Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the Government’s report and the observations made by the Public and Private Enterprise Workers’ Union (SITEPP) and the International Trade Union Confederation (ITUC), dated 21 May and 28 August 2007, on the application of the Convention. The Committee also notes the report of the high‑level technical assistance mission which visited San José from 2 to 6 October 2006 in the context of Convention No. 98.

1. Prohibition upon foreigners from holding office or exercising authority in trade unions (article 60, second paragraph, of the Constitution and section 345(e) of the Labour Code). The Committee noted previously that Bill No. 13475 (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 Bill provides that the bodies of trade unions must comply with the provisions of article 60 of the Constitution, which provide that “foreigners are barred from positions of management or authority in trade unions”. The Committee noted previously 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 it appears not to be on the current agenda of the 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, second paragraph, of the Constitution in order to abolish the excessive restrictions that are currently placed on the right of foreign nationals to hold trade union office, which are inconsistent with Article 3 of the Convention.

2. Obligation for the trade union assembly to appoint the executive board each year (section 346(a) of the Labour Code). The Committee noted previously that Bill No. 13475 no longer establishes a requirement for the executive board to be appointed each year.

3. Restrictions on the right to strike: (i) requirement 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 previously noted with interest that, according to the Government, on 25 August 2005 the Judiciary referred to the Executive for submission to the Legislative Assembly a Bill on the reform of labour procedures, which benefited from ILO technical assistance. The Committee noted that, according to the Government, the above Bill takes into account the ruling of 27 February 1998 by the Constitutional Chamber and the recommendations of the Committee on Freedom of Association, and has been endorsed by the trade union organizations and employers’ associations, except with regard to certain provisions. The Committee observed that the Bill:

–           proposes 40 per cent of workers in order to call a strike (the employers’ associations rejected this percentage, citing the principle of democratic participation);

–           the right to strike is restricted only in essential services in the strict sense of the term, although these include the loading and unloading of perishable goods in ports; transport is considered to be an essential service only as long as the journey has not been completed;

–           strikes may no longer be deemed unlawful before they have occurred;

–           arbitration is introduced for disputes in essential services;

–           a special and very short summary procedure is introduced for workers with trade union immunity.

Moreover, in a direct request, the Committee observed that the Bill establishes a requirement for 40 per cent of the workers in order to call a strike and subjects strikes to a limit of 45 calendar days (after which arbitration is compulsory).

Furthermore, with regard to the right to strike, the Committee noted previously that a magistrate of the Supreme Court of Justice had indicated that of the 600 or so strikes that had occurred over the past 20 or 30 years, no more than ten had been declared lawful. Furthermore, according to the trade union federations, the procedure to set a strike in motion could last up to three years.

Need for Bill No. 13475, in amending section 344 of the Labour Code, to establish a specific and short period within which the administrative authority is to reach a decision on the registration of trade unions and after which, in the absence of a decision, legal personality is deemed to have been obtained. The Committee notes the Government’s indication that in practice registration applications are processed without delay and, if they fall short of documentary requirements, applicants are asked to remedy the matter and are entitled to appeal. The Department of Trade Union Organizations has 15 days within which to respond and, if it issues a favourable report within that period, the Ministry of Labour issues its decision as soon as possible thereafter and in any event within one month of the report being issued. The Committee requested the Government to have these deadlines established explicitly in Bill No. 13475.

The Committee notes that in its report the Government: (1) expresses its complete readiness and will to resolve the problems referred to and reiterates the statements made in its report in 2005; (2) has supported in the Legislative Assembly a draft reform of the Constitution formulated with the technical assistance of the ILO to overcome the prohibition on foreign nationals from having access to trade union office, and forwarded the comments of the Committee of Experts to the President of the Legislative Assembly; (3) in practice, the Ministry of Labour guarantees the full autonomy of trade union organizations to determine the duration of the mandate of trade union executive boards and the amendment of the legislation on this point is contained in Bill No. 13475; (4) with regard to the restrictions on the right to strike, the Bill to reform labour procedures (No. 15990) is undergoing the legislative process and the Government has convened a forum, with ILO assistance and with the participation of the authorities and the social partners, with a view to achieving consensus; Plenary Accord (Supreme Court of Justice) No. 16-2000 determines the judicial body competent as the depository of strike notifications, and the time scale and appeal procedures (very rapid) to which such a procedure is subject; and (5) with regard to the need to establish a specific and short period of time for the administration to issue an opinion on the registration of trade unions, in practice this problem has been resolved (decisions relating to administrative appeal procedures have to be notified within 15 days); nevertheless, a copy of the Committee’s comment has been forwarded to the President of the Legislative Commission which is responsible for the analysis of Bill No. 13475.

The Committee notes the initiatives taken by the high-level mission with a view to expediting the draft texts submitted to the Legislative Assembly on the matters raised by the Committee of Experts in the context of Convention No. 98. It notes with interest that, when attending a special session of the Higher Labour Council (a dialogue body composed of some of the most important representatives of trade unions and employers, and the Minister of Labour), the mission consulted its members on whether they would be prepared to conclude an agreement to facilitate the adoption of the Bill to reform labour procedure, call for the establishment of a joint commission in the National Assembly to agree on aspects of this Bill on which divergencies persist and subsequently consider facilitating other legislative texts also related to matters falling within the terms of reference of the mission. This agreement was concluded as follows: it was agreed unanimously to call on the Legislative Assembly to establish a joint commission with the technical assistance of the ILO to examine the Bill to reform labour procedure. It was also resolved that the Council would examine the other draft texts pending on labour matters with a view to studying them and facilitating their passage to the extent to which consensus was achieved. The Minister proposed that the request to the Assembly should be formulated in a joint note by the Executive, the Judiciary and the Higher Labour Council. The Minister undertook to seek the rapid examination of the Bill to reform labour procedure, the establishment of the joint commission and, finally, the agreement of the President of the Republic to receive the members of the Higher Labour Council.

The Committee hopes that the above joint commission in the National Assembly will be established without delay and will address all the pending matters. The Committee requests the Government to keep it informed in this respect. The Committee notes that the Government has requested the technical assistance of the ILO to ascertain the conformity of the Bill to reform labour procedure (No. 15990) with the principles of Conventions Nos 87 and 98 and hopes that such assistance will be provided as soon as possible.

The Committee notes that the SITEPP indicates that the unionization rate in the country is only 2.5 per cent in the private sector and that the commitments made to the ILO over many years relating to the draft legislation submitted to the Legislative Assembly have only been vain promises. The SITEPP refers in particular to matters relating to the application of Convention No. 98. The Committee requests the Government to provide its comments on the observations made by the ITUC relating to the application of the Convention, and recalls that the legislative issues referred to concern a series of issues relating to the application of the Convention in practice. The Committee emphasizes that certain of these comments refer to acts of violence against trade union premises and death threats against a trade union leader and it requests the Government to order the appropriate investigations and to keep it informed in this respect. 

The Committee emphasizes once again that the matters pending raise important issues relating to the application of the Convention. Taking into account the various ILO missions that have visited the country over the years and the gravity of the problems, it hopes to be in a position to note substantial progress in the near future in both law and practice. The Committee requests the Government to keep it informed in this respect.