Informe definitivo - Informe núm. 375, Junio 2015

1. 136. The complaint is contained in a communication from the Union of Employees of the University of Costa Rica (SINDEU) dated 18 June 2014. The union submitted additional information in a communication dated 22 August 2014.
2. 137. The Government sent further observations in a communication dated 28 January 2015.
3. 138. 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. 139. In its communication dated 18 June 2014, SINDEU alleges that the University of Costa Rica (UCR), a public university, signed an agreement with the Costa Rican Social Security Fund (CCSS) in 2002, which was renewed on various occasions between January 2003 and 14 February 2014 and covered the administration of the basic integrated health-care teams (EBAIS), which had as beneficiaries various communities across the country, initially through the University of Costa Rica Research Foundation (FUNDEVI) – a private organization from the same university – and then directly through the University of Costa Rica. On the final day, 14 February 2014, the university discontinued its administration of the Comprehensive Health-Care Programme (PAIS), resulting in the dismissal of 455 workers, including three members of the executive board of SINDEU, Mr Ricardo Peralta Rivera (doctor), Ms Ana Lucía Solís López (assistant nurse) and Ms Dania Sánchez Rojas (pharmacy technician), who were employees on the PAIS programme and had been elected to the board on 1 July 2013.
2. 140. According to the allegations, these officials had been elected by the members of the union not to be union leaders of the PAIS programme, but union leaders of SINDEU. As such, they are due to perform their institutional union work – and not only work on the PAIS programme – until 30 June 2015. Accordingly, as stated by the complainant, although the PAIS programme finished on 14 February 2014, the university continues as an active institution and remains their employer and, pursuant to clause 67 of the collective labour agreement signed on 26 March 2013 regarding immunity from dismissal, they are granted trade union immunity until “one year after their trade union duties end”. This clause establishes immunity from dismissal for workers on the executive board, who “may be dismissed only if proof is provided before the Industrial Relations Board and the Arbitration Tribunal of any of the grounds set forth in article 81 of the Labour Code”. The immunity from dismissal applies for “up to one year after the day on which their [trade union] duties end”.
3. 141. The complainant trade union states that the protection of union leaders started in 2012 from the moment that they ran for election to the SINDEU executive board, a process which began on 17 April 2013.
4. 142. The complainant trade union indicates that the employer’s meeting with the trade union representatives on 2 May 2014 was, regrettably, only held after a ruling by the university legal office that there was no need to resolve the three union leaders’ situation.
5. 143. During the meeting, the trade union representatives pointed out to the Rector that the ruling had not taken into account the lack of consultations with the Ministry of Labour and Social Security and the priority in recruitment that should be given to the trade union leaders. The complainant trade union emphasizes that Costa Rica has ratified the Workers’ Representatives Convention, 1971 (No. 135), which stipulates that: “workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements”. In addition, the Workers’ Representatives Recommendation, 1971 (No. 143), in support of this Convention, includes among the measures to protect trade union leaders, the “requirement of consultation with, an advisory opinion from, or agreement of an independent body, public or private, or a joint body, before the dismissal of a workers’ representative becomes final” and, “recognition of a priority to be given to workers’ representatives with regard to their retention in employment in case of reduction of the workforce”. The protection of the workers’ representatives “should also apply to workers who are candidates, or have been nominated as candidates through such appropriate procedures as may exist, for election or appointment as workers’ representatives”.
6. 144. The complainant trade union alleges that the leaders Mr Ricardo Peralta Rivera, Ms Ana Lucía Solís López and Ms Dania Sánchez Rojas took part, in vain, respectively in 8, 10 and 20 recruitment exercises or competitions but were unsuccessful because of the employer’s lack of goodwill and because the employer did not give them priority at the time of the recruitment. The complainant trade union points out that the employer has the option of giving direct contracts for six months or less, as set out in paragraphs (a) and (c) of article 16 of the current collective labour agreement, but the employer did not pursue these options.
7. 145. In its communication dated 22 August 2014, the complainant trade union attached a communication from the Rector’s office of the University dated 18 June 2014, repeatedly stating that the reason for terminating the labour relations of the three trade union leaders was the closure of the PAIS programme and recalling that the necessary actions had been taken to allow the officials of the PAIS programme to take part in the university competitions and that, the communication continues, to date they had not been selected for various reasons, such as failure to meet the requirements.

B. The Government’s reply

1. 146. In its communication dated 28 January 2015, the Government indicates that, in its complaint, SINDEU alleges that three trade union leaders had been dismissed following the expiry of the agreement between the UCR and the CCSS on the administration of EBAIS. The agreement had been effective between January 2003 and 14 February 2014.
2. 147. The Government summarizes the position of the Rector’s office, explaining that the main points contained in the agreement mentioned above may be set out as follows: the principal aim of the employment was for the provision, administration and management of comprehensive health-care services for the communities of Montes de Oca, Curridabat and San Juan, San Diego, Concepción and San Ramón de Tres Ríos. The UCR was required to ensure the organization, provision and quality of the services, as defined by the CCSS in various technical documents, in order to ensure better coverage, efficiency and effectiveness.
3. 148. The UCR had the role of carrying out health promotion, prevention, treatment and rehabilitation activities under the basic package for primary level health care, including medical services, and laboratory work in clinical, pharmaceutical and dental fields under the proposed conditions. It was agreed to limit the instrument in time to a five-year period.
4. 149. As stated by the complainant trade union, the UCR finished managing the PAIS programme in February 2014. As a consequence of the termination of the aforementioned agreement, the staff contracted by the university under the PAIS programme ended their duties. As, however, the workers themselves were not responsible for this termination, the UCR agreed that all appropriate compensation should be paid to them. In view of the above, the UCR considers that the dismissals do not contravene national and international regulations and did not in any way relate to the positions held by the abovementioned officials as union leaders, but are exclusively a consequence of the termination of the contract and the final closure of the PAIS programme. Accordingly, this was not a matter of the UCR taking a decision to close the PAIS programme without considering the rights of the unionized workers, but rather that the closure affected all employees on the programme in equal measure and they were, furthermore, compensated for all labour-related requirements.
5. 150. Regarding the legality of dismissing workers, including trade union leaders, the Second Chamber of the Supreme Court of Justice indicated that “...their inclusion in this group of dismissals is justifiable provided that there exists, as mentioned, an objective reason for it (articles 132 and 139 of the General Public Administration Law)”.
6. 151. The employer’s representative of the UCR states in report No. R-5872-2014 that the trade union was aware, since 2012, of the date on which the programme was ending. In this regard, the extensions granted to this contract were aimed at transferring the EBAIS programmes administered by the UCR-PAIS programme to the CCSS or to the body which the university assigned to do the recruitment. The intention of the trade union leaders involved to join together, from the point of view of the employer’s representative, is a way of making the university retain them in their posts despite the closure, by invoking the special protection that they enjoy under their trade union immunity.
7. 152. The Government points out that the university has emphasized that, since the announcement of the final closure of the PAIS programme and until the handover was complete, it had held regular meetings with SINDEU, as well as negotiations on the matter. The trade union nevertheless called a strike on the grounds, in particular, of the following points: (1) opposition to the termination of the CCSS-UCR-PAIS contract; (2) the degradation in the quality of life of the users in the communities served following the closure of the programme and also the dismissals procedure; (3) the irregular way in which the CCSS supposedly went about handling the new direct recruitment (2013CD-000061-05101); and (4) the awarding of the contract by the CCSS to the Hospital UNIBE SA for 36 EBAIS, with the closure of nine EBAIS. On this occasion SINDEU also requested the UCR to guarantee the jobs of the 450 workers and to cancel the awarding of the contract for the 36 EBAIS located in the cantons of Curridabat, Montes de Oca and La Unión.
8. 153. As expressed in the report of the UCR, the strike movement was formed illegally and without justification. On 11 November 2013, many workers stopped the provision of health-care services and only nine of the 45 EBAIS worked on that day. A number of UCR officials conducted an inspection into EBAIS that were not working and discovered that the facilities had been chained and locked up. Moreover, according to the official records of these events, the main entrances had been sealed and so action had to be taken to gain access to these locations.
9. 154. Subsequently, SINDEU and UCR representatives held a meeting on 13 November 2013, in which the trade union agreed to call off the strike and for the workers to return to work at the various EBAIS, although the trade union failed to comply with the agreement.
10. 155. The Rector of the UCR states that the university endeavoured to act in a responsible manner at all times, respecting each of the agreements which it had made with the complainant trade union, and at no time restricted the union rights of the members of the SINDEU executive board or the special status which these rights entailed.
11. 156. In its resolution No. 073-2014, the Employment Tribunal of the Second Judicial Circuit of San José upheld the ruling that the strike was illegal and confirmed the judgement of the Labour Court of 22 November 2014, which it had handed down in the EBAIS of Tirrases, Curridabat, Cipreses and Guayabos, Granadilla de Curridabat, San Rafael, Mercedes, Vargas Araya, Lourdes and San Pedro.
12. 157. Moreover, when the CCSS filed a request for an interim measure to compel the UCR to continue offering the services, the Administrative Disputes Tribunal handed down judgement No. 620-2013-T of 22 March 2013, declaring as follows:
    • ... It therefore appears at the very least unreasonable and even rash, in the view of this judge, that the Fund [CCSS] is seeking an interim measure to constrain the University of Costa Rica to continue offering an essential public service owned by the CCSS and not the university when it has known for at least one year of the university’s intentions and financial reasons and also that it should insist on the service being provided by the UCR on terms and conditions that the CCSS deems fit, even though it is aware that the costs recorded by the university services are accurate and considerably higher and recognized as such by the CCSS. On the grounds of the effects on the health of the insured parties (...), it appears that the CCSS, in the view of this judge and based on an analysis of the evidence submitted, is aiming to constrain the UCR to provide a service on loss-making conditions, outside the framework of the agreements signed between the parties themselves, and despite recognizing that the costs are real, in an attempt to make up for its administrative inactivity over the course of at least one year and its failure to plan ahead, so as to guarantee the provision of health services which are the obligation of the CCSS and not of the UCR...
13. 158. The above shows that the institutional decision of the UCR was never intended to discriminate against the trade union representatives and that this was not a discriminatory dismissal on the basis of their status.
14. 159. In this context, since it was not a matter of reorganizing the PAIS programme – in which case an assessment could have been made of which people to keep on and under which circumstances preference could have been given to the union leaders if possible – the closure involved all staff.
15. 160. The trade union is therefore not correct in claiming breach of the protection afforded under trade union immunity to Mr Ricardo Peralta Rivera, Ms Ana Lucía Solís López and Ms Dania Sánchez Rojas, who had been elected to the executive board of SINDEU (no longer in the PAIS programme), precisely because the dismissals did not represent a decision by the higher authorities of the UCR but occurred when the programme in question definitively closed, a situation which affected all workers, including those appointed as union leaders.
16. 161. Nevertheless, the fact that the officials in question were members of the SINDEU executive board was taken into consideration in the agreement made around the negotiating table between the UCR and SINDEU to call off the strike movement of the employees on the PAIS programme, and a provisional article was subsequently included enabling these officials to take part in various internal competitions under conditions identical to those of the other university officials and for a specific time period (from 15 February 2014 to 13 February 2015).
17. 162. It should be clarified, however, that none of the university’s higher administrative offices interfere in the internal competitions of the various sections, which select their own officials in accordance with the criteria set out in relevant regulations, or in the consideration of the suitability of the candidates being assessed.
18. 163. The above demonstrates the willingness of the university authorities to promote opportunities and reduce the harm that may have been caused to the officials in question, obviously within the limits of independence and impartiality which university offices must respect when recruiting staff for the university.
19. 164. Seen from this perspective, this case demonstrates the good faith of the university authorities and the efforts being made in the country to keep spaces of dialogue with the trade unions open and to ensure that, in their day-to-day activities, institutions keep in line with the provisions of the ILO international conventions ratified by Costa Rica.
20. 165. Based on the arguments of fact and law set out, the Government of Costa Rica requests the Committee on Freedom of Association to set aside the complaint lodged in all its aspects.

C. The Committee’s conclusions

1. 166. The Committee observes that, in the present complaint, the complainant, SINDEU, claims that ILO Convention No. 135, ratified by Costa Rica, and the current collective agreement were violated through the dismissal of three members of its executive board, and that the PAIS programme in which the three worked as doctor, assistant nurse and pharmacy technician was terminated following successive renewals of an agreement between the university and the CCSS (which led to the PAIS health-care programme for various communities in the country). Although the three persons in question had the opportunity to enter competitions, they were unsuccessful, according to the complainant, because of the employer’s lack of goodwill. The complainant trade union alleges that the employer procrastinated when the trade union requested consideration of the case.
2. 167. The Committee notes the Government’s statements to the effect that: (1) the university discontinued the PAIS programme in February 2014 and as a consequence of the final closure of the programme (and the termination of the agreement, between the university and the partner, the CCSS, which had initiated the programme), all the employees (including the three union leaders mentioned by the complainant trade union), had completed their activities and that, consequently, this does not constitute anti-union discrimination and the termination of the work of the three individuals in question was not occasioned by their status as leaders; (2) as the workers themselves were not responsible for this termination, the UCR went ahead and paid all appropriate compensation; (3) the complainant trade union was aware since 2012 of the date on which the programme was ending; the extensions that were signed thereafter aimed to transfer the administrative services to the CCSS or to the body assigned by the university to carry out the recruitment; (4) the intention of the trade union leaders involved to join together, from the point of view of the employer’s representative, is a way of making the university retain them in their posts despite the closure; (5) in response to the allegation of delays in the dialogue, the university indicates that, since the announcement of the final closure of the PAIS programme and until the handover was complete, it held regular meetings with SINDEU, as well as negotiations on the matter; the trade union nevertheless called a strike in 2013 opposing the handover of the services, and this was declared illegal by the judicial authorities; (6) after the strike, the university respected each of the agreements which it had made with the complainant trade union; and (7) the fact that the officials in question (the three union leaders) were members of the SINDEU executive board was taken into consideration in the agreement made around the negotiating table between the university and SINDEU to call off the strike movement, and a provisional article was subsequently included, enabling these officials to take part in various internal competitions under conditions identical to those of the other university officials and for a specific time period (from 15 February 2014 to 13 February 2015); however, faced with the allegation of a lack of good will by the rector’s office to resolve the problem through the competitions, the university states that its higher administrative offices do not interfere in the internal competitions of the various sections, which select their own officials in accordance with the criteria set out in relevant regulations.
3. 168. The Committee observes that, in the current case, the dismissal of the three union leaders of the complainant trade union was not motivated by their status as union leaders or their trade union activities, but observes that the complainant trade union also defends its application for the three leaders to be reinstated by invoking clause 67 of the current collective agreement which covers the immunity of the university union leaders.
4. 169. In this regard, the Committee observes that clause 67 of the current collective agreement (reproduced in the complainant’s allegations) stipulates that members of the trade union’s executive board may only be dismissed for reasons covered in article 81 of the Labour Code if proof is provided before the Industrial Relations Board and the Arbitration Tribunal, and that their immunity from dismissal protects them for up to one year after the day on which their trade union duties end. On these points, the Committee observes that the Government did not communicate that this procedure has been followed in the present case or how long the immunity lasts. In light of the above, the Committee requests the Government to ensure that the provisions contained in the collective agreement and the November 2013 agreement are fully respected.