Rapport intérimaire - Rapport No. 331, Juin 2003

1. 357. The complaint is contained in a letter from the Latin American Workers’ Confederation (CLAT) dated 8 November 2002. The World Confederation of Labour (WCL) supported the complaint in its letter of 13 December 2002.
2. 358. The Government sent its observations in a letter of 17 February 2003.
3. 359. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 360. In its letter of 8 November 2002, the Latin American Workers’ Confederation (CLAT) alleges the violation of trade union rights in the poultry company PROPOKODUSA where a group of workers were dismissed for forming a trade union (constituted on 16 June 2002 with 21 workers), the Poultry Industry and Similar Workers’ Union (SINTRAINAVI). This union fulfilled all the legal requirements and is affiliated to the Trade Union Organization Movement of Costa Rican Workers (CMTC). Despite efforts by the CMTC to bring about a dialogue between the company and the trade union on its recognition and reinstating the workers in their jobs, it was not successful. The CLAT has sent various documents and information on these dismissals which can be summarized as follows.
2. 361. On 16 June 2002, the workers of the company in question formed the SINTRAINAVI union. The company’s response was not long in coming and on 25 June, without warning, the workers were called by the management in small groups to accept unilateral conditions of work under a supposed reorganization of the company of which they had no knowledge. The workers who did not accept the new unilateral conditions, which were not only fundamental but no time was allowed to consider them, immediately received a dismissal letter. They were told that those who did not collect the letter would have to wait until the employers’ representatives handed it to them in the presence of two witnesses.
3. 362. The trade union confederation to which SINTRAINAVI is affiliated (the CMTC) lodged a complaint of violation of the right of freedom of association with the Ministry of Labour on 10 September 2002. Following the formation of the trade union (on 16 June 2002) the workers were threatened with dismissal and changes in working hours and form of remuneration. On 21 July the trade union requested a meeting. The company replied on 24 July asking what subjects were to be discussed and on 25 July the trade union members were unfairly, without warning, called in small groups by company representatives who gave them two options: accept the new conditions clearly prejudicial to the workers’ economic interests or sign for a letter of dismissal with management responsibility and the requirement to complete one month’s work (notice). The workers refused to sign. On 26 July the CMTC sought an urgent meeting with the Ministry of Labour to have the company reconsider the dismissals and that it should first attend the meeting requested by the trade union. On 29 July the dismissed members and members of the executive committee were given a cheque for their legal entitlements and prevented from entering the workplace, in breach of the legal one month’s notice. On 5 August, after a meeting between representatives of the trade union and the Ministry, the company stated its decision to uphold the dismissals.

B. The Government’s reply

1. 363. In its letter of 17 February 2003, the Government states that the Ministry of Labour received an initial complaint from the Costa Rican Confederation of Democratic Workers Rerum Novarum (5 September 2002) and subsequently from the Trade Union Organization Movement of Costa Rican Workers (CMTC) (24 September 2002) against the PROPOKODUSA company SA for trade union harassment and unfair labour practices. The Ministry asked them for the SINTRAINAVI workers’ membership cards and an attestation of the legal status of that trade union. The issue was also raised as to which of the two confederations could legitimately represent the trade union. The Rerum Novarum Confederation later withdrew its complaint.
2. 364. The report of 9 December 2002 by the competent Regional Director in the National Directorate of Labour states that the CMTC only provided information on the eight members of the trade union’s executive committee without indicating, among other things, to what extent they were affected by the alleged unlawful actions by the company and which other members of the union were also affected, which information has still not been provided by the complainant organizations, although they were repeatedly requested to do so. Independent of the complaint of trade union harassment and unfair labour practices lodged by the CMTC, the labour inspectors carried out an inspection of the PROPOKODUSA workplace on 8 October 2002 and were told, among other things, about offences involving excessive working hours, prohibited working hours, compulsory minimum rest and the minimum wage. In addition, according to the workers, when asked who was a member of a union, none of them replied in the affirmative. The Regional Director’s report states that, since it was impossible to proceed with the investigation for failure by the complainant organization to provide the information required by law, a decision to shelve the case would be taken within the next few days in view of the lack of interest of the complainant.
3. 365. The Government states that on 26 July 2002, on the instructions of the Minister of Labour, two labour inspectors and the Director-General of Labour Affairs visited the company’s premises to ascertain the facts and deal with the initial complaint submitted by the Trade Union Organization Movement of Costa Rican Workers (CMTC) about the dismissal of members of the Poultry Industry and Similar Workers’ Union (SINTRAINAVI). On that occasion they spoke separately with trade union representatives and made the first moves to bring about a conciliation meeting. They returned to the factory on 29 July 2002, to urge a conciliation meeting between the trade union and the company. On that date, the dismissal of 37 workers took place and they were paid termination entitlements. A police patrol at the factory gates was observed. On 1 August 2002, a conciliation meeting was convened by the Office of the Vice-Minister of Labour, attended by the Vice-Minister and the Director-General of Labour Affairs, to seek a solution to the dispute between the trade union and the company. At the meeting, the parties reiterated their positions:
   • – PROPOKODUSA company: since 20 March 2002 the 82 workers in the processing plant had been notified of the company’s reorganization, consisting of hourly pay rather than piecework (for processed chicken) as had been the case until then and to work only eight hours, in compliance with labour legislation. On 12 July 2002, these workers were presented with a new personnel action with the changes in question. Anyone who did not accept the changes was dismissed with payment of their full labour entitlements. On 25 July 2002, they were called on to decide, summoned to the administration in groups of 20, and those who did not accept the new conditions were dismissed. The company continues to state that the trade union was formed during the reorganization process, and that they had no knowledge of the names of the members, although they did know the names of the leaders. In any case, all the workers were given the option of continuing to work and if the trade union leaders did not accept the new conditions, no one forced them to do so. Of the 82 workers affected by the reorganization (not the same number as the total workforce) 37 did not accept the new conditions, and were therefore given their letter of dismissal by the management. The company does not know if members were dismissed because it does not know their names.
   • – Trade Union Organization Movement of Costa Rican Workers: there is an industrial dispute in the company as a result of the dismissal of the executive committee of a trade union formed on 16 June 2002 and who are seeking reinstatement. On 26 July 2002, the trade union presented the company with an agenda for discussion, including, among other things, that workers were given five minutes to accept the new conditions or be dismissed. The workers’ organization seeks reinstatement, recognition of the trade union and the opening of negotiations.
   • Other possible meetings between the parties, with the mediation of the Ministry of Labour, were ruled out because the company informed the Vice-Minister by telephone of its refusal to consider the points proposed by the trade union.
4. 366. In a letter of 13 December 2002, the National Director and Inspector General of Labour asked the Ministry of Labour for the investigation into the case to be continued.
5. 367. The Government sends a letter from the company concerning the complaint in which it underlines the following points: (1) since January 2002 the company was expanding rapidly and hired new workers (under a new system of working hours and form of pay) and had to reorganize; (2) from that month onwards, in a fully transparent manner, the company kept the workers informed through several meetings and announced that there would be changes (different working hours and pay – which would be higher – in particular to align them with the conditions of work of the new workers who had been hired because of the expansion of the company’s activities); (3) right in the middle of the restructuring process, 21 of the 140 workers formed a trade union; (4) the deadline for accepting the restructuring and the new conditions was 25 July 2002, the company indicating that those who did not accept would be dismissed, although the company hoped that they would all accept; (5) many of those who belonged to the trade union accepted the new conditions, others did not accept but later changed their mind, in which case the company cancelled the dismissal order; (6) none of the members of the executive committee of the trade union accepted the restructuring and were dismissed, and paid all their entitlements; (7) the company acted lawfully and there are no legal proceedings against it on this matter; (8) the purpose of the restructuring was economic and not anti-union; and (9) the vacant jobs have already been filled.
6. 368. According to trade union documents sent by the Government, the formation of the trade union was notified to the Ministry of Labour on 27 June 2002 and to the company on 15 July 2002. According to a letter from the company provided by the Government, 37 workers left (were dismissed from) the company when faced with two alternatives due to the restructuring of the company (offer of better conditions of work or total termination of their employment rights).
7. 369. The following is the model letter of acceptance of the restructuring:
   • I, the undersigned …… hereby inform you as follows:
8. 1. I accept the new restructuring of the company.
9. 2. I accept the new payment for my work which will be 400 colons per hour with effect from 5 August 2002.
10. 3. I accept the new working hours which will be 48 hours per week with effect from 5 August 2002.
11. 4. In the light of the foregoing, with effect from 5 August 2002 I shall cease to work under the conditions which previously applied and will begin to work under the new conditions set out in paragraphs 2 and 3 of this letter.
12. 5. I thereby continue as an employee retaining my length of service rights.
    • Signature of the worker.

C. The Committee’s conclusions

1. 370. The Committee observes that in the present case the complainant organization has alleged anti-union dismissals with management responsibility (i.e. with payment of the legal compensation set out in the legislation on unfair dismissal) of a group of workers in the PROPOKODUSA company (37 according to the information provided by the Government and the company) including the eight members of the executive committee of the SINTRAINAVI union because of the formation of this union, the dismissals taking place without warning on 25 July 2002 when the workers in question did not accept the new and unilateral conditions of work proposed by the company, which invoked a supposed and unknown process of restructuring of the company.
2. 371. The Committee observes that the company, for its part, maintains that the dismissals do not have anti-union but economic motives, that the process of restructuring was known to the workers since the beginning of 2002, that meetings had been held in the company (the last on 12 July 2002), that only 21 of the 140 company workers were members of the union and that 25 July 2002 was the deadline for workers to accept the restructuring, i.e. the new conditions of work proposed by the company (see last paragraph of the Government’s reply) and that anyone who did not accept the changes would be dismissed with payment of their full labour entitlements.
3. 372. The Committee takes note of the inspections and conciliation hearings (which were unsuccessful) conducted by the Ministry of Labour authorities as a result of a trade union complaint and observes that in the investigation the trade union side did not provide the membership cards of all the members dismissed as requested by the authorities but only those of the eight members of the trade union’s executive committee, nor did it state how far and to what degree the alleged unlawful actions by the company affected those members, for which reason it was not possible to proceed with the investigation for lack of the information requested from the complainant trade union. The Committee observes that on 13 December, the National Director and Inspector General of Labour asked for the investigation into the case to be continued.
4. 373. The Committee observes that, contrary to the company, the complainant organization maintains that the workers had no knowledge of the restructuring until the last minute.
5. 374. The Committee requests the Government and the complainant organizations to send additional information and, in particular, to transmit all legislative texts ensuring protection of trade union officials and to indicate whether this legislation protects them against dismissal throughout their term of office (except in the case of serious professional misconduct) or whether it only protects them to the extent that the dismissal decision or other prejudicial measure is related to the performance of trade union activities.
6. 375. Finally, the Committee regrets in any case that the company did not consult the trade union concerning the restructuring. The Committee therefore underlines the importance of employers and workers’ organizations consulting on questions of common interest and seeking to reach agreement and in particular to discuss the consequences of restructuring programmes on employment and conditions of work.