Report in which the committee requests to be kept informed of development - REPORT_NO320, March 2000

1. 547. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 27 April 1999. This Organization sent additional information in communications dated 21 May and 29 June 1999.
2. 548. The Government sent its observations in communications dated 27 August and 13 September 1999.
3. 549. 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. 550. In its communication dated 27 April 1999, the International Confederation of Free Trade Unions (ICFTU) alleges that the banana-producing enterprise Southern Banana Corporation (COBASUR) refuses to deduct union dues for workers affiliated to the Southern Workers' Union (SITRASUR) as stipulated in the Labour Code of Costa Rica. The ICFTU adds that following a complaint by the union about this matter and also about the violation of other trade union and social rights, the enterprise dismissed Mr. Adrián Herrera Arias, general-secretary of the trade union, without taking into account his status of trade union leader. In addition, when the trade union presented a statement of claims, COBASUR refused to discuss it with the workers' legitimate representatives and set up a solidarity association, negotiating a direct settlement with a workers' committee it appointed itself which was advised by the solidarity members. The Ministry of Labour was informed about these events in two complaints submitted to the National Directorate of Labour Inspection. A further complaint was made concerning anonymous documents addressed to Mr. Adrián Herrera Arias, pressuring him to leave the trade union because his life was in danger, and also indicating that an entirely unidentified vehicle had tried to run him over once when he was walking along one of the roads in the plantation. His immediate reaction had been to throw himself into the trees which saved his life, causing only minor injury. Similarly, on 13 April 1999, after attending to some business on behalf of the workers, Mr. Herrera Arias was stopped in the road by two hooded men carrying guns who tied him by his hands and feet to a banana transport cable, brutally beat him and shot him on the left side of the chest. While they were beating him they warned him to leave the trade union and the banana plantation area; if not, his life and his family's lives would be in danger.
2. 551. Furthermore, in its communications dated 21 May and 29 June 1999, the ICFTU refers to the following events which it considers demonstrate that the Ministry of Public Education is violating trade union freedoms in clear breach of ILO Conventions Nos. 87, 98 and 135:
   • -- The members of the National Executive Council of the Costa Rican Education Workers' Union (SEC) are being refused leave to attend Council sessions. On 9 December 1998, a note was sent to the Ministry of Labour to inform it about the silence of the Ministry of Public Education in respect of the requests for leave made on 4 November for the members of the National Executive Council. This Council is made up of representatives from the country's various regional structures and meets every Friday and Saturday. Official letter reference DGP 4938-98, signed by the Director of the Personnel Department of the Ministry of Public Education, informs the Minister of Public Education that the requests for leave made by the Costa Rican Education Workers' Union for the members of the National Executive Council were approved by the Director and had therefore already been processed and communicated. In addition, in official letter reference DTM 0026-99, dated 11 January 1999, the Minister of Labour states that in accordance with related conversations, this matter had been favourably resolved. However, no specific communication by the Minister of Public Education granting the leave in question was ever made.
   • -- On 26 April 1999, a personal memorandum was addressed to the Minister of Labour and Social Security reiterating the ongoing violation occurring with regard to requests for trade union leave of absence. He was asked to order, in accordance with prevailing regulations, the Ministry of Public Education not to infringe the right to freedom of association. There has been no response to this request.
   • -- On 8 March 1999, in official letter DVM 477-99 the Deputy Minister of Public Education sent to the Costa Rican Education Workers' Union the authorization to conduct regional assemblies scheduled throughout that year. As a result of this authorization all related scheduling and preparatory work for these regional assemblies was carried out. However, without any warning or consultations the Deputy Minister of Public Education revoked the circular through official letter reference DVM dated 22 April 1999. He granted leave for only 23 April 1999, leaving the entire scheduled programme in the lurch. Then, in official letter DVM 971-99, dated 10 May 1999, the Deputy Minister of Public Education refused a request for leave of absence to carry our regional assemblies and trade union activities.
   • -- In official letter reference DVM 962-99, addressed to the President of the Costa Rican Education Workers' Union, the Deputy Minister of Public Education refused leave for caretakers to participate in trade union activities on 20 May 1999. However, the most serious part of the communication is contained in the following two paragraphs: "In compliance with the Central American Agreement on the Basic Unification of Education, this Ministry has scheduled the 1999 school calendar to consist of an academic year of 200 days of teaching, with no provision for days off to hold assemblies of teachers' associations and trade unions or for their executive committees to meet during school hours." And the most serious aspect of this note is the following statement: "I must also point out that our legislation contains no provision granting trade union organizations the right to and consequently obliging this Ministry to issue, the requested leave." With this statement the State of Costa Rica, through the Ministry of Public Education, is ignoring the existence of ILO Conventions Nos. 87, 98 and 135, ratified by Costa Rica, which have a higher authority than the law, as established in article 7 of the Constitution which states: "Public treaties, international agreements and concordats duly approved by the legislative assembly shall have a higher authority than the laws upon their enactment or from the day that they designate."
3. 552. The National Teachers' Association (ANDE) finds itself in a similar situation. Being the principal teachers' organization in the country, when it was first established it received the necessary support for its start-up and subsequent development, and legal provisions were established to ensure that it could carry out its trade union activities. In effect, the legislation setting up the ANDE guaranteed it the right to hold national congresses, thus promoting the necessary participation of its affiliates as an unquestionable element in its development. In this respect article 8 states: "The Ministry of Public Education will grant paid leave to members who perform functions under its jurisdiction in order to attend the sessions of national teachers' congresses." As teachers constitute a majority group of workers in the public service sector, the ANDE should carry out activities at the regional level in all the districts and provinces of Costa Rica in order to meet the need for information and training for teachers, not only with respect to their entitlements, but also to provide support for the development of education in Costa Rica.
4. 553. The ICFTU explains that owing to the large number of teaching staff that make up the ANDE - at present over 40,000 affiliates - the organization consists of grass-roots and regional subsidiaries, which hold annual assemblies, the former in May and August and the latter in June and September, in accordance with articles 50(a) and 45(a) of its statutes. During these assemblies activities are carried out such as the election of representatives to the association's highest management bodies which are the central executive committee and the board of directors. Since its establishment, the ANDE has only held the minimum number of assemblies necessary to ensure its associates their rights of participation and election, which is why any appropriate time during the working day is used, and it has become a recurrent and accepted custom to grant absence of leave for such assemblies.
5. 554. Likewise, it is important to point out that the National Executive Committee of the ANDE, consisting of 65 representatives, usually meets on Saturdays. Nevertheless, the representatives who come from the border zones and other faraway places must make the journey at least one day earlier, and therefore need leave to stop work earlier, but the Government, through the Deputy Minister of Public Education, expressly states that leave will not be granted to these representatives. The other ANDE management body is the board of directors, consisting of nine members, four of whom have unpaid leave to carry out their duties on a full-time basis, with the other five representatives requiring leave to participate in the sessions which are usually held on Friday afternoons; these five will also be affected by the Government's refusal to grant leave. But it is not only the ANDE and the SEC that have been denied leave to carry out their assemblies and trade union activities - the same thing has happened to administrative workers in the Costa Rican educational system, as in the case of the caretakers, when the Ministry of Public Education refused to grant leave to the organizations to which these workers belong, that is the National Caretakers' Union (UCEP) and the National Union of Caretakers in Public and Private Education (SINCOSEPP).

B. The Government's reply

1. 555. In its communications dated 27 August and 13 September 1999, the Government states that with respect to the allegations concerning the enterprise called COBASUR, the statement of claims presented by the SITRASUR trade union led to the parties being convened by the directorate for labour affairs for industrial conciliation. During the negotiating process, the enterprise signed a direct settlement with a "standing workers' committee". Given the enterprise's refusal to continue dialogue with SITRASUR, the trade union representatives lodged a complaint for alleged unfair labour practices against the trade union on 9 June and 1 September 1998. The Government adds that in reports dated 25 August and 3 November 1998, the labour inspectorate established through administrative channels: (1) the unjustified dismissal of Mr. Adrián Herrera Arias and anti-union persecution against him; (2) direct interference by the enterprise administration in the establishment of the standing committee to the detriment of the union; (3) direct participation by the enterprise administration in the establishment of the standing committee to the detriment of SITRASUR. Consequently, the inspectorate lodged a complaint with the labour courts on 20 November 1998; the defendant did not appear and the final judgement is now being awaited as the case is in the final phase.
2. 556. The Government adds that the complaint concerning the threats and aggression targeting the trade union leader Adrián Herrera Arias was a penal matter and was therefore submitted to the Attorney-General's office in order for it to carry out the necessary investigation. Nevertheless, the labour inspectorate's report states that there is no proof of the attempt to run the trade union leader over nor of the shots fired at him, and certainly nothing about the enterprise's involvement in sending anonymous letters.
3. 557. With respect to the allegations concerning the failure of the Ministry of Education to grant leave for leaders from teaching organizations to attend meetings and to enable their affiliates to attend the assemblies and congresses of these organizations, the Government states that it finds it surprising that the complainant organizations did not appeal to the Constitutional Court concerning the alleged violation of Conventions Nos. 87, 98 and 135 which have higher authority than the laws (article 7 of the Constitution) and notes that there are expeditious and effective means and instruments that can be used before this Court to establish unconstitutionality.
4. 558. The Government indicates with regard to these allegations that Costa Rica, by way of Act No. 3726 of 16 August 1996, approved the so-called Central American Agreement on the Basic Unification of Education, article 25(7) of which establishes that the States formally agree to the following: "The signatory States decide to establish a minimum of 200 days of actual classes per year with a working day of no less than five hours. Likewise, they must endeavour by all possible means, and as far as circumstances permit, gradually to eliminate non-stop, double-shift and alternate-attendance teaching." The Constitutional Court has ratified the applicability, obligatory nature and priority of the agreement, which requires States to ensure adherence to an academic year of a minimum of 200 days. In compliance with the agreement, the Ministry of Education scheduled the 1999 school year to include 200 actual school days, with the school calendar not making provision for days to hold teacher association and union meetings, or for the executive committees of these bodies to conduct their sessions during school hours. Accepting the complaint made by the applicants would unavoidably imply repudiating the above agreement which has a higher authority than other national laws and therefore infringing upon the right of students to education, as a school year of less than 200 actual days of class would be forced upon them, which is an infringement of a right as fundamental as education. Legislation does not contain any regulation granting the right of trade union associations to the requested leave, and the consequent obligation of this Ministry to issue it, affecting the minimum length of the school year.
5. 559. The Government indicates that the assemblies of trade unions and their associations are a strictly internal matter and are unrelated to the development of the teaching/learning process, so that the logical, prudent and legal approach is for their assemblies and the meetings of their executive committees to be held outside working hours, as this is the only way of ensuring that they will not interrupt school hours, the continuity of which the Ministry of Education should guard particularly jealously. The refusal to grant leave does not in any way infringe upon the right of unionization. This case comes down to the fact that, for legal reasons and on the grounds of the best interests of the student community and the supreme right to education, their assemblies cannot be held during school hours or on school days.
6. 560. The Government points out that the complaint lacks any current relevance as the parties involved, that is the Ministry of Public Education and the complainant trade unions, reached an out-of-court agreement. On 22 June 1999 the parties signed an agreement under which, as from the 2000 academic year, the Ministry of Education will negotiate the school calendar with the teaching organizations, incorporating trade union activities and ensuring that the school year will be of a duration of no less than 200 actual days of class. The agreement also stipulated that during the 1999 academic year the Ministry would grant the necessary leave to attend national assemblies and executive committee sessions. In other words, following the submission of the complaint to the ILO, the Government of Costa Rica, turning once again to dialogue, managed to overcome the disparate views held on this issue.

C. The Committee's conclusions

1. 561. The Committee observes that the allegations relate to various anti-union acts and practices in the Southern Banana Corporation (COBASUR) and to the refusal to grant trade union leave in the public education sector.
2. 562. As regards the enterprise COBASUR, the Committee observes that the complainant organization alleges the enterprise's refusal to deduct trade union dues for the affiliated workers, the dismissal of the general-secretary of the Southern Workers' Union (SINTRASUR) - Mr. Adrián Herrera Arias, the threats and serious aggression inflicted on this trade union leader, and the negotiation of a direct settlement with a workers' committee advised by a solidarity association set up by the enterprise in spite of the fact that SITRASUR had already submitted a statement of claims to the enterprise for the signature of a collective agreement.
3. 563. In this respect, the Committee notes that according to the Government, on the basis of a complaint made by SITRASUR, on 9 June and 1 September 1998 the administrative authority proved - as demonstrated in its reports of 25 August and 3 November - the unjustified dismissal of the trade union leader Mr. Adrián Herrera Arias, and also participation and direct interference by the enterprise in the establishment of the workers' committee, and as a result the authorities filed a complaint with the courts, with the case now being in its final phase. The Committee deeply regrets the acts of anti-union discrimination and interference confirmed by the administrative authority and requests the Government to keep it informed of the results of the decision handed down.
4. 564. As regards the alleged threats and aggression (beatings) inflicted on the trade union leader Mr. Adrián Herrera Arias, the Committee notes that as this was a penal matter the complaint was submitted to the Attorney-General, although according to the report by the labour inspectorate there is no proof of the attempt to run the trade union leader over nor of the shots fired at him, and certainly nothing to imply the enterprise in the sending of anonymous threatening letters. The Committee requests the Government to inform it about what the Attorney-General's office has done in this regard, to ensure a judicial inquiry is promptly carried out and to send it the results. Lastly, the Committee requests the Government to take measures to ensure that COBASUR deducts the dues of SITRASUR affiliates as provided by law.
5. 565. Concerning the alleged refusal to grant trade union leave to the members of the National Executive Council of the Costa Rican Education Workers' Union (SEC), the Committee observes that the complainant organization underlines that initially (December 1998) the administrative authority did not reply in writing to the request for leave, then subsequently authorized regional meetings to be held (8 March 1999). On 22 April 1999 the Deputy Minister of Labour revoked his own circular and granted leave for only 23 April 1999, stating that the Central American Agreement on the Basic Unification of Education contained a commitment to ensure 200 actual school days per school year and that legislation did not contain any provision granting the right to trade union leave (outside school hours). The complainant organization indicates that the National Teachers' Association (ANDE) - more specifically its board of directors and its national executive committee - as well as the organizations that group together the administrative staff in the public education sphere (for example, the National Caretakers' Union and the National Union of Public and Private Education Caretakers) are in a similar situation.
6. 566. The Committee notes the Government's declaration that in compliance with the abovementioned Central American Agreement, the Ministry of Education structured the 1999 school year to include 200 actual days of school and that no provision was made for days off to hold assemblies nor for the executive committees to hold their sessions during school hours, in order not to infringe upon the students' right to education. In addition, according to the Government there is no rule obliging the Ministry of Education to grant trade union leave, and trade union assemblies are internal union activities that can take place outside work hours without interrupting schooling. Nevertheless, the Committee observes the Government's information that the Ministry of Public Education and the trade unions reached an agreement on 22 June 1999 whereby as from the 2000 school year the Ministry will negotiate the school calendar with the trade union organizations, incorporating trade union activities and granting the necessary leave to attend national assemblies and sessions of executive committees. The Committee notes this information with interest. However, it must underline that, according to the complainant, trade union leave had been granted for some years as an established practice and had been withdrawn for the most part unilaterally and abruptly between December 1998 and the date of the above agreement, which was highly detrimental for the trade union organizations. It cannot but regret this measure, despite its temporary nature.