such disputes, whether individual or collective, on matters of law or interests. In this particular case there is no record in the Ministry of Labour of any legal action taken by the workers, as required by the legal system.
3. 135. As regards the ministerial inquiry into the complaint of trade union persecution, the Government states that on 3 June 1994, following an express request from the Director of Labour Affairs for an investigation into trade union persecution in the said enterprise, the National Directorate of Labour Inspection issued a resolution instructing the labour inspector of the province of Alajuela to carry out the said inquiry and to deliver a report as soon as possible. The parties were informed that an inquiry had been initiated and were granted a period of ten working days to produce the necessary evidence. On 20 June 1994 a request was made to the Deputy Secretary of the Trade Union of Construction, Metallurgical and Related Workers (SICMA) to give the exact address at which the workers who had been the object of alleged trade union persecution could be located. On 24 June 1994 a group of 18 workers signed a document containing the reasons and evidence substantiating the complaint which had been made. On 6 July 1994, the inspector responsible for the inquiry ordered the employer to produce documents concerning the complaint within a period of eight days. On 11 July 1994, the employer's representative responded to the above-mentioned order by denying the existence of the trade union and producing in evidence certified photocopies from the Department of Social Organizations of the Ministry of Labour and Social Security. Under Act No. 7360, of 4 November 1993, section 367 of which deals with trade union protection, whenever an organization of this nature is set up or is in the process of being set up, the workers who are members of the said trade union must notify the Department of Social Organizations of the Ministry of Labour and Social Security and the employer of their intention to set up a trade union, along with the names and status of those who in their opinion should benefit from protection against dismissal. On 3 August 1994, the inspector carrying out the inquiry requested from the General Secretary of SICMA, documentation on the establishment of the organization and the number and names of its members and notification, if any, of the existence of the trade union. On 6 September 1994, the said inspector received a communication from the representative of the enterprise which rejected all the terms of the complaint. On 9 September 1994, the inspector requested the suspension of the inquiry until the organization in question had provided the information requested on 20 June and 3 August. On 22 September 1994, the Directorate issued a resolution in which it called upon the complainant organization to furnish the information requested on 20 June and 3 August, and informed the inspector that the inquiry should continue and that his report should be delivered as soon as possible. The Government states that it is clear from the above that it had complied with its obligation of guaranteeing full freedom of association, as established in the Political Constitution, international Conventions, the Labour Code, its amendments and other related laws. The objective of all the measures taken by the administrative authorities was to protect the exercise of the right to organize by workers against the alleged acts of interference and all these measures comply with the principle of legality which governs all acts by the public administration.
4. 136. The Government appends to its reply the final report of the National Directorate of Labour Inspection, dated 10 May 1995, which shows that once the labour inspector was appointed to carry out the inquiry, "compulsory notification was given to the parties to present evidence relating to the complaint in question within ten working days"; "that despite the fact that the above-mentioned resolution was duly notified to the parties concerned, the necessary evidence required in this kind of inquiry was not presented"; that the labour inspector stated that "without the information requested from the trade union organization, it is impossible to carry out the inquiry which has been ordered"; and that finally, at the request of the labour inspector, it was decided "to close the inquiry into allegations of trade union persecution in the enterprise known as the SARET Group of Costa Rica, S.A.". In the same way the voluminous documentation on the administrative procedure carried out, which the Government appends to its reply, contains a communication from the trade union, dated 3 January 1995, addressed to the National Directorate of Labour Inspection which states the following:
   • We were informed by Labour Inspector Rodriguez that he wanted to interview each and every person who had been dismissed, which we believed was correct, although it raised an objective problem, namely that each of us has to earn his living to support our families, and many of us have had to go to different parts of the country to do so, which makes it difficult to locate all our colleagues. Thus we decided to ask those colleagues with whom we had established contact to go to Inspector Rodriguez's office, but they were neither received nor interviewed by Inspector Rodriguez, which was undoubtedly prejudicial to the valuable information which these colleagues might have been able to give the inspector.
   • Thus, although it is true that our colleagues were not interviewed, this was not due to any negligence or lack of interest, but to the material impossibility of locating persons who as a result of their compulsory dismissal have had to travel to other parts of the country to earn their living.
5. 137. Finally, the Government also includes amongst other documents the constitution of the Trade Union of Construction, Metallurgical and Related Workers (SICMA), its bylaws and a communication from the Department of Social Organizations addressed to the trade union concerned on 3 June 1994 on the subject of its registration.

C. The Committee's conclusions

1. 138. The Committee observes that the allegations made in this case refer to the dismissal of 18 workers from the SARET Group of Costa Rica S.A. enterprise, located in the free trade zone of Alajuela, for having established the Trade Union of Construction, Metallurgical and Related Workers (SICMA), including the members of the executive board of the trade union organization.
2. 139. The Committee notes that the Government states that: (1) it took immediate and urgent steps for conciliation and administrative mediation and that the institutional objective of this administrative action was to achieve dialogue and understanding by the parties with a view to settling their dispute; (2) the National Directorate of Labour Inspection carried out an inquiry into the complaint of trade union persecution and that it was finally decided to close the case since the parties did not produce the necessary evidence for the inquiry to be completed; (3) the enterprise denies having been informed of the existence of a trade union in the enterprise.
3. 140. Furthermore, the Committee observes that the Government encloses the following with its reply: (i) a communication from the trade union, dated 3 January 1995, addressed to the National Directorate of Labour Inspection in which it states that although there were some difficulties in locating the dismissed workers during the administrative inquiry procedure because they had gone to different parts of the country following their dismissal, the workers who had presented themselves were not received or interviewed; and (ii) a communication from the Department of Social Organizations, dated 3 June 1994, addressed to the Trade Union of Construction, Metallurgical and Related Workers (SICMA) on the procedure for the registration of the trade union (the trade union was set up on 12 May; the dismissals occurred between 13 and 16 May 1994).
4. 141. In this respect, although it notes that the Government made repeated efforts for the parties to reach an agreement to settle the dispute and that an administrative inquiry was carried out into the alleged acts, the Committee can only observe and deplore the extremely long period of time necessary (from June 1994 to May 1995) for the carrying out of an inquiry which furthermore was finally closed because of a lack of evidence and information, according to the labour inspector. In the Committee's view, the fact that the dismissals of the trade union officials and trade unionists were made just two to five days after the setting up of their trade union and the fact that notwithstanding the statement by the enterprise in the free trade zone that it was unaware of the existence of the trade union the Government encloses in its reply a communication from the Department of Social Organizations which shows that the registration of the trade union was being processed just before the time of the dismissals, as well as the mass nature of the latter, are all clear indications of the anti-union nature of the dismissals. In these circumstances, the Committee requests the Government to take rapidly the necessary measures to enable the workers dismissed as a result of the exercise of their legitimate trade union activities to be reinstated in their jobs in the said enterprise in the free trade zone of Alajuela. The Committee requests the Government to keep it informed of the measures taken in this respect.
5. 142. Furthermore, the Committee draws the attention of the Government to the fact that "the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association" (see 281st Report, Case No. 1510 (Paraguay), para. 94) and that "an excessive delay in processing cases of anti-trade union discrimination is tantamount to a denial of due process" (see 294th Report, Case No. 1719 (Nicaragua), para. 672). The Committee therefore requests the Government to take measures to ensure that whenever complaints are made of violations of trade union rights, workers in enterprises in free trade zones, as well as elsewhere, benefit from speedy inquiry procedures with a view to providing effective protection. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.