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

The Committee notes the Government’s report.

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 noted previously 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 "foreign nationals are prohibited from exercising direction or authority in unions". The Committee noted 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 drew the Government’s attention to the importance of amending not only section 345 of the Labour Code, but also article 60(2) of the Constitution 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 notes that, according to its report, the Government has forwarded a copy of the Committee’s comments to the President of the Legislative Assembly for information and the corresponding action. The Committee also notes that Bill No. 13475 is still on the agenda of the Legislative Assembly. The Committee requests the Government to report any developments at the legislative and/or constitutional level to guarantee the trade union rights of foreign nationals.

2. The obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee notes with interest that Bill No. 13475 no longer requires the appointment of the executive board each year. The Committee requests the Government to report on developments in the processing of the above Bill.

3. 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 the Government has provided the text of the ruling by the Constitutional Chamber of the Supreme Court of Justice of 27 February 1998 declaring the above figure of 60 per cent to be constitutional. The Committee notes that, according the Government, based on the case law of the Supreme Court, the only prohibition of strikes that persists concerns essential services the interruption of which could endanger the life, personal safety or health of the whole or part of the population.

The Committee emphasizes that the exercise of the right to strike should not be subjected to legal or practical requirements which make its lawful exercise very difficult or impossible. The Committee considers that the various points raised are incompatible with the right of workers’ organizations to organize their activities and to formulate their programmes in full freedom, as set out in Article 3 of the Convention. The Committee requests the Government to take measures with a view to the amendment of the legislation to reduce the percentage of workers required to call a strike and to guarantee clearly that a strike may be called by workers in rail, maritime and air transport enterprises.

The Committee notes Directive No. 28 of the Executive Authority, dated 15 September 2003, issued in relation to a strike, which considers as essential services oil refineries and ports and orders the authorities to take the necessary measures to maintain the provision of the above services.

The Committee emphasizes that the above services are not essential services in the strict sense of the term and that the exercise of the right to strike should be guaranteed in such services, without it being possible, for example, to replace striking workers by other workers. The Committee trusts that in future the Government will not have recourse to directives of this type in non-essential services.

In its previous observation, the Committee also noted that a magistrate of the Supreme Court of Justice observed in ruling No. 16-2000 of the Constitutional Chamber that of the approximately 600 strikes that have occurred over the past 20 or 30 years, a maximum of ten have been declared legal. The Committee notes that case law has now clarified the judicial procedures relating to the lawful or unlawful nature of strikes and that hearings are currently held of the trade union organizations concerned within short periods of time. The Committee requests the Government to provide information on the proportion of strikes declared unlawful over the past two years, with an indication of the sectors concerned.

4. Necessity for Bill No. 13475, in amending section 344 of the Labour Code, to establish a 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 the Government’s statement that, in practice and in accordance with the law, the administrative bodies reach a decision as soon as possible and in any event after no more than one month (after which, the assumption of an affirmative decision prevails in the event of the silence of the administration). The Committee requests that section 344 be amended to establish a specific short period.

5. Finally, the Committee notes that the Government has submitted its comments to the Higher Labour Council (a national tripartite body) with a view to their analysis by the commission responsible for examining draft labour legislation. 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 in this respect.