Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 351, Novembre 2008

1. 647. The Committee last examined this case at its November 2007 meeting, when it presented an interim report to the Governing Body [see 348th Report, paras 402–439, approved by the Governing Body at its 300th Session in November 2007].
2. 648. The Government sent further observations in a communication dated 20 February 2008.
3. 649. 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. Prior examination of the case

1. 650. In its previous examination of the case at its November 2007 meeting, the Committee made the following recommendations regarding the issues pending [see 348th Report, para. 439]:
   • (a) The Committee reiterates that additional legal and other guarantees are required to avoid the abusive use of the recourse of unconstitutionality against collective agreements in the public sector by the Office of the Ombudsperson and the Libertarian Party which inevitably leads to the social partners losing confidence in collective bargaining and requests the Government to keep it informed in that respect.
   • (b) The Committee requests the Government to continue to keep it informed of developments with regard to the measures and decisions adopted in relation to ensuring respect for the principle of collective bargaining in the public sector, including the bills mentioned in the conclusions (bill of ratification of Conventions Nos 151 and 154), as well as of the progress of the joint commission of the Higher Labour Council and the Legislative Assembly with the assistance of the ILO.
   • (c) The Committee expects that the Constitutional Chamber of the Supreme Court will take fully into account Costa Rica's commitments arising from the ratification of Convention No. 98.
   • (d) Lastly, the Committee regrets that the Government has not responded to the allegation regarding the criminal complaint made to the Office of the Attorney-General against union leaders for submitting a complaint to the ILO, in which their dismissal was sought. The Committee requests the Government to respond to this allegation without delay and recalls that no union leader should be subject to intimidation, reprisals or sanctions as a result of submitting complaints to the ILO.

B. The Government’s reply

1. 651. In its communication of 20 February 2008, the Government states that it notes the recommendation made by the Committee on Freedom of Association and states that the issue of collective bargaining in the public sector and the use of actions for unconstitutionality against collective agreements in this sector have been repeatedly submitted to the ILO’s supervisory bodies, as well as to the Committee on Freedom of Association, especially within the follow-up to Case No. 2104.
2. 652. The mandate of the October 2006 high-level technical assistance mission covered the issue of restrictions to the right to bargain collectively in the public sector in the light of various rulings issued by the Constitutional Chamber of the Supreme Court, as well as the subjection of collective bargaining in the public sector to criteria of proportionality and rationality in accordance with the case law of the Constitutional Chamber, which has declared unconstitutional a number of clauses of collective agreements in the public sector.
3. 653. All of these proceedings are marked by numerous arguments to refute the accusations and statements made regarding this affair by the Government, which is why the Government requests that all the arguments it has put forward concerning the issue be taken into account.
4. 654. As to recommendations (b) and (c) of the 348th Report of the Committee on Freedom of Association, the Government states that it sent copies of the report to Mr Luis Paulino Mora Mora, President of the Supreme Court of Justice of the Judiciary, Mr Alexander Mora Mora, President of the Standing Committee on Judicial Affairs of the Legislative Assembly and Mr José Pablo Caravajal, Executive Director of the Higher Labour Council, in February 2008, in order to inform them of the Committee’s observations so that they could give their opinions on the recommendations and report on progress made relating to the concerns expressed by this supervisory body. In this regard, the Government undertakes to keep the Committee informed of any responses made by the abovementioned national authorities.
5. 655. As to the progress made by the joint commission of the Higher Labour Council – Legislative Assembly (recommendation (b) of the Committee), the Government states that this issue is a priority; however, the Legislative Assembly is currently considering the approval of the implementation agenda for the free trade agreement with the United States (DR-CAFTA, Dominican Republic-Central American Free Trade Agreement). However, this has not prevented a study into a bill on collective bargaining in the public sector from being undertaken within the Higher Labour Council (a national tripartite body) in the context of the reform of working procedures.
6. 656. The Government sends a copy of official letter No. DMT-0173-08, of 19 February 2008 in order to paint a clearer picture of its intention to strengthen measures effectively guaranteeing the respect of the principle of collective bargaining in the public sector. In this letter, the Minister of Labour requests the Minister of the Presidency to speed up work on those bills contributing to the strengthening of the right to collective bargaining in the public sector, including the bills of ratification for the abovementioned ILO Conventions Nos 151 and 154.
7. 657. Furthermore, the Government recalls that bills relating to the promotion of collective bargaining in the public sector were submitted and recommended for adoption to the Legislative Assembly: the reform of section 192 of the Constitution, the purpose of which is to legalize the right to conclude collective agreements in the public sector; the “bill on bargaining for collective agreements in the public sector” and the elevation to the status of law of the current Decree No. 29576-MTSS, governing dispute resolution and collective bargaining for public servants.
8. 658. In addition, in the light of the actions for unconstitutionality seeking the annulment of certain clauses in collective agreements, the Ministry of Labour and Social Security has presented appropriate legal assistance in defence of the right of collective bargaining in the public sector with regard to the legal proceedings that have taken place.
9. 659. In any case, in a follow-up to the recommendations of the October 2006 high-level mission and under the auspices of the ILO Subregional Office for Central America, located in Costa Rica, and its team of specialists, the Government refers to a seminar organized on 13 March 2008 on “Standards and case law on collective agreements in the public sector: From an international and domestic law perspective”.
10. 660. All the social and government partners involved in the effective application of the principles of freedom of association and collective bargaining were invited to participate in this activity, including the very highest authorities of the executive (heads of institutions and advisers to the bodies signatories to collective agreements, heads of bodies belonging to the Policy Committee on Collective Bargaining in the Public Sector), the Ombudsman General of the Republic, the Office of the Comptroller-General of the Republic, the Public Prosecutor-General of the Republic, the Minister of Finance, the Director-General of the Civil Service, the Regulator-General of Public Services, among others, including the technical officers of the Ministry of Labour and Social Security responsible for the issue in question. Furthermore, the heads of the legislative branch were invited (members of parliament accompanied by their advisers) and the judicial authorities, including judges of Chamber II and the Constitutional Chamber and their counsels, as well as the most representative organizations of the workers and the employers party to collective agreements in the public sector and recognized labour law experts, and authorities from institutes of higher education, among others.
11. 661. In accordance with the brief given by the ILO supervisory bodies to the Government, the aim of this seminar is to contribute to the dissemination of the principles of the international standards which govern collective bargaining in the public sector, the subject of much study and analysis in many forums within this international organization.
12. 662. The Government states that with regard to the criminal complaint made to the Office of the Attorney-General against union leaders for submitting a complaint to the ILO, it sent its response to the Committee on 9 August 2007 as a part of the last reply sent.
13. 663. In its reply, the Government showed that the complaint was an isolated incident, within the rule of law in Costa Rica, of a member of parliament exercising the right to make a complaint to the criminal courts. However, it is clear that the Government is not connected in any way to the complaint made by the member of the legislature. The outcome of the legal proceedings will depend entirely on the ruling of the competent legal body within the framework of the separation of powers essential to the rule of law, under which the procedural guarantees in criminal cases (the Government refers to the relevant constitutional standards relating to due process) and trade union guarantees are recognized.

C. The Committee’s conclusions

1. 664. The Committee observes that in the present case the complainant organizations alleged: (1) the declaration as unconstitutional by the Constitutional Chamber of the Supreme Court of Justice of a considerable number of clauses of collective agreements concluded with public institutions and enterprises, relating to economic and social issues, which extended social and economic benefits established under the Labour Code and in legislation; (2) the lodging of a criminal complaint against trade union leaders for having submitted a complaint to the ILO.
2. 665. The Committee notes the Government’s latest reply which refers to measures already adopted by the national authorities regarding the issue in question, as well as to new measures. As to the measures previously adopted by the authorities, the Committee took note of these in its previous conclusions which are reproduced below in order to clarify the situation [see 348th Report, para.434]:
   • The Committee notes the Government's statements, according to which (1) the Government does not endorse the actions of the Office of the Ombudsperson nor of other political parties in challenging collective agreements, even if they are entitled to do so; (2) the Constitutional Chamber's decisions have not been drafted in full, only the operative paragraphs exist, but they suggest that voting was divided; (3) the Government's analysis process makes it clear that the full text of the rulings is required in order to avoid falling into speculation and subjective interpretations; (4) the Government has indicated the ILO’s position and its principles to the Constitutional Chamber; and (5) the Government has demonstrated its will to ensure collective bargaining in the public sector as an institution. The Government attaches communications from the heads of enterprises and institutions affected by the annulment of particular clauses in their collective agreements. There is a particular unease emanating from these communications, especially since the agreements had been set before the Committee on Policies for Collective Bargaining in the public sector at the time in order to have technical support, although they do point out that they must abide by the Constitutional Chamber's rulings and the separation of powers principle. The Committee observes the Government's request that its statements and arguments made in previous cases also be included. The Committee summarizes the Government's previous statements in earlier cases as follows: (1) the Government possesses the will and commitment to resolve the problems; (2) it has requested the ILO’s technical assistance in the hope that this will help to solve the problems mentioned; (3) the efforts of the Government (many of which were tripartite) regarding these problems included the presentation of several legislative proposals to the Legislative Assembly and their reactivation: a draft constitutional amendment concerning article 192, a bill on collective bargaining in the public sector, and the addition of paragraph 4 to article 112 of the General Law on Public Administration (the three initiatives are intended to strengthen collective bargaining in the public sector); bill on parliamentary approval of ILO Conventions Nos 151 and 154; the draft revision of various sections of the Labour Code, Act No. 2 of 26 August 1943 and Decree No. 832 of 4 November 1949; (4) the Government's efforts also include other types of initiatives, such as the intervention of third parties to defend collective agreements (coadyuvancia) in legal actions of unconstitutionality brought in order to annul specific clauses.
3. 666. The Committee had also noted that, according to the report of the October 2006 high-level technical assistance mission, the bills in question would be examined by the Higher Labour Council (a tripartite body for dialogue) with the objective of studying them and providing them with new impetus, through consensus; the Higher Labour Council asked the Legislative Assembly to set up a joint commission, with the technical assistance of the ILO, in order to develop the plan for the reform of the working procedures [see 348th Report, para. 435].
4. 667. As to the Government’s new measures, in the light of the previous examination of the case, the Committee notes the Government’s statement that: (1) it has transmitted the report of the Committee on Freedom of Association to the President of the Supreme Court of Justice, the President of the Legislative Assembly’s Standing Committee on Judicial Affairs and the Executive Director of the Higher Labour Council (a national tripartite body) in order to inform them of the Committee’s observations so that they may report on progress made relating to the concerns expressed by the Committee; (2) the progress made by the joint commission of the Higher Labour Council – Legislative Assembly is a priority for the Government, however, the Legislative Assembly is currently considering the approval of the implementation agenda for the free trade agreement with the United States (DR-CAFTA, Dominican Republic-Central American Free Trade Agreement). However, this has not prevented a study from being undertaken within the Higher Labour Council (a national tripartite body) into a bill on collective bargaining in the public sector, in the context of the reform of working procedures; (3) on 19 February 2008 the Minister of Labour formally requested the Minister of the Presidency to speed up work on all bills contributing to the strengthening of the right to collective bargaining in the public sector, including the bills of ratification for the abovementioned ILO Conventions Nos 151 and 154; (4) in a follow-up to the recommendations of the high-level mission, and under the auspices of the ILO, a seminar was organized on 13 March 2008 on the issue of collective bargaining to which were invited, among others, the social partners, the heads and bodies of the various branches of government affected by the issue, including Supreme Court judges and members of parliament, as well as their assistants and advisers, in order to disseminate the principles of the ILO Conventions.
5. 668. The Committee appreciates the Government’s efforts in promoting ratification of the ILO Conventions on collective bargaining and of the various bills relating to this issue, as well as the initiatives adopted by the various state authorities concerned and the social partners. The Committee notes that, according to the Government, the progress made by the joint commission of the Higher Labour Council – Legislative Assembly regarding the abovementioned bills on constitutional and legal reforms aimed at resolving the issue at hand regarding collective bargaining in the public sector has been blocked by discussion of the implementation agenda of the free trade agreement with the United States. The Committee regrets this delay. The Committee expects that the joint commission will take up its work again shortly and that it will be in a position to report on any developments in the near future.
6. 669. The Committee once again requests the Government to keep it informed of developments regarding the measures and decisions adopted, as well as developments concerning those bills relating to collective bargaining in the public sector (including those relating to the ratification of Conventions Nos 151 and 154) and expresses once again the expectation that the Constitutional Chamber of the Supreme Court of Justice will take into account fully the commitments made by Costa Rica when ratifying Convention No. 98, in particular with regard to collective bargaining in the public sector. The Committee reiterates that additional legal and other guarantees are required to avoid the abusive use of the recourse of unconstitutionality against collective agreements in the public sector by the Office of the Ombudsperson and the Libertarian Party which inevitably leads to the social partners losing confidence in collective bargaining, and requests the Government to continue to keep it informed in that respect, as well as of the progress of the joint commission of the Higher Labour Council and the Legislative Assembly with the technical assistance of the ILO.
7. 670. Finally, the allegation relating to the criminal complaint made by a member of parliament to the Office of the Attorney-General against union leaders for submitting a complaint to the ILO (as a part of which it was requested that the leaders be dismissed), the Committee notes the Government’s statements to the effect that this was an isolated incident and that the Government is not in any way connected to the complaint made by the member of the legislature, but that however he was exercising his right to make a complaint before the criminal courts, which must in turn act within the framework of the procedural guarantees enshrined in the Constitution and the trade union guarantees. The Committee deplores the criminal complaint made by the member of parliament and requests the Government to keep it informed of the outcome and to verify that no trade union leader is sanctioned for having submitted a complaint to the ILO.