Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

I. The Committee notes the Government’s observations of 22 April 2002 in response to a letter of the Rerum Novarum Confederation of Workers raising a number of points concerning the application of the Convention.

Rerum Novarum asserts that the Government of Costa Rica has failed to comply with Article 29 of the Convention by ignoring decision No. 6842-90 of 1999 in which the Constitutional Court ruled that "the Convention applies to persons having contributed for 20 years to the scheme to which they belong". The Rerum Novarum further asserts that the failure to apply that decision means that workers have to complain to the competent courts, where procedure is so slow that entitlement to retirement pension is inoperative.

In reply, the Government endorses what the Social Security Fund of Costa Rica (CCSS) said in a report of 10 January 2002, namely that Rerum Novarum’s complaint "lacks any basis in law and rests on a misconstruction of Article 29 of the Convention and a misappreciation of the Constitutional Court’s decisions". According to that report, no provision of the Convention establishes that 20 years of contributions to a scheme gives entitlement to old-age pension if other requirements set by the applicable rules, such as minimum age, are not fulfilled.

The Committee notes the Government’s reply to the comments by Rerum Novarum. It points out in this connection that under Article 26, paragraphs 1 and 2, of the Convention, a minimum age may be prescribed for entitlement to old-age benefit, but may not be more than 65 years.

In a letter of 24 June 2003, referring to article 19, paragraph 8, of the ILO Constitution, Rerum Novarum asked whether "a literal interpretation of a Convention should take precedence over a decision granting rights which are more favourable to the beneficiaries of a pension scheme". The Committee recalls in this connection that article 19, paragraph 8, of the ILO Constitution provides that: "In no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation."

In the Committee’s view, however, decision No. 6842-90 of 1999, to which Rerum Novarum refers, has no bearing on the application of the Convention since it refers to provisions (Article 27, paragraph (c), and Article 29, paragraph (a)) that apply to universal, non-contributory schemes and are therefore irrelevant to schemes financed by contributions, as is the case in Costa Rica.

II. The Committee notes the information supplied by the Government in its last report.

1. In its previous comments the Committee pointed out that the Regulation of 29 June 1995 on invalidity, old-age and survivors’ insurance did not appear to provide, in accordance with Part V, Article 29, paragraph 2(a), of the Convention, for payment of a reduced old-age benefit to a person protected who has completed the qualifying period of 15 years of contributions. In its report the Government merely states that in its ruling on the application of the Convention the Constitutional Court, whose decisions are binding and apply erga omnes, took the period of contribution as a basis and applied, pursuant to Administrative Directive No. 001-2000, a period of 20 years for eligibility. The Committee takes note of this information. It points out to the Government that the purpose of Article 29, paragraph 2(b), of the Convention is to ensure that where payment of a benefit is conditional upon a minimum period of contribution or employment, as is the case in Costa Rica, persons protected who have completed in accordance with prescribed rules a qualifying period of 15 years of contribution or employment are entitled to a benefit which is reduced in relation to the pension calculated pursuant to Article 29, paragraph 1, of the Convention. The Committee requests the Government to indicate the measures it is planning to adopt in order to ensure, in accordance with Article 29, paragraph 2(a), of the Convention, that a reduced old-age pension is paid to a person protected who has completed 15 years of contribution.

2. In its previous comments the Committee requested information on the impact of the Workers’ Protection Act, adopted on 24 January 2000, on the application of the Convention. The Committee notes that little specific information is available because the Act was passed only recently. It notes, however, that regulations to implement the Act came into force on 24 April 2001. It also notes the information on the number of members of each of the pension funds. It asks the Government to continue to provide information on the operation of the pension funds, including statistics on commissions, profits and the number of members.

III. Further to its previous comments, the Committee notes that the Government’s report contains no reply to most of the questions raised. It is therefore bound to raise these matters again:

1. With reference to its previous comments the Committee notes once again that the Government’s report does not contain the information required by the report form under Title VI, Article 65, of the Convention. So that it can assess the real incidence of pension increases on changes in the general level of earnings or the cost of living index, the Committee again asks the Government to indicate whether the pensions have been revalued, and, if so, to provide information on the cost of living index, earnings and benefits in respect of a single period.

2. Part VI (Employment injury and occupational illness benefit), Articles 34, 36 and 38 of the Convention (in conjunction with Article 69). In its previous comments the Committee requested the Government to take the necessary steps to amend sections 218, 228 to 232, and sections 237 to 239 and 243 of the Occupational Risks Act, No. 6727 of 1982, so as to bring all these provisions into line with the Convention with regard to: (a) the nature of medical care, which must correspond to the provisions of Article 34 of the Convention and be provided free of charge throughout the contingency (i.e. until recovery or the stabilization of the person’s invalidity); (b) the grant of cash benefits, also throughout the contingency, in the event of minor or partial permanent disability and in the event of death. In both cases these benefits are paid under the abovementioned provisions of Act No. 6727 for a period of five or ten years, depending on the circumstances, whereas the Convention stipulates that they must be provided to the disabled person for life and to dependents for as long as they fulfil the conditions prescribed under national laws.

The Government supplied in this connection a draft amendment to Title IV of Act No. 6727, published on Monday, 18 December 2000 in the Diario Oficial La Gaceta No. 242. The Committee notes with regret, however, that as regards to the abovementioned provisions of Act No. 6727 of 1982, the draft makes no amendment in respect of the matters to which the Committee has been drawing attention for several years. It therefore hopes that the Government will take the necessary steps in the near future to bring the legislation into line with Articles 34, 36 and 38 of the Convention.

The Committee would also be grateful if the Government would supply detailed information on the questions raised in a direct request.