Rapport définitif - Rapport No. 241, Novembre 1985

1. 24. The Committee examined this case at its May 1985 Session and submitted an interim report to the Governing Body (see 239th Report of the Committee, paras. 276-297, approved by the Governing Body at its 230th Session (May-June 1985)).
2. 25. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087) and the Right to Organise and Collective Bargaining Convention, 1949 (No.098)

A. Previous examination of the case

1. 26. In this case the complainant organisation had alleged that, as a result of an appeal lodged with the administrative authorities on 30 August 1984 by one of the candidates not elected to the new national executive committee of the National Association of Public Employees (ANEP), the Ministry of Labour and Social Security took measures which resulted in the suspension of the registration of the election results until a decision had been taken on the objection, the freezing of the ANEP's bank accounts and retention of the check-off funds amounting to administrative suspension of the ANEP.
2. 27. The Government stated that its decision to investigate the validity of the elections was legally based on the Ministry of Labour's obligation to ensure that the unions operated in conformity with the provisions of the Labour Code concerning democratic voting procedures. The Government also stated that the decision to carry out an investigation arose out of a complaint by a candidate in the elections that there had been irregularities in the election procedures which justified their annulment.
3. 28. The Committee formulated, in particular, the following recommendations (see 239th Report, para. 297): The Committee draws the Government's attention to the principle that in cases where the results of trade union elections are challenged such questions should be referred to the judicial authorities in order to guarantee an impartial and objective procedure which should also be expeditious. The Committee requests the Government to supply full and detailed information on the results of the inquiries that have been undertaken and to indicate whether any procedure exists for application to the courts concerning any administrative decision that may be taken in the matter. In order to avoid the danger of serious limitations on the right of workers to elect their representatives in full freedom, cases involving a challenge to the results of trade union elections should not - pending the final outcome of the proceedings - have the effect of paralysing the operations of trade unions. The Committee hopes that the measures taken by the Government will be lifted and that the workers' representatives who won the ANEP elections in August 1984 will be authorised to fulfil their duties in full freedom until a decision on the validity of the elections is reached and that, if necessary, an appeal may be made to the courts for a final decision in the matter.

B. The Government's reply

1. 29. The Government transmits, as an annex to its communication of 3 July 1985, the text of judgement No. 155 of the First Chamber of the Supreme Court of Justice, dated 19 December 1984, dealing with an application for amparo (enforcement of constitutional rights) lodged by the General Secretary of the ANEP. In this judgement, it is decided, in particular, that the following shall be without effect: the administrative procedure suspending the registration of the executive committee of the ANEP, the retention of cheques representing members' dues and the non-payment of cheques drawn on the various current bank accounts.
2. 30. The preambular part of judgement No. 155 states in particular the following: The Ministry of Labour suspended the functioning of the National Association of Public Employees by refusing to register the new composition of the national executive committee and thus, to certify the legal capacity of the body and also by ordering administrative establishments and public corporations to retain the dues of the Association's members. It took those measures pending the outcome of an appeal lodged by one of the Association's members against the assembly that elected the members of the governing board. The case is therefore one of suspension of trade union activities by administrative order. This suspension violates freedom of association because it obstructs or prevents, albeit provisionally, the free functioning of the Association and restricts the right of association. The Ministry was empowered only to verify compliance with the legal requirements that the documentation must satisfy (a rule implied in section 344 of the Labour Code), for any questions that may arise between the members concerning anomalies in the assembly which do not appear in the record must be settled by the members before the labour courts. There is certainly no specific rule to that effect, but suspension of the registration of the governing board on grounds unconnected with the formalities of the documentation itself amounts to depriving the trade union of its legal existence pending an administrative ruling in a dispute which is of a judicial nature since the union cannot function without its executive organ (section 347, ibid). The foregoing criterion does not conflict with the provisions of section 337 already mentioned and section 47 of the Ministry of Labour Organisation Act because, although it is the Ministry's duty to watch over social organisations in order to ensure that they function strictly in accordance with the law, this does not imply freedom to take measures which prevent the normal activity of the body. Consequently, the measures referred to above are in breach of sections 10, 50, 11 and 153 of the Political Constitution.
3. 31. The Government states that, after a delivery of judgement No. 155 dealing with the application for amparo lodged by the National Association of Public Employees, the Department of Social Organisations of the Ministry of Labour and Social Security proceeded to leave without effect the administrative procedure which had been started, to register the new governing board of the ANEP, to cancel the communications ordering retention of the check-off funds which had been sent out in virtue of the procedure started, to extend the approprate certification of the legal capacity of the ANEP and to inform those who had challenged the elections that their petition must be lodged through the judicial channel.
4. 32. The Government adds that, on the basis of judgement No. 155, the Department of Social Organisations of the Ministry of Labour and Social Security has rejected every application made to it for the purpose of challenging the results of trade union elections, indicating that representations on such matters must be examined through the judicial channel. Similarly, the practice followed by the Department of Social Organisations since the delivery of the aforementioned judgement has been to register the appointment of new executive committees as it occurs, without awaiting the outcome of any judicial proceedings challenging such appointments. The result is that the functioning of a trade union organisation whose executive committee is challenged is at no time paralysed by administrative order.

C. The Committee's conclusions

1. 33. The Committee observes with interest that judgement No. 155 of the First Chamber of the Supreme Court of Justice, dated 19 December 1984, expresses principles consistent with those enunciated by the Committee at its last session, objecting to the measures of administrative suspension of the ANEP, the freezing of the ANEP's bank accounts and the retention of check-off funds, which had been taken on the basis of an administrative appeal lodged by a defeated candidate for election to the new executive committee of the ANEP.
2. 34. The Committee observes in this connection that, as a result of judgement No. 155, the Department of Social Organisations of the Ministry of Labour and Social Security registered the new ANEP executive committee which had been elected, cancelled the communications sent out ordering retention of the check-off funds, and extended the appropriate certification of the legal capacity of the ANEP. Furthermore, in accordance with judgement No. 155 and with the principle advanced by the Committee at its last session, the Department of Social Organisations informed those who had challenged the elections through the administrative channel that any complaint on that subject must be made through the judicial channel.
3. 35. In these circumstances, having regard to the measures adopted by the administrative authorities as described above, the Committee considers that this case does not call for further examination.