Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report and the observation made by the Rerum Novarum Confederation of Workers in a communication dated 31 August 2001.

1. Prohibition upon foreign nationals from holding office or exercising authority in trade unions (article 60(2), of the Constitution and section 345(e) of the Labour Code). The Committee notes that Bill No. 13475 (which is currently on the agenda of the Legislative Assembly) amends section 345(e) of the Labour Code so that it no longer provides that the members of the executive board of a trade union must be of Costa Rican nationality, or of Central American origin, or foreign nationals married to a Costa Rican wife and having completed five years of permanent residence in the country; nevertheless, the above Bill provides that the bodies of trade unions must comply with the provisions of Article 60 of the Constitution, which provides that "foreigners are prohibited from exercising direction or authority in unions". The Committee notes that a draft reform of the Constitution, prepared with the assistance of the ILO, had been submitted to the Plenary of the Legislative Assembly in 1998, but that this text does not appear to be on the agenda of the current Legislative Assembly. The Committee draws the Government’s attention to the importance of amending not only section 345 of the Labour Code, but also article 60(2), to abolish the current excessive restrictions on the right of foreign nationals to hold trade union office, which are incompatible with Article 3 of the Convention. The Committee requests the Government to provide information on this matter.

2. The obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Code). The Committee notes with interest that Bill No. 13475 no longer requires the appointment of the executive board each year.

3. Inequality of treatment between solidarist associations and trade unions with regard to the management of compensation funds for dismissed workers. The Committee notes the Workers’ Protection Act of 16 February 2000 and notes with satisfaction that sections 30 and 74 of the Act allow trade union organizations to establish administrators to manage occupational deposit funds and pension funds.

4. Restrictions on the right to strike: (i) necessity to obtain the approval of 60 per cent of the persons who work in the enterprise, workplace or establishment concerned (section 373(c) of the Labour Code); and (ii) prohibition of the right to strike for workers engaged in rail, maritime and air transport enterprises and workers engaged in loading and unloading on docks and quays (section 373(c) of the Labour Code). The Committee notes that on these matters the Government refers to the wording of the ruling by the Constitutional Chamber of 27 February 1998 (which is still awaited) or indicates that the Committee’s recommendations will be considered by the authorities with a view to a possible amendment. The Committee hopes that the Government will transmit the full ruling in question as soon as it is available.

Moreover, the Committee notes that a magistrate of the Supreme Court of Justice indicated that, of the approximately 600 strikes that have occurred over the past 20 or 30 years, a maximum of ten have been declared legal, and that, according to the trade union federations, the procedure for calling a strike may take three years.

The Committee emphasizes that the exercise of the right to strike should not be subject to legal or practical requirements which render its legal exercise very difficult or impossible. The Committee considers that the various points raised are incompatible with the right of worker’s organizations to organize their activities and to formulate their programmes in full freedom, as set out in Article 3 of the Convention, and that these matters need to be given priority by the authorities and the social partners. The Committee requests the Government to provide information in its next report on the measures adopted.

5. Necessity for the Labour Code to reflect the ruling by the Supreme Court of Justice that section 14 of the Labour Code is unconstitutional in excluding from its scope (and therefore from trade union rights) workers in agricultural or stock-raising enterprises which permanently employ no more than five workers. The Committee notes with interest that the March 2001 edition of the Labour Code explicitly acknowledges this ruling that the above provision is unconstitutional.

6. Necessity for Bill No. 13475, in amending section 344 of the Labour Code, to establish a specific short period within which the administrative authority may reach a decision concerning the registration of trade unions, and after which, if no decision has been issued, it is understood that they have obtained legal personality. The Committee notes that the Government has not commented on this matter and requests it to amend section 344 as indicated.

Finally, the Committee has been informed of the establishment of a tripartite committee to examine the Committee’s comments with a view to reaching agreements with the parties on solutions which are acceptable with regard to the matters relating to freedom of association, so that they can be reflected in national law and practice. The Committee emphasizes that the pending matters raise substantial problems with regard to the application of the Convention and hopes that it will be able to note important progress in the near future in both law and practice.

The Committee requests the Government to keep it informed on these matters, including the progress made in processing Bill No. 13475.