Informe provisional - Informe núm. 367, Marzo 2013

1. 603. The complaint is contained in communications from the National Union of Social Security Fund Employees (UNDECA) dated 29 February and 8 May 2012. This organization submitted additional information and new allegations in communications dated 9 and 12 July 2012. The World Federation of Trade Unions (WFTU) supported the complaint in communications dated 6 and 20 March 2012.
2. 604. The Government sent its observations in communications dated 2 October and 5 November 2012.
3. 605. 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. 606. In its communications dated 29 February and 8 May 2012, UNDECA reports that in November 2011, an occupational group of anaesthetists, who work for the Costa Rican Social Security (CCSS) Fund, went on strike. The general aim of this strike was to obtain certain occupational health benefits and better physical working conditions, which would also bring about a substantial improvement in the services provided. They had no alternative but to resort to strike action given the refusal by the CCSS Fund to engage in negotiations on their justified demands. UNDECA adds that two users, to whom attention could not be given, filed amparo proceedings against the authorities of two centres (México Hospital and San Vicente De Paúl Hospital); these proceedings were upheld by the Constitutional Chamber of the Supreme Court under Ruling Nos 17211-2011 and 17212-2011 of 14 December 2011, although the unions concerned were not allowed to take part in the proceedings; moreover, the Constitutional Chamber overstepped its powers by prohibiting the right to strike in essential services, and in hospital services in particular.
2. 607. UNDECA indicates that the first ruling established the following:
   • In witness whereof, the proceeding is upheld. Donald Fernández Morales, as acting Director-General of Mexico Hospital, or whoever occupies the position in his place, is ordered to make the arrangements within his powers to ensure that the plaintiff is admitted into hospital for the surgical treatment of the diagnosed papillary carcinoma within thirty days of the notification of this ruling, under the full responsibility of the treating doctor. The authority in question is warned that, under article 71 of the Constitutional Jurisdiction Act, persons that fail to comply or ensure compliance with a mandatory order handed down in amparo proceedings are liable to imprisonment for three months to two years, or to a fine of twenty to sixty days, provided that the offence is not subject to a higher sanction. The Costa Rican Social Security Fund is ordered to pay the costs and damages caused by the events in question, to be settled in accordance with the administrative ruling. This ruling is to be communicated in person to Donald Fernández Morales, as acting Director-General of México Hospital, or to whoever occupies that office in his place.
3. It also stated:
   • ... this ruling is to be communicated to the whole executive board and to each of the presidents of the trade unions of the Costa Rican Social Security Fund, and to the president of the Costa Rican College of Doctors and Surgeons. One judge dissented, disallowing the amparo proceedings on the grounds that the right to strike in hospital services should not be prohibited through that channel, particularly in view of the lack of legal regulation of labour dispute resolution, and in the absence of a medical opinion endorsing the need to carry out surgery on the plaintiff in the timeframe indicated by the majority.
4. 608. UNDECA adds that the second ruling, No. 17212-2011, handed down a similar sentence to the CCSS Fund, with the same notification orders. One judge dissented, disallowing the amparo proceedings on the grounds that the right to strike in hospital services should not be prohibited through that channel, particularly in view of the lack of legislation on labour dispute resolution.
5. 609. Alongside these rulings, the Justice Department Press Office published the following Constitutional Chamber press release:
   • Under Ruling Nos 2011-017211 of 15.30 and 2011-0172212 of 15.31, of 14 December 2011, the Constitutional Chamber stressed that while the right to strike is a direct consequence of the exercise of freedom of association, article 61 of the Constitution states that the right to strike is subject to limitations in public services, which are to be determined by law. Consequently, article 376, paragraph (d) prohibits strike action in public services that cause serious or immediate prejudice to health, as in the case of clinics and hospitals. Likewise, the Committee on Freedom of Association and experts of the ILO have indicated that strike action may be prohibited in essential public services, in other words, in those services whose interruption would endanger the life, personal safety or health of the population. These criteria were endorsed by a majority in the Chamber, receiving the votes of judges Mr Ginesta Lobo, Mr Cruz Castro, Mr Castillo Víquez, Mr Rueda Leal and Mr Salazar Cambronera, who considered that strike action is prohibited in hospital services, as an essential public service and in view of the protection of the constitutional rights to health and life of the population. In addition, the Chamber indicated that public sector conciliation, arbitration and direct bargaining procedures cannot be governed by common labour laws and regulations, which vary significantly from the public employment system, where the flexibility of principles such as free will and minimum rights does not apply, where the administration is subject to a whole block of regulations and where decisions based on conscience or juries without legal training are not admissible. Breaching this gap through legislative development is not incumbent upon the Constitutional Chamber but on the legislative branch, under the principle that the constitutional judge should not be judge and party to the same cause. Currently, the Legislative Assembly is discussing a draft labour procedure reform aiming to regulate this matter.
6. 610. The press release adds:
   • Nevertheless, until this time, the parties to the dispute, the Costa Rican Social Security Fund and public servants, must attempt to resolve their labour disputes in a way that does not disrupt the continuity of hospital services, which are essential, since their suspension violates fundamental constitutional rights of the highest order, relating to the preservation of that which is most important to humans: life and health. In the cases examined, as a result of the anaesthetists’ strike, the treatment of the two plaintiffs, who suffer from cancer, was suspended and they were not admitted into hospital or operated on on the previously scheduled dates. One judge endorses the majority vote on the grounds that the plaintiffs’ right to health was violated, but she has not made any statement on the legality of strike action in essential public services arguing that this is not the appropriate channel for a ruling on strike action in essential services. One judge dissented, disallowing the amparo proceedings on the grounds that a sentence resulting from amparo proceedings cannot prohibit the right to strike in hospital services, in particular, and as recognized in the resolution, since the legal regulations on alternative means to resolve labour disputes, like this one, are insufficient. Another judge filed an observation.
7. 611. UNDECA indicates that, on the basis of both rulings, the individual amparo proceedings filed by the patients were upheld and, at the same time, a majority vote in the Constitutional Chamber prohibited strike action in essential services and in particular in hospital services.
8. 612. UNDECA provides a number of arguments concluding that the Constitutional Chamber has adopted an interpretation that runs counter to the Constitution and to ILO Conventions in particular, considering that there is still no legislation on public sector dispute resolution mechanisms, whereby public servants do not have the right to collective bargaining.
9. 613. Regarding the rulings by the Constitutional Chamber, UNDECA indicates that amparo proceedings are not the appropriate channel for the prohibition of strike action, especially where public servants have in the past been banned from using voluntary collective labour dispute resolution mechanisms, including direct bargaining. Under the rules in force, amparo proceedings are intended to protect fundamental rights in the case of any act, provision, agreement, resolution, omission or material act that threatens or violates fundamental rights, except for those protected under habeas corpus. The Constitutional Chamber itself has described it as a “highly summary” informal process, strictly aimed at determining whether specific and subjective actions, generally ordered by the administration, have violated any fundamental human right. Amparo proceedings are not an appropriate means of challenging the constitutional nature of laws or legislative provisions, which is an area that is covered by proceedings on the grounds of unconstitutionality (a distinction that has not been observed in this case). Neither is this type of action appropriate for matters of general legality, and the Chamber cannot determine which regulations are applied to a specific case. The scope of amparo proceedings is limited to determining, on a case-by-case basis, whether a given act or omission has violated a fundamental right.
10. 614. The rulings by the Constitutional Chamber, which arbitrarily prohibited the right to strike in essential and hospital services, run counter to article 61 of the Constitution, article 376, paragraph (d), of the Labour Code and are in clear violation of ILO Convention No. 87.
11. 615. UNDECA considers that there is no justification, especially in a democratic system, for sacrificing the right to strike of workers providing hospital services, if it is reasonably possible to preserve that right, albeit with some restriction, without undermining the protection of the fundamental rights to health and life, which are fundamental rights and values protected by the Constitution, but which enjoy the same constitutional recognition as the right to strike. An appropriate solution to the conflict of these interests, which are both protected by the Constitution, is reasonably possible without abolishing the right to strike of public servants providing essential services, through the use of minimum services, which the Constitutional Chamber has unfortunately ignored or rejected in the rulings that are challenged here, and which is consistent with the principles of the ILO.
12. 616. UNDECA adds that the ruling indicates that the Constitutional Chamber cannot turn a blind eye to the fact that the Committee on Freedom of Association has indicated that the prohibition of strikes in public services must be accompanied by the appropriate guarantees to compensate workers for the restrictions to which they are subject. These guarantees include access to appropriate, impartial and rapid conciliation and arbitration proceedings, in which the interested party may participate at every stage (in a previous ruling (Ruling No. 1692-1992) the Constitutional Court declared that public servants do not have the right to conduct economically or socially motivated collective dispute resolution proceedings).
13. 617. UNDECA adds that following a protest march on 26 June 2012 organized by the trade unions under the Internal Fund Workers Front (FIT-CAJA), which UNDECA is a part of, which was aimed at defending the institution, the administrative and medical directors of the Costa Rican Social Protection Fund respectively notified workers, in a communication of 27 June 2012, that immediate salary deductions would be carried out in respect of workers participating in strike action or work stoppages, and indicated the procedure that heads of department should follow to make such deductions. This communication authorizes immediate deductions to workers’ wages with utter disregard for due process and strike action being previously declared an illegality (contrary to the jurisprudence of the Constitutional Chamber of the Supreme Court regarding the private sector).
14. 618. In its communications dated 9 and 12 July 2012, UNDECA reports that on the instructions of the Director of the Dr Carlos Durán Martín clinic, an outlying clinic of the CCSS Fund, communication between UNDECA and workers is being restricted, only allowing them to receive flyers and trade union information and banning any other type of contact or communication, with express orders banning the representatives of the complainant organization from talking to the workers. In particular, on two occasions on 8 and 22 June 2012, the leaders of UNDECA, Ms Elizabeth Centeno Cascante, Ms Marlen Pena Ortega, Mr Arturo Abarca Durán, Mr Roland Quesada and delegates Ms Guadalupe Murillo González and Ms Cinthya Bermúdez Rivera, were removed from the clinic by private security officers. It should be noted that these union members have never tried to enter restricted access areas or to disrupt the normal functioning of public services, making the management’s instructions seem arbitrary.
15. 619. In other workplaces of the CCSS Fund, not only are trade union activities banned, but acts of anti-union persecution are carried out against delegates of various trade union organizations, including UNDECA. In the San Francisco de Asís Hospital, a regional hospital in the city of Grecia, which has unfortunately suffered the full force of the cost-cutting measures imposed by the Board of Directors of the CCSS Fund, UNDECA has played a crucial role in trying to obtain the best possible conditions, with a view to preventing further deterioration in the public services provided. This has not pleased the hospital’s Director-General, who in an act of retaliation against legitimate activities, on 12 June 2012, ordered disciplinary proceedings to be filed against Ms María Luz Alfaro Berrantes, UNDECA delegate in that hospital: “... for the acts reported to this General Directorate, that were carried out on Monday 7th May 2012, during a demonstration organized by a group of neighbourhood women from the Grecia community against the cost saving measures applied by this General Directorate, with the participation of public servant Ms María Luz Alfaro Barrantes, who is a patient care assistant, as trade union representative.”
16. 620. These proceedings were brought against the delegate in question because she participated in a march organized by community women to oppose the cost-cutting measures that have brought the hospital to the verge of collapse.

B. The Government’s reply

1. 621. In its communications of 2 October and 5 November 2012, the Government refers to the allegations of UNDECA, supported by the WFTU, according to which two Constitutional Chamber rulings on amparo proceedings, filed as a result of the strike carried out by a group of anaesthetists on 15 November 2011, run counter to ILO Convention No. 87, in that they arbitrarily restrict the right to strike in essential services, such as hospitals and other health services, and cast doubt as to the regulation of collective bargaining in the public sector. In this regard, the Government indicates that the Constitutional Chamber of the Supreme Court of Justice is legally competent to rule on the constitutionality of other regulations and to interpret any matter brought before it in the light of the Constitution, which makes its decisions binding and valid erga omnes, excepting itself.
2. 622. The Government indicates that the two matters submitted to the Constitutional Chamber and raised in this complaint were filed by users of the CCSS Fund, who apparently considered that their right to access health services had been violated by the paralysis of the medical services, as a result of a strike by a group of anaesthetists on 15 November 2011. On that occasion, the Supreme Court upheld the amparo proceedings on the grounds that they protected the constitutional rights to life and health of the persons affected. These rights are non-disposable and cannot be considered to be either economic or waivable rights under article 52 of the Constitutional Jurisdiction Act. Consequently, the right to life, recognized under article 21 of the Constitution, provides the basis for all the other fundamental rights of the inhabitants of the Republic. This same article provides the basis for the right to health, since life is inconceivable if humans are not guaranteed the minimum conditions for an adequate and harmonious psychological, physical and environmental balance. In this way, any delay in hospitals, clinics and other health care units of the CCSS Fund could have a negative impact on the preservation of the health and life of its users.
3. 623. With regard to the limitations to the right to strike in health services, the Government indicates that in the preamble of Ruling Nos 17211 and 17212 of 2011, on the amparo proceedings that are challenged by the complainant, the Constitutional Chamber established that the restriction of the exercise of the right to strike in hospital services is constitutional, in accordance with the doctrine advocated by the supervisory bodies of the ILO.
4. 624. In these circumstances, the Constitutional Chamber interpreted in the abovementioned rulings sections 375 and 376 of the Labour Code in the light of article 61 of the Constitution, which expressly prohibits the exercise of the right to strike in public services, to be determined by law.
5. 625. Furthermore, according to the Supreme Court of Justice, in its Report No. Ref. 2450-2012 of 6 August 2012, a copy of which is attached, the rulings in question include, in the definition of “public services”, the doctrine advocated by the supervisory bodies of the ILO, establishing that: “essential public services in the hospital sector are understood as those services that if interrupted prevent individuals from accessing health services, in such a way as to endanger legally protected rights, which on a scale of values of human rights in international law and in the Constitution of Costa Rica, occupy a position of supremacy, as is the case of the right to health, to life and personal security”.
6. 626. Likewise, the ILO’s Committee on Freedom of Association has, on a number of occasions, expressed its opinion that hospital services are an essential service. According to the principles that this supervisory body has developed to determine situations in which a strike could be prohibited, the criterion that has to be established is the existence of a clear and impending threat to the life, personal safety or health of the whole or part of the population. In any event, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), establishes that the plan of action of workers’ organizations must respect the law, whereby it would be a reasonable restriction to limit the exercise of the right to strike in those services the interruption of which would endanger the health and life of the population. This concurs with what happened as a result of the doctors’ strike mentioned in this complaint, which clearly caused delays in various surgical procedures, seriously violating key fundamental rights of the population. In this light, according to Report No. PR-39.907-2012 of the Governing Board of the CCSS Fund, the strike in question lasted for 14 days and led to the suspension of previously planned surgery in the case of 2,581 insured patients, as well as generating an average cost for the institution of 21,700,000 colons (CRC) a day.
7. 627. The Constitutional Chamber has interpreted the restriction in the exercise of the right to strike in public services to imply that the workers’ right to defend their interests through strike action must give way when this causes or could cause greater damages than those reported by the strikers in their grievances or demands.
8. 628. An example of the above is Ruling No. 1317-1998 issued at 10.12 a.m. on 27 February 1998, whereby the Constitutional Chamber recognized the convergence between the notion of public services under article 61 of the Constitution and the notion of essential services. In this regard, it stated:
   • It should be recalled that, in the light of the Constitution, there is a difference between freedom of association, understood as the right to form and join trade unions, which applies equally to public servants with both an administrative or statutory relationship with the public services – and to other workers in an employment relationship –; and the right to strike, which is the extreme expression of trade union activity, and which applies with greater limitations, with a view to maintaining essential community services. Restrictions to the right to strike, as an extreme means of applying pressure to achieve trade union aims, should therefore be nothing more than conditions to prevent the disruption of public services, considered to be essential and which the legislator is competent to identify within reason and proportionality.
9. 629. This interpretation is based on articles 191 and 192 of the Constitution, which establish a public employment system that differs in both its nature and characteristics from the system established by common labour law. The general principles pertaining to this employment system, which are not only different from those found in labour law, but can even run counter to these, have distinct consequences.
10. 630. In the abovementioned Ruling No. 1317-1998, the Constitutional Chamber further argues that the right to strike cannot be seen as an absolute right, as indicated in the following extract:
    • ... the right to strike is an indispensable corollary of the right to organize protected by ILO Convention No. 87. The right to strike cannot be considered to be an absolute right; strike action may be subject to a general ban, not only in exceptional circumstances, but it may also be regulated through provisions that impose modalities in the exercise of that fundamental right or restrictions to its exercise. Strikes are considered as the last resort for workers’ organizations in pursuing their labour grievances … In other words, the right to strike is a right for all workers that may be exercised in any sector, but the legislator must determine the cases in which it must not be exercised, as in the case of public services that, due to their nature and social impact, cannot be suspended, discontinued or paralysed without causing large scale serious and immediate damage.
11. 631. Consequently, the allegations presented by the trade union organization in its complaint have no basis in law, since the challenged rulings are in keeping with the Constitution, which indicates that the right to strike is not unlimited, but may be restricted in the case of essential services, when they affect essential legal rights such as the population’s right to life and health. This position is endorsed in a number of decisions of the supervisory bodies of the ILO.
12. 632. Lastly, the Government states that the allegation by the trade union of a ban on collective bargaining in the public sector is both rash and inaccurate; it underlines that the Fund signed an agreement with two trade unions on the wage issue, which provides that the parties will abide by the decision of the labour court. The Government adds that, as the supervisory bodies of the ILO are aware, the right to collective bargaining in positive law in Costa Rica and in national practice, in addition to being an outstanding collective instrument, benefits from a higher level of protection due to its constitutional status. This collective instrument aims to regulate labour conditions and to determine the competence of trade unions to represent workers in negotiating these. In the public sector, collective bargaining is open to all public servants, except for those participating in public management with executive power, in accordance with article 2 of the regulations for the negotiation of collective agreements in the public sector. Evidence of the above is that there are currently 70 collective agreements in force in the public sector according to the dedicated register kept by the Department of Labour Relations of the Ministry of Labour and Social Security.
13. 633. In the light of the arguments of fact and law set forth above, the Government requests the Committee to reject this complaint in full.

C. The Committee’s conclusions

1. 634. The Committee observes that in this complaint the complainant organization, supported by the WFTU, alleges that: (1) as a result of a strike to demand improved conditions of employment carried out in November 2011 by an occupational group of anaesthetists of the CCSS Fund, following the Fund’s refusal to discuss the grievances of these doctors, two patients filed amparo proceedings before the Constitutional Chamber of the Supreme Court against the two hospitals concerned; and (2) the Constitutional Chamber upheld these proceedings, ordering the Fund (employer) to pay damages and arbitrarily banning, without the consultation of the trade unions, strike action in essential services and hospital services in particular, ignoring that the appropriate solution in line with the principles of the ILO would be to recognize the right to strike while demanding the maintenance of minimum services. The complainant organization further criticizes the interpretation of various constitutional and legal regulations regarding the scope of the rulings of the Constitutional Chamber in cases of amparo proceedings, considering that the Constitutional Chamber has not observed these. In this regard, the Committee would like to recall that it is not responsible for assessing the compliance of judicial rules or decisions with a national Constitution.
2. 635. The Committee observes that the complainant organization declares that public servants do not have the right to collective bargaining and that there is currently no regulation of dispute resolution procedures for public servants, in particular conciliation and arbitration proceedings. Lastly, the complainant organization reports that, as a result of a protest march organized by the complainant organization and other trade unions in June 2012, the management of the Fund issued a communication ordering deductions to be made from the wages of workers participating in strike action or work stoppages, regardless of whether the strike had previously been declared illegal.
3. 636. The Committee notes the Government’s statements to the effect that the rulings by the Constitutional Chamber on the amparo proceedings challenged by the complainant organization were issued in accordance with the mandate of that body and are in keeping with the Constitution and the principles of the Committee and of other ILO supervisory bodies, allowing significant restrictions to or even the prohibition of the right to strike in the health sector. The Committee notes that the Government challenges, on the basis of various sentences by the Supreme Court, the complainant’s interpretation of the right to strike in the legislation and in the Constitution, and highlights that the Court indicates that the right to strike is not absolute or unlimited, but that it can be limited in essential services in cases affecting fundamental rights such as the right to life and health of the population and that the restriction of the right to strike in the hospital sector is constitutional. The Committee also notes the Government’s statements regarding the consequences of the strike (suspension of surgery for 2,581 insured patients, extremely high costs, etc.).
4. 637. With regard to the allegations of the non-existence of collective bargaining and the prohibition of the right to strike for public servants, including those in the health sector, under the rulings of the Constitutional Chamber of the Supreme Court, the Committee recalls that it has on many occasions stressed that this right may be restricted or prohibited in the public service only for public servants exercising authority in the name of the State, or in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 576]. However, the Committee also highlighted that “in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented” [see Digest, op. cit., para. 596]. The Committee notes that the Government states that, contrary to the information submitted in the complaint, public servants are entitled to engage in collective bargaining (except for those involved in public administration with executive powers) and points to 70 collective agreements in the public sector. The Committee observes that both itself and the Committee of Experts have taken note of the applicable national rules and regulations and have found that this right exists.
5. 638. The Committee observes, however, that according to this complaint and the rulings mentioned in this case, the development of legislation on dispute resolution mechanisms in the public sector is still pending, and considering the principle indicated in the previous paragraph, it invites the Government, in consultation with the most representative organizations of workers and employers, to present a draft text to the Legislative Assembly.
6. 639. With regard to the wage issue, the Committee notes that the Government provides a copy of an agreement between the Fund and two trade unions which includes a provision to the effect that the parties would abide by the decision of the labour court. Lastly, with regard to the communication on the salary deductions in respect of public servants that participate in strikes or demonstrations, the Committee observes that the Government has not replied to this allegation. However, the Committee recalls the principle that “salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles” [see Digest, op. cit., para. 654]. This principle on salary deductions also applies to time spent in demonstrations during working hours.
7. 640. The Committee also notes the allegations made by the complainant regarding the restrictions imposed on communication between trade union leaders and workers at the Dr Carlos Durán Martín clinic and, in particular, the intervention of private security to remove four UNDECA leaders and two delegates from the clinic. The Committee notes that the complainant also reports that, on 12 June 2012, the Director-General of the San Francisco de Asís Hospital ordered that disciplinary proceedings be brought against trade union delegate Ms Maria Luz Alfaro Barrantes in relation to her participation in a demonstration against the cost-cutting measures applied by the hospital. The Committee observes that these allegations were submitted in subsequent communications to the initial complaint, and notes that the Government has indicated that it is preparing its reply and hopes that this will be submitted without delay.