Report in which the committee requests to be kept informed of development - REPORT_NO346, June 2007

879. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU), dated 21 August 2006.

1. 880. The Government sent its observations in a communication of 21 December 2006.
2. 881. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 882. In its communication of 21 August 2006, the ICFTU states that, in accordance with the political Constitution of Costa Rica, the executive authority shall respect the autonomy of the judicial authority and the Constitution clearly indicates that neither branch may delegate the exercise of the functions attributed to them. According to the ICFTU, it is here that a conflict arises with the President’s good intentions to the effect that, for the Government of Costa Rica, there are not and cannot be any concessions in the protection of workers’ rights and with his wish for Costa Rica to continue, above all, to be a country of law, in which court decisions are always complied with, but also in which the courts undertake to give effect to the principle of rapid justice for all workers. The conflict lies in the fact that the Constitutional Chamber of the Supreme Court of Justice, the highest court in the country, the judgements of which are binding and applicable to everyone, has ruled unconstitutional clauses in collective agreements in the public sector on the basis of the criteria, among others, of proportionality, equality, rationality. In addition to all these problems, judicial procedures to solve cases involving anti-union acts which arose are slow and often ineffective.
2. 883. The ICFTU adds that, with regard to the private sector, the context put in place favours the establishment of solidarist associations and there are now 130 agreements signed by non-unionized workers, compared with only 12 collective agreements. This is due to the fact that any workers who attempt to establish a trade union are dismissed immediately. If they are not reinstated, these individuals are obliged to find work elsewhere and are often placed on a black list known only to the employers, the purpose of which is to prevent them from finding a new job.
3. 884. In this regard, the ICFTU states that, on 5 June 2006, the workers of the National Community Development Office (DINADECO) decided to form a trade union known as the Independent Union of Workers of DINADECO (SINTRAINDECO), invoking article 60 of the political Constitution and ILO Conventions Nos 87 and 98. On 6 July 2006, the Register of Civil Organizations of the Ministry of Labour and Social Security formally acknowledged receipt of the document containing all the paperwork supporting the establishment of the trade union, its statutes and the appointment of the elected executive committee. In a note attached to the document establishing the trade union, the trade union expressly requests the said office to take into consideration the names of all the workers contained in the document establishing the trade union with regard to the enjoyment of trade union immunity.
4. 885. The ICFTU adds that despite this request and the fact that it was fully aware that the trade union had been established (the constituent assembly was held on DINADECO premises), the body in question proceeded to send letters of dismissal between 14 July and 15 August 2006 to workers on the elected executive committee. The letters were addressed to the following individuals: Lucrecia Garita Argüedas, Oscar Sánchez Vargas, Irving Rodríguez Vargas, Rafael Ayala Haüsermann and Giselle Vindas Jiménez.
5. B. The Government’s reply
6. 886. In its communication of 21 December 2006, the Government states that it is serious in its statements and that it is committed to seeing them through in the time period allowed it by the democratic, open and participative regime, subject to those procedures, laws and rules ensuring effective action. It stresses that it does not share the feelings expressed by the complainant organization regarding the statements made by the President of the Republic during the 95th Session of the International Labour Conference and fully supports the commitment voiced, in particular with regard to the recognition of dialogue as an effective instrument in the application of international labour standards. The Government states that it hopes that the trade union organizations, which turn to the ILO without having exhausted the appropriate procedures in cases of unfair labour practices when such cases arise, will make a similar commitment. The Government states that it was in just such a way that the complainant organization abruptly and inexplicably turned its back on the prevailing rule of law, with no real justification and with the sole intent of increasing its chances of winning the action by taking it to an international level. The complainant organization puts forward (in a disorganized fashion) a series of observations that have been examined by the Committee on Freedom of Association and by the Committee of Experts on the Application of Conventions and Recommendations in their periodical comments with regard to the application of Convention No. 98 and Case No. 2104, which involves, among other things, the issue raised by the complainants with regard to the use of a plea of unconstitutionality against collective agreements in the public sector.
7. 887. The Government recalls that, under the political Constitution, the Government is elected by the people, is representative, in rotation and responsible. It is exercised by the people and three distinct and independent authorities: the executive, the legislative and the judicial authorities. None of the authorities may delegate the exercise of functions attributed to them. Against this background, the Constitution states that public officials are merely trustees of authority and cannot assume powers which have not been bestowed upon them by law. The complainant organization appears to disregard this last point and is attempting, through this international body, to introduce procedures in relation to actions which are duly regulated by law and with regard to which due process and legitimate defence have clearly been respected, as will be demonstrated. In Costa Rica, the administrative and judicial procedures end when all stages, both administrative and judicial, have been completed, and not before. Omitting part of the due process of law established in the legislation, be it administrative or judicial, is tantamount to ignoring the Constitution.
8. 888. The Government states that the complainant organization contributes to this lack of respect every time it turns to this body without having previously exhausted the procedural instruments provided for in substantive law, thus making undue use of the bodies of the ILO. The Government states that it has made it clear that it is more than willing to resolve administrative and judicial proceedings concerning allegedly unfair labour practices, such as those referred to by the complainant, through the definition of reasonable policies protecting the rights of unionized workers, in accordance with the constitutional guarantees of due process and legitimate defence. As can be seen from the report of the General Board of Labour Affairs, a body which acts as a mediator during both individual and collective labour conflicts, the Ministry of Labour and Social Security fulfilled its function of mediator between the conflicting parties, dealing in an appropriate manner, through the use of the conciliation channels placed at its disposal by the legalization in force, with each of the cases denounced, and urged the parties to find a solution that would guarantee social and labour peace. In no case did the authority attempt to impose measures the imposition of which is attributed to the courts of law.
9. 889. The Government recalls that, in light of the prevailing rule of law in Costa Rica, with regard to this matter, article 153 of the political Constitution provides that it shall be the responsibility of the judicial authorities, in addition to their other constitutional functions, to investigate civil, criminal, commercial, labour and administrative acts, irrespective of their nature and the status of those involved, to reach final conclusions and to ensure the implementation of their rulings, where necessary with the assistance of the forces of order. In this regard and in accordance with the principle of separation of powers, the Government states that it had no interest whatsoever in refusing to mediate in accordance with the law, or even in halting mediation activities, with regard to the situations referred to by the complainant organization. Proof of this can be seen in the meetings organized by the authorities of the Ministry of Labour and Social Security with the parties concerned, in an attempt to find a solution which would bring about social and labour peace within DINADECO.
10. 890. It is important to point out that with regard to the administrative proceedings for the reinstatement of a trade union official, that, aware of the need to improve the regime of trade union protection provided for in the labour legislation, the Executive has presented the Legislative Assembly with a draft reform of the chapter on trade union protection of the Labour Code, which is presently on the parliamentary agenda under file No. 14676. This draft is intended to expand the legal protection of unionized workers and workers’ representatives, in order to reinforce and guarantee the right of union affiliation for Costa Rican employees, as well as the free exercise by the leaders of representative functions. The possibility is thus given to unions to give their opinion concerning the formulation and application of government policies which could affect their interests. Unions are also given a major role during conciliation procedures in economic and social collective disputes. The framework for the action of unions and their representatives is thus enlarged.
11. 891. On the other hand, the draft reform in question tends to establish a procedure at the management level which should be observed by every employer prior to a justified dismissal; the dismissal being null and void in the event that the aforementioned procedure has not been applied. In such a case, the worker would be able to request reinstatement with entitlement to unpaid wages. An accelerated judicial procedure is also being introduced which can be used by both union leaders and affiliated members in case of dismissal for reasons linked to their union activities, and which would reply to the comments concerning the slowness of procedures in cases of anti-union discrimination and the need to expand the legal protection of union representatives. The introduction of joint liability of unions, federations and confederations of workers or employers for damages and prejudice that they have caused (duly provided for under the legislation) constitutes another innovation which will be made by the reform. The proposed reform thus tends to include all situations relating to freedom of association which occur in practice by establishing special protection and legal security for persons exercising the fundamental right to organize.
12. 892. In addition, and in keeping with the wish to ensure that judicial procedures are flexible and swift, the Government is pleased to announce that a “Bill to reform labour proceedings” (file No. 15990) is currently on the parliamentary agenda. This Bill is the result of work carried out involving magistrates and principal and alternate magistrates of the Second Chamber of the Supreme Court of Justice, judges and labour judges, experts in labour law, officials of the Ministry of Labour and Social Security and representatives of employers’ organizations and the trade union sector. All the social partners contributed to this proposal, which seeks to regulate the issues it addresses in a balanced fashion, taking account of the varied interests at stake, and to stand as an effective tool for the resolution of the various conflicts which arise within the world of work. It has also been designed to make possible the peaceful coexistence of the various factors of production at a time of significant change when there is a need for evermore instruments protecting rights as an essential basis for appropriate human development.
13. 893. Important aspects of the Bill relating to issues that come under “special labour jurisdiction” include the fact that it resolves various questions, such as those brought up by the complainant organization with regard to the slowness of procedures in trade union cases. It should be pointed out here that a special procedure for the protection of persons with specific protected status and the respect of due process has been established. This is a very brief procedure, similar to a claim for the enforcement of constitutional rights (amparo constitucional), involving the automatic, but revisable, suspension of the application of the decision. The following categories of individual are covered by this procedure: pregnant or breastfeeding women, workers enjoying trade union immunity, victims of discrimination and, more generally, any public or private sector worker upon whom any type of immunity has been bestowed through law or through a collective instrument. Furthermore, collective procedures have been simplified, a special process has been established for the official designation of situations as strikes and steps have been taken regarding the promotion of the application of the principle of oral proceedings, one of the most important innovations as its application permeates all the procedures and makes it possible to apply other principles, such as mediation, concertation and publicity. At this point, and owing to the significant joint effort made by the executive and judicial authorities and the main social partners, with guidance provided through the technical assistance of the ILO, the Government hopes that, once it has been analysed and studied by the Legislative Assembly, the Bill will become law in the Republic in the near future.
14. 894. The Government regrets the number of subjective observations issued by the complainant organization with regard to the case in question and, in order to contribute to the analysis of the complaints being carried out by this international body, it fully associates itself with the reports issued by the Director-General of Labour Affairs and the National Director of Community Development which state the following:
15. (i) On 11 July 2006, Mr Mario Rojas Vilchez, in his role as Secretary of Legal, Human Rights and Trade Union Matters of the Rerum Novarum Confederation of Workers (CTRN), informed the Minister of the need to convoke an urgent meeting of representatives of DINADECO, SINTRAINDECO (the trade union was in the process of being established at that point) and the Workers’ Confederation of Costa Rica (CTCR) and requested that this be done, in order to seek without delay a solution to the labour conflict surrounding the dismissal of members of the executive committee of SINTRAINDECO and workers who had actively participated in the establishment of the trade union.
16. (ii) In line with the request, as of 19 July 2006, a series of efforts were undertaken at a ministerial level to find a solution to the conflict through conciliation–mediation, with several conciliation meetings being held at the office of the Minister in which he participated. It was difficult to get both parties to turn up for these meetings, with the representatives of the employers claiming on several occasions that they were unable to attend. Unfortunately, the conciliation process failed and no satisfactory agreement was reached. In view of this, the matter passed into the hands of the National Labour Inspection Directorate, in line with the procedure provided for by the Labour Code concerning unfair labour practices. The procedure is still ongoing before this body.
17. (iii) The following information is provided with regard to the workers referred to by the complainant organization:
18. - The case of Giselle Vindas Jiménez: in response to institutional needs and opportunities, the National Directorate, through document No. DND-776-06, requested that the job content of post No. 097258, which was, at the time, occupied by the worker in question, be altered. This process was carried out on 28 June 2006. As a consequence, the institution was obliged to make the holder of the post at the time redundant, owing to the fact that she no longer fulfilled the requirements for that post because her academic qualifications (she has a BA in systems analysis) were incompatible with the work of the Specialized Group for Social Promotion. On 30 June 2006, through communication No. 243-2006-DRH, the Administrative Director of DINADECO informed Mrs Giselle Vindas Jiménez of her redundancy as of that date, as a result of a study that had called for changes to the job content of her post. On 10 July of that year, the office received an amparo action (appeal for protection of constitutional rights) lodged by Mrs Vindas Jiménez. The abovementioned amparo action was challenged through document No. DND-1044-2006 in the Constitutional Chamber, on 12 July. Through communication No. DND-1248-2006, dated 1 August 2006, Mrs Vindas Jiménez was provided with the documentation relating to the administrative steps that led to her redundancy.
19. - The case of Lucrecia Garita Argüedas: on 24 January 2005, the National Directorate of DINADECO, through request No. 2005.016, announced the postponement of the appointment of a candidate to post No. 097237. On 29 June 2006, the Human Resources Department of DINADECO sent telegrams to the candidates for the said post, informing them that the requisite interviews would be held on 7 July 2006. A candidate was appointed to post No. 097237 by the authorized head. On 10 July 2006, Mrs Lucrecia Garita Argüedas was informed through communication No. 264-2006-DRH that she was to be made redundant as of 15 July 2006, as a result of the selection of a candidate for post No. 097237. On 12 July 2006, the office received an appeal from Mrs Lucrecia Garita Argüedas for the decision to be revoked or, failing that, reviewed and for all the proceedings instituted to be declared null and void. On 17 July 2006, Mrs Lucrecia Garita Argüedas submitted further information regarding allegations concerning ordinary appeals. Through resolution No. DND-45-2006, of 20 July 2006, it was resolved: firstly, to reject the appeal for the decision to be revoked; secondly, to transmit the appeal for the decision to be reviewed to the Ministry of Governance, Police and Public Security. Through communication No. DND-1217-2006, of 7 August 2006, Mrs Lucrecia Garita’s file was sent to the Ministry of Governance, Police and Public Security.
20. - The case of Rafael Ayala Haüsermann: the central offices of DINADECO are located between Avenues 16 and 18, Streets 0 and 2 of the city and, owing to the high crime rate, there must be security guards present on the premises 24 hours a day, 365 days a year. Because of a shortage of appropriate staff, agents have, in the past, been provided on secondment by the forces of order. Owing to a change of administration, new government policies and the needs and duties of this body, it was decided to reduce or end the cooperation previously provided by the forces of order, as stated by the Head of the Integrated Services Department of DINADECO in communication No. SI-053-06. In response to institutional needs and opportunities, through communication No. DND-929-06, the National Directorate sought the alteration of the job content of posts Nos 097241 and 097257 (mobile equipment operator 1). These posts are currently vacant, with no one having yet been appointed to them. Therefore it is entirely understandable that the institution should seek to satisfy its staffing requirements through posts which do not affect projected budgetary spending and to which no one has been appointed and this does not in any way undermine consolidated substantive rights. The Directorate is acting in the public interest, with a view to providing services. Technical study No. ETR-004-2006 is the result of an instruction issued by the National Directorate in which it recommended that the Decentralized Office of the Civil Service of the Ministry of Public Security should alter posts Nos 097241 and 097257 (mobile equipment operator 1) to security and surveillance 1 class. Thus, the institution was obliged to make the individual who was temporarily holding post No. 097241, Mr Rafael Ayala Haüsermann, redundant because he did not fulfil the requirements relating to that post, more specifically, those requirements applying to the specialized group for security and surveillance 1, in particular, a licence to carry a firearm. On 3 August, an amparo action (appeal for protection of constitutional rights) was received which had been lodged by Mr Rafael Ayala Haüsermann. There is no truth whatsoever to the claim that the documentation relating to the aforementioned procedures was withheld from Mr Rafael Ayala Haüsermann, indeed there is no record of any request having been made regarding the documentation. However, in order to show that the administration was acting in good faith, through communication No. DND-1278-06, of 7 August 2006, the appellant was provided with the relevant documentation. The amparo action lodged by Mr Ayala Haüsermann was challenged in the Constitutional Chamber through communication No. DND-1279-2006, dated 7 August 2006.
21. 895. Finally, the Government states that it has shown through its actions that it utterly deplores any anti-union practice and shall not hesitate to bring to bear the full might of the law in those cases where it has been successfully demonstrated that such illegal acts have been committed. To date, with regard to the cases referred to by the complainant organization, it has not been demonstrated in accordance with law that illegal acts have been committed.

C. The Committee’s conclusions

1. 896. The Committee notes that in the present case the complainant organization objects, in general, to the slowness of procedures in cases of anti-union discrimination; alleges that only a small number of collective agreements have been concluded in the country (12), while very many direct agreements have been signed with non-unionized workers, and that various members of the executive committee of the Independent Union of Workers of DINADECO (SINTRAINDECO) were dismissed a few months after the trade union was established.
2. 897. Firstly, the Committee wishes to refer to the Government’s statement to the effect that: (1) in Costa Rica, the administrative and judicial procedures end when all stages, both administrative and judicial, have been completed, and not before; (2) omitting part of the due process of law established in the legislation, be it administrative or judicial, is tantamount to ignoring the Constitution; (3) the complainant organization contributes to this lack of respect every time it turns to the Committee without having previously exhausted the procedural instruments provided for in the law, thus making undue use of the bodies of the ILO. In this regard, the Committee recalls that although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures.
3. 898. As to the alleged slowness of procedures in resolving cases involving anti-union acts, the Committee notes that the Government states that: (1) in order to ensure that judicial procedures are flexible and swift, a “Bill to reform labour proceedings” (file No. 15990) is currently on the parliamentary agenda; (2) this Bill is the result of work carried out involving magistrates and principal and alternate magistrates of the Second Chamber of the Supreme Court of Justice, judges and labour judges, experts in labour law, officials of the Ministry of Labour and Social Security and representatives of employers’ organizations and the trade union sector; (3) all the social partners contributed to this proposal, which seeks to regulate the issues it addresses in a balanced fashion, taking account of the varied interests at stake, and to stand as an effective tool with regard to the resolution of the various conflicts which arise within the world of work; (4) important aspects of the Bill relating to issues that come under “special labour jurisdiction” include the fact that it resolves various questions, such as those brought up by the complainant organization with regard to the slowness of procedures in trade union cases; (5) it should be pointed out here that a special procedure for the protection of persons with specific protected status (among them, workers enjoying trade union immunity) and the respect of due process has been established. This is a very brief procedure, similar to a claim for the enforcement of constitutional rights, involving the automatic, but revisable, suspension of the application of the decision; (6) collective procedures have been simplified, a special process has been established for the official designation of situations as strikes and steps have been taken regarding the application of the principle of oral proceedings, one of the most important innovations as its application permeates all the procedures and makes it possible to apply other principles, such as mediation, concertation and publicity; (7) the Bill represents a significant joint effort on the part of the executive and judicial authorities and the main social partners, with guidance provided through the technical assistance of the ILO, and the Government hopes that, once it has been analysed and studied by the Legislative Assembly, it will become law in the Republic in the near future. The Committee requests the Government to keep it informed of developments regarding the Bill in question and expects that it will resolve the problem of the excessive slowness of procedures.
4. 899. As to the alleged dismissal of several members (Lucrecia Garita Argüedas, Oscar Sánchez Vargas, Irving Rodríguez Vargas, Rafael Ayala Haüsermann and Giselle Vindas Jiménez) of the executive committee of SINTRAINDECO, a few months after the trade union was established, the Committee notes the Government’s statements to the effect that: (1) in the case of Giselle Vindas Jiménez, the job content of her post was altered and the institution was obliged to make her redundant because her qualifications were no longer compatible with the post. The worker in question lodged an amparo action which is currently before the Constitutional Chamber; (2) in the case of Lucrecia Garita Argüedas, a process of selection of candidates for that post was held and another individual was chosen. The worker in question presented an unsuccessful appeal for the decision to be revoked, followed by an appeal for the decision to be reviewed, which is currently before the Ministry of Governance, Police and Public Security; (3) in the case of Rafael Ayala Haüsermann, the job content of the post he was temporarily occupying was altered and he had to be made redundant because he did not meet the necessary requirements (in particular, a licence to carry a firearm). The worker in question lodged an amparo action, which is currently before the Constitutional Chamber. The Committee affirms that realignment of duties, qualifications as well as other bona fide occupational experience, skills, knowledge and ability requirements, especially in the case of positions held by trade union leaders, should be undertaken with a view to prevent adverse effects to sound industrial relations with trade unions. The Committee requests the Government to keep it informed of the outcome of the judicial or administrative proceedings relating to the dismissals of the trade union leaders in question, and, should it be found that they were dismissed on anti-union grounds, to take measures to ensure that they are reinstated in their posts or in similar posts corresponding to their abilities, with payment of wages due and appropriate compensation. Moreover, if the competent judicial authority finds that reinstatement is not possible, the Committee requests that they be fully compensated.
5. 900. Furthermore, the Committee regrets that the Government has not sent its observations concerning the alleged dismissal of the leaders of DINADECO (SINTRAINDECO), Oscar Sánchez Vargas and Irving Rodríguez Vargas. The Committee requests the Government to take measures to ensure that an independent investigation is carried out in this regard and, should it be found that they were dismissed on anti-union grounds, to take measures to ensure that they are reinstated in their posts or in similar posts, with payment for wages due and appropriate compensation. The Committee requests the Government to keep it informed in this regard. If the competent judicial authority finds that reinstatement is not possible, the Committee requests that they be fully compensated.
6. 901. As to the allegations relating to the small number of collective agreements concluded in the country and the very high number of direct agreements signed with non-unionized workers, the Committee notes that the Government states that this issue was already examined by the Committee and by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) when examining the application of Convention No. 98. In this regard, the Committee notes that the Government informed the CEACR that “the Administrative Directive of 4 May 1991 requires the labour inspectorate to certify that the enterprise concerned does not have a union recognized for bargaining purposes before registering direct agreements with non-unionized workers; however, the Government adds that there were 67 collective agreements in force in the public sector in August 2006 and 13 in the private sector, whereas the number of direct agreements was 69.” [See Report of the Committee of Experts, 2007, Part 1A, p. 72 of the English-language text]. Furthermore, the Committee notes that the said CEACR report states that the problem of the increased number of direct agreements with non-unionized workers in relation to the number of collective agreements would be addressed by an independent expert appointed by the ILO who would undertake an independent inquiry in Costa Rica in February 2007. The Committee expresses its concern at the situation with regard to collective bargaining and requests the Government to keep it informed in that respect, as well as with regard to all measures adopted in relation to the low number of collective agreements with a view to ensuring the application of Article 4 of Convention No. 98 regarding the promotion of collective bargaining with workers’ organizations.