Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report and the report of the direct contacts mission which visited Costa Rica from 4 to 8 October 1993.

The Committee notes Legislative Decree No. 7348 of 18 June 1993 and Act No. 7360 of 4 November 1993 to reform the Act on solidarist associations, the Labour Code and the Basic Act of the Ministry of Labour, which was adopted three weeks after the conclusion of the direct contacts mission.

In this respect, the Committee notes with satisfaction that Legislative Decree No. 7348 repeals sections 333 and 334 of the Penal Code, under which public officials and employees who went on strike could be punished by imprisonment and fines. The Committee also notes with satisfaction that Act No. 7360 of 4 November 1993 complies with various requests made by the Committee in its previous observation:

- with regard to the request by the Committee of Experts and the Committee on Freedom of Association that solidarist associations refrain from engaging in trade union activities and, in particular, in collective bargaining, the new Act prohibits these associations from "undertaking any kind of activity tending to combat or in any way hinder the formation and operation of trade unions and cooperative organizations"; "signing collective agreements or direct arrangements relating to labour"; "participating in hiring and collective labour agreements". The new Act also states that "When there is a trade union in an enterprise, to which at least a simple majority of its workers belong, the employer is prohibited from collective bargaining of any type with anyone but the union. Any agreement signed that conflicts with the provisions of this section shall not be registered or approved by the Ministry of Labour and Social Security, nor can it oppose trade union interests";

- with regard to the request by the Committee of Experts and the Committee on Freedom of Association that all unequal treatment of solidarist and trade union associations be eliminated, under the new Act trade unions may be formed with a minimum of 12 members (the same number as is required for solidarist associations);

- with regard to the request by the Committee of Experts and the Committee on Freedom of Association that effective protection be guaranteed against all types of anti-union discrimination, the new Act:

(a) prohibits "actions or omissions that tend to avoid, limit, restrain or prevent the free exercise of the collective rights of workers, their trade unions or coalitions", and also establishes that "any act arising from such actions or omissions is absolutely null and void and shall be penalized under the provisions of the Labour Code, its supplementary or appended Acts concerning infringements of prohibitive provisions";

(b) stipulates that the following shall enjoy labour stability: members of trade unions being formed (for a period of no longer than four months); certain trade union officials (while holding their posts and for six months subsequently); and candidates for the executive committee (for three months following announcement of their candidacy). In the case of the dismissal without just cause of workers enjoying labour stability, the Act stipulates that "the competent labour court shall declare such dismissal null and void, and shall subsequently order that the worker be reinstated and paid all outstanding wages, in addition to penalties for which the employer is liable pursuant to this Code and its supplementary and appended Acts";

(c) stipulates that "punishable infractions are those actions or omissions committed by employers, workers or their respective organizations that transgress the norms provided in Conventions adopted by the International Labour Organization, ratified by the legislative body, and the norms provided in this Code and in social security Acts". The new Act provides a list of penalties, which may be as high as 23 months of minimum wages.

The Government also stated that on 8 October 1993, the Supreme Court of Justice declared receivable an appeal for enforcement of constitutional rights (amparo), in direct application of Conventions Nos. 87, 98 and 135, ordering the reinstatement of the trade union members who had been dismissed without notification of the grounds of their dismissal.

With regard to the question of the exclusion from the scope of the Labour Code (and therefore from its provisions on freedom of association and collective bargaining) of small agricultural and stock-raising enterprises with no more than five permanent employees (section 14(c) of the Labour Code), the Committee notes with interest the text of Decree No. 2 of 29 January 1952 of the President of the Republic which declares the Labour Code applicable to the above enterprises, and the text of a decision by the Supreme Court of Justice of 22 July 1954 declaring section 14(c) of the Labour Code inapplicable on the grounds that it is contrary to section 63 of the Political Constitution.

Similarly, with regard to the Committee's request to guarantee the right of trade union leaders to hold meetings on plantations, the Committee notes an administrative order "of compulsory application" adopted by the Ministry of Labour and Social Security on 15 April 1993. The Committee notes that the above order provides that "vigilance shall be increased in all sectors, including plantations, to ensure that the right of association of workers and their trade union leaders is not impeded", with the provision that "in the event that violations are detected, the procedures shall be put into motion (by this is understood the labour inspection services) to apply the sanctions set out in the law".

The Committee also notes with interest two Bills which give effect to requests it had made for trade union organizations, and not just solidarist organizations, to be able to administer compensation funds for dismissed workers (the Bill respecting the occupational capitalization and economic democratization fund), under which the concept of public services for which strikes are prohibited is limited to essential services in the strict sense of the term, namely those the interruption of which could endanger the life, safety or health of the whole or part of the population (the Bill on the statutory system of public employment and civil service, which repeals subsections (a) and (b) of section 369 of the Labour Code, which excessively restricted strikes in the public, agricultural and forestry sectors).

Finally, with regard to the prohibition on foreigners from holding office or exercising authority in trade unions (section 60(2) of the Constitution), the Committee notes that the Government has established a committee in the Ministry of Labour to undertake an exhaustive analysis of this matter and has formally requested the technical assistance of the Office with a view to assisting and guiding the process of modifying the Constitution and finding a solution which is in accordance with ILO principles.

The Committee welcomes the considerable progress which has been made as regards the application of Conventions Nos. 87, 98 and 135 and requests the Government to keep it informed of developments relating to the two above Bills (for which technical assistance has been received from the Office) and the question of the possibility of foreigners being able to hold trade union office.