Definitive Report - REPORT_NO305, November 1996

1. 183. The complaint in this case is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 18 April 1996. The Government sent its observations in communications dated 1 August and 11 September 1996.
2. 184. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers Representatives Convention, 1971 (No. 135).

A. The complainant's allegations

1. 185. In its communication of 18 April 1996, the International Confederation of Free Trade Unions (ICFTU) expressed deep concern that trade unions in the private sector are in a sensitive and difficult situation, as their members have been the target of a policy of reprisals on the part of employers, aimed at destroying the trade union movement in the private sector.
2. 186. The ICFTU states that on 26 November 1995, the members of the Association of Workers of the Fertilizer Sector (ATFE) started a strike at Fertilizantes de Centroamérica SA (FERTICA), a company located in Puntarenas which manufactures fertilizers and has recently been privatized. The strike was prompted by FERTICA's anti-union attitude: it had violated the collective agreement and refused to recognize the ATFE, replacing it with a local solidarist association which was under its control, and dismissed the members and officers of the ATFE. The ICFTU also alleges unfair working practices by FERTICA, including the hiring of new workers at a lower wage and on less favourable health and safety conditions, and the imposition of an excessively heavy workload. These violations of the law and workers rights were duly noted by Ministry of Labour inspectors who were called in specially to investigate the case. But despite the inspectors' report, nothing will be achieved in the short term since legal proceedings are notoriously slow in the Costa Rican legal system, which means that the workers and the organizations which represent them are entirely without protection (the ICFTU attaches the inspectors' report).
3. 187. The ICFTU also alleges that a riot squad was sent to break up a peaceful demonstration that the workers had been staging outside FERTICA premises since 11 September 1995.
4. 188. In conclusion, the ICFTU states that FERTICA's refusal to negotiate with the union and its use of legal subterfuge to prevent the dispute from being settled, together with the complicitous and tolerant attitude of the government authorities, are a foretaste of what awaits trade union organizations in public enterprises destined for privatization.

B. The Government's reply

1. 189. In its communications of 1 August and 11 September 1996, the Government states that, in 1995, FERTICA underwent a process of change and reorganization as a result of privatization. The restructuring of its manufacturing sector caused a labour dispute and the Ministry of Labour and Social Security was called in in an attempt to restore calm and initiate dialogue. Notwithstanding the national legislation, in keeping with the ILO Conventions on freedom of association ratified by Costa Rica (i.e. Conventions Nos. 87, 98 and 135), bans any acts or omissions which tend to avoid, restrict, constrain or prevent the free exercise of the collective rights of workers, their unions or associations of workers.
2. 190. With regard to the alleged anti-union dismissal by FERTICA of several workers' representatives, and its anti-union acts and violation of the collective agreement, the Government states that the Ministry of Labour and Social Security has been keeping matters under close examination in order to remedy these breaches of the law, and has started the necessary legal proceedings in order to maintain the rule of law and ensure that the rules of due process are applied throughout, including in any interlocutory actions or appeals brought by the parties - which are often used as legal tools for delaying a final decision.
3. 191. In August, September and October of 1995, ATFE officials submitted complaints to the National Labour Inspection Directorate, accusing FERTICA of violating ILO Conventions Nos. 98 and 135 and the collective agreement (virtually in its entirety), and of unfair practices and trade union persecution.
4. 192. In order to expedite processing of the ATFE's three complaints, the National Labour Inspection Directorate ordered two inspectors to investigate the matters jointly. On 20 November 1995 the inspectors submitted their report (a copy is enclosed) in which they concluded that it appeared to them that FERTICA had "arbitrarily nullified the collective agreement in its entirety, thereby violating section 54 et seq. of the Labour Code and Article 62 of the Political Constitution. Similarly, there was sufficient evidence to ascertain anti-union acts and trade union persecution and unfair practices against the Association of Workers in the Fertilizer Sector, known as the ATFE, in breach of section 363 et seq. of the Labour Code, Article 60 of the Political Constitution, and ILO Conventions Nos. 98 and 135. We therefore request that a summons be issued in accordance with the law". With regard to the allegation of trade union persecution and unfair practices, their report indicates that the inspectors in charge of the investigation found that, on 9 September 1995, FERTICA dismissed all its workers, 265 of whom were members of the ATFE, thus totally destroying stability of employment of organized labour. The report also indicates that on 9 September 1995 FERTICA dismissed the ATFE executive, in breach of the procedure established in article 10 of the collective agreement, national standards on the protection of trade union representatives laid down in section 363 et seq. of the Labour Code and ILO Conventions Nos. 98 and 135. According to the report, as from 9 September 1995 FERTICA stopped applying the collective agreement in its entirety, in breach of the legislation governing labour relations. From the same date, all works committees established by the collective agreement were made inoperative and all workers' rights and guarantees, including trade union immunity were abolished.
5. 193. The Government adds that on 5 December 1995 the parties were summoned to a hearing in accordance with section 365 of the Labour Code. The hearing was set for 18 December 1995, but did not take place until 21 December 1995, having been postponed at the request of the employer's representative. At the hearing, the latter halted the proceedings by challenging the locus standi of the trade union leader Mr. Indalecio Ordoñez Calvo (author of one of the complaints) as representative of the members of the organization that had submitted the complaint. By a decision of 8 January 1996, the office of the Minister revoked the decision of the National Labour Inspection Directorate and allowed the employer's claim.
6. 194. In accordance with the Minister's decision, the National Labour Inspection Directorate summoned the parties to a hearing, which was set for 19 January 1996. The hearing was held on that date, but was attended only by the workers' counsel, since FERTICA's head office had refused receipt of the summons. The outcome of the hearing is perfectly plain from the decision issued by the National Labour Inspection Directorate on 29 January 1996, which confirms the conclusions of the investigating inspectors in their report of 20 November 1995.
7. 195. One of the facts established in that decision is that FERTICA has not applied the collective agreement it concluded with the ATFE since 9 September 1995, although it is valid until 15 September 1996. On 9 September 1995, FERTICA dismissed all workers having paid them their entitlements, including 265 members of the ATFE. The decision also states that the trade union leaders Indalecio Ordoñez Calvo and Marco Antonio Guzmán Rodríguez have not received their pay since 10 September 1995, in breach of article 9 of the collective agreement; and with regard to the dismissal of members of the ATFE executive, FERTICA has violated article 10 of the collective agreement. The National Labour Inspection Directorate therefore allowed the ATFE's complaints of violation of the collective agreement, unfair labour practices and trade union persecution by FERTICA. Furthermore, the parties were informed that, once the decision of 29 January 1996 is confirmed, the requisite complaint will be filed with the proper jurisdictional authority.
8. 196. With regard to this last administrative decision, it should be noted that the complainant organization, in objecting to procedural delays, makes a number of subjective and hasty observations which are misleading for the ILO. In this connection, the Government points out that on 21 February 1996, FERTICA applied to have the decision of 29 January 1996 revoked or, failing that, reviewed. By a decision of 8 March 1996, the National Labour Inspection Directorate dismissed the application for revocation and the other applications filed by FERTICA's representative.
9. 197. It is important to point out at this juncture that, in a telegram of 22 March 1996, the Constitutional Chamber of the Supreme Court of Justice asked the office of the Minister to forward as soon as possible the original file pertaining to the administrative proceedings, which contained FERTICA's application for a review of the decisions of the National Labour Inspection Directorate. It needed the file to examine a claim of unconstitutionality filed by FERTICA SA. The Constitutional Chamber returned the original file under cover of an official letter of 13 June 1996 which also notified ruling N-2810-96 dismissing FERTICA's claim of unconstitutionality on the merits. As soon as the file was returned by the Constitutional Chamber in June 1996, the Minister of Labour gave priority to dealing with the appeal against the administrative decision of 29 January 1996. This shows that any allegation of delays on the Ministry's part is unjust, hasty and unfounded. The Ministry gave its decision on 29 July 1996: it dismissed the appeal and hence the claim for the quashing of the administrative decisions of 29 January and 8 March 1996, and the impugnment of the locus standi of the workers' representative; it also stated that the administrative means of redress had been exhausted. In addition, the National Labour Inspection Directorate was ordered to lodge a complaint without delay with the appropriate jurisdictional authority, in accordance with section 564 et seq. of the Labour Code, seeking the sanctions provided for in the existing labour legislation, without prejudice to any other measures which might be ordered. The actual claims were that the Mayor or Labour Judge, as the case may be, should order restitution of the rights which had been violated and compensation for the injury caused to the workers, in accordance with section 610 of the Labour Code. There was also an express claim for the immediate reinstatement of the workers affected and to payment of the arrears of their wages. The Government sends a copy of the complaint of 30 August 1996 seeking sanctions against FERTICA.
10. 198. The Government stresses that the Ministry of Labour and Social Security conducted the proceedings in accordance with the law, and regrets that the matter has been taken to an international body without all national remedies having been exhausted, with the result that the matter is being dealt with on two fronts simultaneously. This is clearly a result of hastiness and ignorance of the fact that the rule of law prevails in the country. It also reflects a disregard for the truth which leaves the country defenceless, particularly bearing in mind that not only did the National Labour Inspection Directorate intervene to settle the dispute, but so did the Labour Relations Department of the Ministry of Labour and Social Security, which attended various hearings to clarify matters related to the complaint submitted to the ILO.
11. 199. In view of all the foregoing, the Government seeks the dismissal of the complaint in its entirety.

C. The Committee's conclusions

1. 200. The Committee observes that in this case the complainant organization and the Ministry of Labour authorities basically agree (according to the indications in the Government's reply) as to the existence of anti-union acts on the part of the enterprise FERTICA SA (dismissal of officials and members of the Association of Workers of FERTICA SA, and violation of the collective agreement in its entirety). In this context the Committee notes that following a report from the labour inspectorate noting these abuses, committed in September 1995, the Ministry of Labour initiated legal proceedings with a view to penalizing FERTICA and providing compensation for the injury caused, in particular by the immediate reinstatement of the workers affected and payment of the arrears of their wages and, in general, restitution of the rights which had been violated. The Committee regrets that, according to the labour inspectors' report, FERTICA engaged in unfair practices (arbitrary annulment of the collective agreement in its entirety and anti-trade union acts and trade union persecution in the form of dismissal of the executive and 265 members of the AFTE). The Committee also regrets that, following the dismissal of the trade unionists, the firm allegedly hired new workers.
2. 201. With regard to the alleged delaying of the conclusion of the proceedings, the Committee notes the Government's statements concerning the need to ensure that the rules of due process were applied throughout, including in the various interlocutory actions and appeals brought by FERTICA in the administrative proceedings and in its complaint of unconstitutionality (which was dismissed). The Committee observes that, according to the indications in the labour inspectors' report, FERTICA's violations of the law occurred on 9 September 1995 and the above report is dated 20 November 1995. The Committee also observes that the administrative and legal actions brought by FERTICA meant that the Government was unable to go to the judicial authority before the end of August 1996 in order to obtain the penalties and compensation provided for in the legislation. The Committee notes that 11 months had passed by between the anti-union acts alleged by the complainant (September 1995) and the Ministry's judicial application for sanctions against the enterprise and compensation (end of August 1996).
3. 202. The Committee observes that the judicial authority has still not expedited the application for sanctions and the restitution of the rights which have been violated which is not satisfactory if one takes account of the length of time that trade union leaders and members have to wait before their rights are restored. In this connection, the Committee wishes to recall that "cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitutes a denial of justice and therefore a denial of the trade union rights of the persons concerned" (see Digest of decisions and principles of the Committee on Freedom of Association, 4th (revised) edition, 1996, para. 749). The Committee expresses its concern at the slowness and the lack of efficiency of the procedures in a considerable number of cases and requests the Government to take measures to ensure that the procedures are carried out rapidly.
4. 203. In this case, bearing in mind the evidence of anti-union acts noted by the labour inspectors, their serious consequences for the trade union and its members, the time that has elapsed since the violations of trade union rights, and the delay that may still occur in the legal proceedings (possible appeals or further interlocutory actions), the Committee asks the Government to take further steps with a view to mediating between the parties so that the dispute between the AFTE and the FERTICA enterprise may be settled promptly through negotiations and taking fully into account the provisions of Conventions Nos. 98 and 135 ratified by Costa Rica. In particular, the Committee asks that all those who were dismissed on grounds of their trade union office or membership be reinstated in their jobs, and that the collective agreement be observed.
5. 204. Lastly, the Committee regrets that the Government has not answered the allegation that a riot squad was sent to break up a peaceful demonstration that the workers had been conducting outside the FERTICA premises since 11 September 1995. In this context, the Committee points out to the Government that "taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. However, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries" (see Digest, op. cit., para. 586). The Committee asks the Government to ensure that in future this principle is observed.