Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Articles 6 and 9 of the Convention. Prohibition on limiting the freedom of workers to dispose of their wages. Prohibition on any deduction from wages for the purpose of obtaining or retaining employment. The Committee notes the comments from the Union of Workers of the Ministry of Finance and the National Customs Service (SITRAHSAN) – previously called the Union of Customs Workers – dated 17 May 2008 and also the Government’s reply received on 29 April 2009. SITRAHSAN alleged that the Government, represented by the Ministry of Finance, and the Directorate-General of Customs breached the provisions of Articles 6 and 9 of the Convention inasmuch as the workers of SITRAHSAN, aware that their jobs were at risk, had been obliged to take out an insurance policy (poliza de fidelidad) vis-à-vis the State in order to retain them. SITRAHSAN underlined the fact that the insurance policy in question should have been taken out by the employer and not by the workers themselves, as provided for by the Act on cooperative associations in Costa Rica and as done by all private enterprises.

The Government states in its reply that the Ministry of Finance adopted Directive DAF-01-2008 concerning the obligations of officials of the Ministry of Finance. This directive was the subject of an appeal to have it quashed before the civil court, which rejected the appeal. The Government adds that this was not an unfounded unilateral decision on the part of the Ministry aimed at reducing officials’ salaries but a decision taken in strict application of the national legislation in force. The abovementioned Directive was adopted pursuant to section 13 of Act No. 8131 concerning financial administration and public budgets and section 21 of Act No. 8422 against corruption and unlawful enrichment. The Committee notes that section 13 of Act No. 8131 provides that any official responsible for collecting or managing public funds must pay a security out of his own pocket to the public treasury in order to ensure the full discharge of his duties and obligations. Section 21 of Act No. 8422 establishes the list of persons who are obliged to make a sworn declaration concerning their financial situation, and these include customs employees.

The Committee also understands that a number of public institutions – especially the Electricity Board of Costa Rica, Editorial Costa Rica and the National Council for Scientific and Technological Research – have issued regulations pursuant to section 13 of Act No. 8131 governing the guarantees to be provided by officials, namely the insurance policy which the latter must take out with the National Insurance Institute.

While noting that these provisions aim to prevent any risk of corruption in the public administration, the Committee recalls that Article 6 of the Convention prohibits the employer from limiting in any manner the freedom of the worker to dispose of his wages, and is concerned by the question of whether the obligation to pay an insurance premium out of his own pocket might contravene this provision of the Convention. The Committee refers to paragraph 178 of its General Survey of 2003 on protection of wages, in which it considers that the pressures exerted on workers to make contributions to certain funds are of a nature to restrict the freedom of workers to dispose of their wages. Similarly, Article 9 of the Convention prohibits any deduction on wages for the purpose of obtaining or retaining employment. In the present case, the Committee expresses its concern whether, even if there is not an actual deduction from wages, the obligation to take out an insurance means loss of employment for any person failing to take out the insurance and retention of employment for persons who take out insurance.

In order to have a better understanding of the scope of the provisions in question and to evaluate their compatibility with the Convention, the Committee requests the Government to provide further information, stating in particular: (i) whether the obligation to take out an insurance policy forms part of the contractual requirements of which officials are informed at the time the offer of employment is made; (ii) the number of officials who have taken out, or refused to take out, an insurance policy; (iii) the consequences of any refusal by officials to take out the said insurance policy; and (iv) whether all officials are obliged to take out an insurance policy even in the absence of specific regulations adopted by the institution which employs them, pursuant to section 13 of Act No. 8131 concerning financial administration and public budgets.

The Committee also refers once again to its previous observations and requests the Government to provide the necessary explanations with regard to the application of Articles 3 and 4 of the Convention (payment of wages in legal tender and value attributed to allowances in kind) – in relation to the draft amendments to sections 165 and 166 of the Labour Code – and also of Articles 8 and 12 (deductions from wages and regular payment of wages), which have been the subject of comments by the Committee for a number of years.