Report in which the committee requests to be kept informed of development - REPORT_NO302, March 1996

Allegations: Anti-trade union discrimination and acts of violence against trade unionists

• Allegations: Anti-trade union discrimination and acts of violence against trade unionists
  223. 223 The Committee examined these cases at its March 1995 meeting and submitted an interim report to the Governing Body (see 297th Report of the Committee, paras. 367 to 431, approved by the Governing Body at its 262nd meeting (March-April 1995)).
  224. 224 Since then, the Government has sent new observations in communications dated 27 and 29 March, 22 May and 22 June 1995. The Workers' Confederation Rerum Novarum (CTRN) submitted additional information on the cases in a communication dated 23 June 1995, and the Heredia Union of Workers in Agriculture, Livestock and Allied Occupations (SITAGAH) sent new allegations in a communication dated 6 July 1995. Subsequently, the Government sent further observations in two communications dated 25 September 1995.
  225. 225 Costa Rica has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), and the Workers' Representatives Convention, 1971 (No. 135).

A. Previous examination of the cases

1. 226. At its March 1995 meeting, the Committee made the following recommendations on the allegations pending (see 297th Report, para. 431):
2. Case No. 1678
3. the Committee requests the Government to keep it informed of the outcome of proceedings before the judicial authority, relating to the alleged anti-union dismissal of ten workers at the TALMANA, S.A. enterprise;
4. the Committee recommends that the Government take the necessary measures to enable the trade union leaders and members of the Corporación Peter S.A., Compañía Agropecuaria Río Jiménez S.A. and Industrias Realtex S.A. enterprises, who have been dismissed because of their legitimate trade union activities, to secure reinstatement in their posts;
5. Case No. 1695
6. the Committee urges the Government to reply to the allegations of anti-union dismissals and practices at the LACSA enterprise, to which it has not sent its observations;
7. the Committee takes note of the Government's intention to amend the legislation concerning trade union dismissal, and urges the Government to take measures to ensure that, henceforth, the trade union official Mr. Rojas Vilchez is not prevented from taking trade union leave to which he is entitled;
8. Case No. 1781
9. with regard to the allegations surrounding the dispute between banana plantation workers and the Geest Caribbean Americas Limited enterprise, the Committee notes the Government's explanations and the fact that the National Labour Inspection Directorate will submit a report on the matter in the near future. While noting the serious nature of the allegations, the Committee will postpone consideration of them pending this report and requests the Government to inform it whether a judicial inquiry has been opened into the violent accidents which took place and left a number of workers injured.
10. B. The Government's reply
11. Case No. 1678
12. 227. In its communications of March, May and June 1995, the Government states, in connection with the dismissal of ten workers from the TALMANA S.A. enterprise, that following an appeal the Constitutional Chamber stated that the dismissals were illegal and ordered that those dismissed be reinstated, while leaving them the possibility of opting for the corresponding compensation instead.
13. 228. With respect to the Committee's recommendation concerning the Corporación Peter S.A. and the Compañía Agropecuaria Río Jiménez S.A., the Government states that the Ministry of Labour and Social Security complied with the Committee's request by sending instructions to these enterprises to the effect that they remedy any problems of discrimination they might have. It was unable to do the same with Realtex S.A., since this enterprise has stopped operating in Costa Rica and has no legal representative.
14. Case No. 1695
15. 229. As regards the allegations concerning LACSA S.A. (failure to comply with the collective agreement concluded with the Occupational Association of Airline Pilots and dismissal of workers and pilots), the Government states that the administrative proceedings on the alleged failure to comply with the collective agreement are pending and that, in letters dated 11 and 18 December 1992, the Occupational Association of Airline Pilots requested the Ministry of Labour and Social Security to initiate conciliation proceedings to examine the case of those dismissed. Concerning this latter point, the Government adds that the Ministry in question convened the parties for 21 December 1992, but since the representatives of LACSA failed to turn up, the complainants (the Association of Pilots) "decided to take the matter further and appeal to the labour courts to claim enforcement of their rights".
16. 230. Furthermore, concerning an appeal for amparo (enforcement of constitutional rights) lodged by the Pilots' Association, the Constitutional Chamber dismissed this appeal, in a resolution issued in January 1993, because it considered that any discussion on whether LACSA was justified in dismissing its pilots was merely a legal matter and did not fall within its competence.
17. 231. Furthermore, the Government states that the present administration has no intention of preventing Mr. Rojas Vilchez from taking trade union leave to which he is entitled in accordance with the legislation in force. Evidence of this is that the Ministry of Public Education has granted the trade union official leave, from which he is at present benefiting, up to 28 February 1996.
18. Case No. 1781
19. 232. As regards the allegations concerning the dispute between the banana plantation workers and Geest Caribbean Americas Limited - Costa Rica branch - the Government states that in a resolution of 24 May 1995 issued by the National Labour Inspection Directorate, the complaint submitted by the Secretary-General of the Heredia Union of Workers in Agriculture, Livestock and Allied Occupations (SITAGAH) against the Geest Caribbean Americas Limited, alleging trade union persecution, was dismissed. The substance of the above-mentioned resolution is as follows:
20. Taking into account the documents contained in the file and the report compiled by the Labour Inspector, who carried out a routine inspection, it may be clearly deduced that there is not enough evidence to conclude that the Geest Caribbean Limited - Costa Rica branch - took measures to impede or put an end to trade union activities. In connection with the first complaint submitted on 20 December 1993, received at the Directorate on 21 December of the same year, the Labour Inspector requested, in a letter dated 15 April 1994, that the complainants, the SITAGAH, should provide the documents necessary to proceed with the inquiry such as, for instance, the membership lists and the request sent to the enterprise for cuts in trade union dues, the list of workers in the local committees of estates (fincas), the copy of the list of members sent to the enterprise and Ministry of Labour; none of this information was sent by the trade union organization. However on 30 June 1994 the SITAGAH alleged further dismissals of workers (covered by trade union immunity) but it did not provide the documents mentioned above. This information is vital in so far as it would provide evidence allowing to determine whether the enterprise knew that the workers belonged to the trade union and thus establish that there was in fact trade union discrimination.
21. 233. The Directorate's resolution adds that "the same problem arose in connection with the list of dismissed workers submitted by the trade union on 8 January 1994". During the proceedings, new events occurred which created a climate of unrest in the plants of Geest Caribbean - culminating in a strike; as a result of all this, various agreements were signed with the consent of the Ministry of Labour and Social Security. It is relevant to recall the Act of 26 May 1994, in which it was agreed to set up a tripartite committee, with representatives from the enterprise, the trade union and the Ministry of Labour, with a view to studying the dismissals of workers taking part in the strike and the payment of their wages. Subsequently, the trade union denounced that these dismissals were contrary to the law, although its representatives had previously agreed to them; therefore, in the Directorate's opinion these agreements are legal as they were agreed upon by the parties and upheld by the Labour Court of San José (lower level) in a ruling (No. 24 of 12 January 1995 - issued at 10.30 a.m.) which stated that:
22. The Ministry of Labour opened conciliation proceedings at the express request of the trade union ... resulting in the setting up of a tripartite committee composed of the enterprise against which an action had been brought, the trade union and the Ministry of Labour to determine the reasons for the labour unrest, which examined the case of a number of dismissals. Finally, it was agreed to pay wages to a number of workers - some in their entirety and others various amounts according to their degree of involvement ... These conciliation proceedings were held in full compliance with the law. Given that there is no overwhelming evidence that there was any type of trade union persecution in the Geest Caribbean Limited (Costa Rica branch), the complaints submitted are dismissed.
23. 234. The Government also encloses a copy of the resolution which, it states, was drawn up in accordance with the evidence presented and in full respect of the right of defence; it also adds that as the resolution was not contested by the complainants it is final.
24. 235. With regard to the request to inform whether a judicial inquiry has been opened into the violent incidents which took place and left a number of workers injured, the Government of Costa Rica indicates that the Mayor of Sarapiqui has been invested with the authority to carry out inquiries into Case No. 194-4 concerning allegations of illegal organization, serious injuries, instigation to violence, obstruction of public services, threats, serious resistance, the use of explosives and acts of terrorism, which have resulted in charges being brought against Juan Rocha Mora, William Barahona Quesada and others: Guillermo González-Solís and others appear to have been victims of these actions (the Government encloses copies of these judicial complaints).
25. C. Additional information and new allegations from the complainants
26. Case No. 1695
27. 236. The Workers' Confederation Rerum Novarum (CTRN) provides, in the enclosures to its communication dated 23 June 1995, information on the development of the collective dispute in the LACSA enterprise (Case No. 1695). According to the CTRN, justice has been denied to the workers in LACSA involved in this dispute which began in September 1992. Its actions have resulted in the fact that to date the pilots' trade union has been totally disbanded, stripped of its funds and had all possibilities of collective bargaining and the right to exercise its trade union rights in the LACSA enterprise taken away. Furthermore, the Ministry of Labour has in no way resolved the complaints of violation of the collective agreement, the establishment of unfair practices, the issue of access to collective bargaining, trade union persecution and the dismissal of the trade union leadership. Out of a total of 64 workers dismissed in October 1992, only one pilot remains in the enterprise.
28. Case No. 1781
29. 237. The Heredia Union of Workers in Agriculture, Livestock and Allied Occupations (SITAGAH) alleges that in the criminal proceedings initiated on account of the violent actions which occurred during the dispute in Geest Caribbean Limited (Case No. 1781), those being tried do not include members of the police force and the private security enterprise which fired against the workers; however, trade union officials (especially Juan Rocha Mora and William Barahona Quesada) and workers are being charged with illegal organization - with no account being taken of the connection between this complaint and the strike of April and May 1994. The SITAGAH refers to a report from the human rights organization Amnesty International which states that it has received evidence that 36 people (of which 16 are workers) were injured in clashes between the police and workers on banana plantations, resulting in the imprisonment of 40 workers who were later charged with illegal organization; according to the SITAGAH these events occurred during a peaceful demonstration of the workers.
30. 238. Concerning the resolution of the National Labour Inspection Directorate of 24 May 1995, the SITAGAH states that this resolution did not examine in depth the complaints lodged and tried to conceal the actual facts - which were verified from the questioning to which the workers were subjected, who gave overwhelming evidence of anti-trade union persecution. According to the SITAGAH, it is strange that several days after this resolution, the Ministry of Labour suspended all proceedings to examine complaints of trade union persecution on the grounds that a proceeding for unconstitutionality had been before the Constitutional Chamber of the Supreme Court of Justice since 25 November 1992; indeed, on the basis of this criterion, the resolution of the Directorate should also have been suspended. The SITAGAH states that, on 17 July 1995, it lodged an appeal for enforcement of constitutional rights (amparo) with the Constitutional Chamber against the resolution of 24 May 1995.
31. D. New reply from the Government
32. Case No. 1781
33. 239. In two communications dated 25 September 1995, the Government reiterates its former statements in connection with the collective dispute between Geest Caribbean Limited and the SITAGAH (Case No. 1781) and stresses that the resolution issued by the National Labour Inspection Directorate of 24 May 1995, concerning complaints of trade union persecution, has been drawn up in accordance with the contents of the evidence presented and in full respect of the rights of defence; furthermore, it was not contested by the trade union before the national authorities provided for in the legislation. The Government also points out the lack of interest demonstrated by the SITAGAH trade union during the administrative proceedings which preceded the above-mentioned resolution. Referring to the complainants' statement that those accused of acts of violence during the collective dispute in question did not include members of the police force or the enterprise, the Government points out that if the trade union officials believe that their rights have been infringed they are fully entitled to initiate criminal proceedings. Concerning the complainants' allegation that the Ministry of Labour suspended all proceedings to examine complaints of trade union persecution because of a proceeding for unconstitutionality dating from 1992, the Government states that the National Labour Inspection Directorate did commit an error but soon realized this and immediately ordered that matters suspended should resume their normal course. All this took place in a context of good faith and without, to date, causing any harm to the parties involved in the complaints in question; be that as it may, the administrative proceedings concerning the allegation of trade union persecution against the SITAGAH (object of this complaint) was resolved before the error committed to which the complainants refer.
34. Case No. 1695
35. 240. As regards the collective dispute in the LACSA enterprise (Case No. 1695), the Government points out that if there is a delay in proceeding with the complaints submitted by the representative of the Association of Airline Pilots, this is due to the fact that those concerned lodged administrative and/or judicial appeals at the same time. These appeals resulted in a stay of the proceedings to examine the complaints for alleged violations of labour legislation pending. In this respect, the Government points out that the representative of the Association lodged an appeal for enforcement of constitutional rights (amparo) with the Constitutional Chamber (which is possible when it is considered that there has been an infringement of constitutional rights) against the Ministry of Labour and Social Affairs of the previous administration. Similarly, it should be pointed out that the National Labour Inspection Directorate acted within the statutory limits both in the case of the administrative proceedings for violation of the collective agreement as well as in the case of the complaint of trade union persecution. In this respect, it should also be pointed out that the delays strongly alleged in one way or another by the complainant are beyond the control of this board and that it is the parties to the dispute, i.e. LACSA and the Occupational Association of Airline Pilots (APPA), which, by their numerous procedures of all kinds (points of law, petitions for repeal and review, appeals), in addition to the appeal for amparo lodged with the Constitutional Chamber of the Supreme Court of Justice, interfered with the normal course of the proceedings. (When the Constitutional Chamber admits an appeal for enforcement of constitutional rights (amparo), it starts by ordering the suspension of proceedings linked to the subject of the action; the final decision comes much later, which obviously interferes with the action of the National Labour Inspection Directorate.)
36. 241. As regards the stage reached in the matter concerning the infringement of the collective agreement, the Government points out that the lawyers of LACSA have lodged an appeal against resolution No. 275 issued by the National Labour Inspection Directorate of 15 February 1995. Consequently, this was brought before the Minister of Labour and Social Security who, under resolution No. 304-95 of 1 September 1995, dismissed the appeal in question. As regards the second matter (opposition of the Occupational Association of Airline Pilots (APPA) which refuses to accept that the collective agreement be considered null and void), the Ministry of Labour recently decided, under Ruling No. 303-95 of 22 August 1995, to dismiss the motion for dismissal of the proceedings and decisions submitted by LACSA against the steps taken by the APPA and against the resolutions and notifications issued by the Ministry in relation to the appeal launched by the Deputy-Director of Public Prosecution and special representative of the APPA against the resolution DRT-771-94 of 20 December 1994 of the Department of Labour Relations of the Ministry of Labour. It should be added that because of the administrative proceedings in question, this appeal has had to remain pending.
37. 242. After pointing out the various actions and proceedings instituted, the Government refers to the ruling handed by the Constitutional Chamber in relation to the dismissals by the LACSA and their alleged unlawfulness - accusations rejected by this higher judicial authority. Furthermore, the court had already reached a decision on this matter of persecution and discrimination, as well as on the "disguised" dismissals of the complainant and other pilots on 28 January 1994 under Decision No. 0609-94. In this respect the Chamber ruled that: "... According to the statement made under oath by the defendant enterprise before the Constitutional Chamber, there were no feigned actions and the dismissals occurred because those concerned failed to turn up for programmed flights which, in the Constitutional Chamber's opinion, were not tantamount to an arbitrary action or persecution. Furthermore, if it was felt that the dismissals were unjustified, the complaints could always turn to the Labour Court to clarify the issue because constitutional jurisdiction can only rule on whether or not there has been a violation of fundamental rights and there is no situation similar to that concerning standards on the payroll (article 9.1 of the collective agreement), an issue which also does not come under constitutional jurisdiction. It is clear from the records that the Constitutional Chamber rejected the claims of the complainant and its colleagues concerning the actions taken by the defendant enterprise in the dismissals and their unlawfulness. This being the case, and given that there are no grounds to justify changing this opinion, the appeal is dismissed ...".
38. 243. Furthermore, the Government points out that the "complaint for violation of the collective agreement submitted by the Occupational Association of Airline Pilots (APPA) against the Lineas Aéreas Costarricenses, S.A. (LACSA)" was brought to the attention of the National Labour Inspection Directorate pursuant to the inquiry carried out on this matter and in accordance with the law.
39. 244. Finally, the Government requests that all the complaints of violation of freedom of association in Costa Rica (Cases Nos. 1678, 1695 and 1781) be dismissed.

E. The Committee's conclusions

• Case No. 1678
  245. 245 The Committee notes with interest that the Constitutional Chamber ruled that the dismissals of ten workers from the TALMANA, S.A. enterprise were illegal and ordered the reinstatement of those dismissed in their posts, leaving them however the possibility of opting for the corresponding compensation if they so wished. The Committee also notes that in compliance with its previous recommendations concerning the Corporación Peter S.A. and the Compañía Agropecuaria Río Jiménez S.A., the Ministry of Labour and Social Security sent instructions to these enterprises to the effect that they should remedy any problems of discrimination they might have. The Committee hopes that its recommendations will be respected. The Committee notes that it was unable to do the same in the Realtex enterprise because this enterprise has ceased operating in Costa Rica. The Committee notes that the matter concerning the granting of trade union leave to Mr. Rojas Vilchez has been satisfactory resolved.
• Case No. 1695
  246. 246 As regards the allegations concerning the Líneas Aéreas Costarricenses S.A. (LACSA) enterprise, the Committee wishes to recall the exact content of the allegations made by one of the complainant organizations which follow here below (see 297th Report, para. 374):
• The CTRN also states in its allegations that in September 1992 the Líneas Aéreas Costarricenses S.A. (LACSA) enterprise infringed the collective agreement concluded with the Occupational Association of Air Pilots (APPA) by demanding that pilots should fly longer hours than had been agreed. When they refused, LACSA suspended flights and although the pilots had not called a strike, LACSA informed the Alajuela civil court that there was no crew because the pilots had gone on strike, and requested that the court declare the strike illegal, which it did. The upshot was that LACSA dismissed the so-called strikers and hired foreign pilots; furthermore, through the Aeroser enterprise it subcontracted the pilots who had been dismissed, thus negating the collective agreement signed with APPA and hence the benefits it provided. The APPA lodged an appeal for enforcement of constitutional rights (amparo) with the Constitutional Chamber.
  247. 247 In this respect, the Committee notes the Government's statements and asks it to keep it informed on the outcome of the appeal lodged by the representative of the Pilots' Association against the administrative resolution DRT-771-94 and the decision taken by the National Labour Inspection Board in relation to the complaint of violation of the collective agreement submitted by the Pilots' Association against LACSA.
  248. 248 As regards the dismissal of 63 pilots from LACSA, the Committee notes that according to the Constitutional Chamber (Decision No. 0609-94), "the dismissals are merely the consequence of those concerned failing to turn up for programmed flights, which are not tantamount to an arbitrary action or persecution". On this point, the Committee feels bound to point out that sections 368 and 369 of the Labour Code do not authorize strikes in the public services, amongst which "workers in air transport enterprises" are included. The Committee concludes that the refusal of the pilots of LACSA to turn up for programmed flights occurred in a context in which the legal exercise of the right to strike was impossible. In these circumstances, the Committee: (1) draws the Government's attention to the fact that the right to strike may be restricted or prohibited only for public servants exercising authority in the name of the State or in essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 536); and (2) in general, transport services do not constitute essential services in the strict sense of the term (see Digest, op. cit., para. 545). Consequently, the Committee requests the Government to take measures to ensure that the 63 pilots from LACSA dismissed may be reinstated in their jobs if they so wish. The Committee also requests the Government to take measures to amend the legislation so that the right to strike may be guaranteed in the air transport sector and in general in all services which are not essential services in the strict sense of the term.
  249. 249 The Committee concludes from the information submitted that the legislative provisions do not, in all the cases, guarantee adequate protection against acts of anti-union discrimination in the sense of Convention No. 98 and refers this question to the Committee of Experts on the Application of Conventions and Recommendations.
• Case No. 1781
  250. 250 As regards the collective dispute in Geest Caribbean Limited, the Committee wishes to summarize the allegations and the Government's reply contained in the corresponding report submitted to the March 1995 meeting of the Committee (see 297th Report, paras. 386 to 396 and 409 to 420). In this respect, the complainants alleged many dismissals of trade unionists and workers on account of their strike action or trade union membership, the enterprise's negotiations with "workers' standing committees" (not belonging to the trade union) affiliated to solidarist organizations and the use of private guards to deny trade union officials access to plantations and prevent them from meeting workers. In its reply, the Government stated that the Ministry of Labour had taken many steps to settle the dispute in question and had succeeded in bringing the parties together; as a result they signed, through the mediation of the Minister of Labour, an agreement to put an end to the dispute; subsequently, the trade union asked the Ministry of Labour to review the procedures for examining dismissals (as provided for in item 3 of the document dated 16 May 1994). The Government described the complaints as rash and stressed that they had been submitted to the ILO after an agreement settling the dispute had been signed. Finally, the Government stated that the matters concerned with trade union persecution were being examined by the National Labour Inspection Directorate which would submit a report.
  251. 251 The Committee notes the Government's recent statements on the resolution issued by the National Labour Inspection Directorate on 24 May 1995 (enclosed as an annex), which declared unfounded the complaints of alleged trade union persecution on the grounds that there was a lack of evidence because the trade union failed to produce the necessary documents - and taking into account the agreement between the parties of 16 May 1994. The Committee nevertheless notes that the SITAGAH states that the complaints had not been looked into by the labour inspectorate and that the resolution tried to obscure the truth, which would have been easy to ascertain from the interviews held with the workers, whilst in its latest communications the Government stresses that the trade union fully enjoyed the right of defence in the administrative proceedings but that it had shown no interest and did not defend itself.
  252. 252 The Committee also notes that after the resolution of 24 May 1995, the trade union SITAGAH lodged an appeal with the Constitutional Chamber.
  253. 253 In these circumstances, the Committee insists on the need that the agreement of 16 May 1994, signed by the parties with the mediation of the Minister of Labour, be fully applied - including clause 3 concerning the dismissals. Similarly, given the reservations of the SITAGAH as to the objectivity of the resolution issued by the National Labour Inspection Directorate of 24 May 1995, and the fact that the Government mentions the lack of interest shown by the trade union during the proceedings and the failure to defend its interests, the Committee is not at present in a position to make a pronouncement in this case. In these circumstances, and in view of the complainants' reservations, the Committee requests the Government to ensure that trade union rights are fully respected in Geest Caribbean Limited, in particular the protection against anti-union dismissals, the right of trade union officials to enter into contact with plantation workers with the respect due for property rights and the guarantee that the "standing workers' committees" (which do not belong to the trade union) do not undermine the role of the representative trade unions in the enterprise. The Committee recalls that "direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, might be detrimental to the principle that negotiations between employers and organizations of workers should be encouraged and promoted" (see Digest, op. cit., para. 785). The Committee also requests the Government to keep it informed on the steps it takes in this respect and of the outcome of the appeal lodged with the Constitutional Chamber.
  254. 254 Finally, concerning the acts of violence which occurred in May 1994 during the collective dispute in Geest Caribbean Limited (clashes between the workers and police), the Committee notes that the complainants consider these incidents to have been the repression of a peaceful demonstration, whereas according to the judicial complaints provided by the Government, free access to the highway was blocked and the security forces were acting in accordance with a court order. Similarly, the judicial complaints in question provided by the Government were submitted on grounds of attempting to cause an explosion, acts of terrorism and threats, etc. The Committee regrets that the collective dispute degenerated into acts of violence and requests the Government to keep it informed of developments regarding proceedings under way and to also send it the text of the ruling handed down. The Committee insists that an investigation be undertaken on the allegations of violent acts which were to have been committed as much by the workers as by the police.