Rapport définitif - Rapport No. 392, Octobre 2020

1. 545. The complaint is contained in a communication dated 8 June 2017 from the Confederation of University Workers in the Americas (CONTUA) and the Union of Employees of the University of Costa Rica (SINDEU).
2. 546. The Government sent its observations in a communication dated 12 February 2018.
3. 547. 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 complainants’ allegations

1. 548. In its communication dated 8 June 2017, CONTUA and SINDEU allege non-compliance by the University of Costa Rica (the public university) with the collective labour agreement signed with SINDEU in 1996 and in force at the date of filing of the complaint. They allege specifically that the University granted a different salary adjustment in January 2016 and 2017 than that provided for in article 6 of the agreement and that it reduced the percentage of the annuity incentive contrary to what is provided in the agreement (the annuity incentive is paid by the University for each year worked in recognition of work experience). The complainant organizations also allege that the University did not comply with the recommendation of the Committee on Freedom of Association concerning Case No. 3080.
2. 549. The complainant organizations indicate that article 6 of the collective labour agreement, which establishes the salary adjustment system, contains specific paragraphs and subparagraphs that SINDEU and the University apply as negotiations progress until a final agreement on the adjustment is reached. The complainant organizations note that subparagraphs (c) and (e) of article 6 stipulate as follows:
   • (c) as a basis for negotiation, it is agreed to use the percentage increase (P) allocated to the Special Fund for Higher Education for the current year;
   • (e) from January of each year, a salary adjustment will be granted for half of the percentage determined in (c), in other words, P/2.
3. 550. The complainant organizations indicate that: (i) on 9 and 14 September 2015, SINDEU met with the University authorities and submitted its salary adjustment proposal for 2016; (ii) since no agreement was reached at those meetings, as had been the practice for many years, SINDEU and the University decided to delegate to the University Council a decision on the issue of salary adjustment; and (iii) on 19 November 2015, the University Council received the parties and listened to their proposals and on 15 December 2015 decided, for the first time, that the issue of salary adjustment was not within its competence but that it was the responsibility of the parties to reach agreement on it.
4. 551. The complainant organizations indicate that, following the decision of the University Council, the Rector of the University summoned SINDEU and informed it that it was the office of the Rector that should decide the issue of salary adjustment. According to the complainant organizations, on 18 December 2015, the office of the Rector issued decision No. R-338-2015, in which it unilaterally decided the salary adjustment, thereby breaching the collective labour agreement and the previously established collective bargaining process. The complainant organizations indicate that, while it is true that the Organic Statute of the University does not include among the functions of the University Council the jurisdiction it has been given for years on the salary adjustment, it is also not indicated in the agreement that the Rector should unilaterally take a decision on it.
5. 552. The complainant organizations indicate that, according to data provided by the University to SINDEU, in 2016 the Special Fund for Higher Education grew by 7.38 per cent, so that, in accordance with article 6 of the collective labour agreement, the minimum percentage salary increase that should be awarded was 3.69 per cent as of January 2016. The complainant organizations indicate, however, that the University awarded an increase of 2 per cent for 2016, in other words less than the applicable 3.69 per cent. Furthermore, the complainant organizations indicate that, for the January 2017 salary negotiation, SINDEU met with the University on three occasions at which no agreement on the salary adjustment was reached and that, despite SINDEU’s willingness to negotiate, the Rector again unilaterally decided the salary adjustment.
6. 553. The complainant organizations also allege that the University has reduced the percentage of the annuity incentive payment contrary to what is provided in the collective labour agreement. Specifically, they indicate that: (i) on 29 September 2009, the University Council decided that, starting from January 2010, the annuity incentive would change from 3 per cent (as provided by the agreement) to 5.5 per cent for all university workers; (ii) on 21 August 2015, members of the University Council received a document signed by the Rector and five members of the University Council, in which they proposed to repeal what had been agreed on 29 September 2009 and instead award the 3 per cent annuity incentive established in the agreement; (iii) article 25(ch) of the agreement provides that the Labour Relations Board should rule on the violation, interpretation or misapplication of the agreement; (iv) SINDEU therefore requested the Rector to consult the Labour Relations Board on the matter, a request which was not accepted by the Rector, and although SINDEU applied to the Labour Relations Board on 6 November 2015, the Rector had not appointed one of its representatives and the Board could not therefore be consulted; and (v) on 27 April 2017, the University Council decided that, starting from 1 January 2018, the percentage of the annuity payment would be that set out in the agreement, that is, 3 per cent.
7. 554. The complainant organizations further indicate that article 79 of the collective labour agreement provides that provisions, contracts and customs that exceed the benefits established by the agreement or are not explicitly covered by it must remain in force. The complainant organizations further consider that what was agreed on 29 September 2009 by the University Council is an acquired right and that, in any event, it was for the office of the Rector and SINDEU to review the percentage of the annuity incentive. They also indicate that the University repealed the agreement on 14 November 2016 and that two drafting proposals have been under negotiation since then, one prepared by the University and one prepared by SINDEU, and they also indicate that the issue of annuity is covered in the proposals.
8. 555. Finally, the complainant organizations allege that the University has not complied with the Committee’s recommendation in Report No. 375 of June 2015 on Case No. 3080 concerning the improper dismissal of three trade union leaders. The complainant organizations recall that in that case, the Committee had requested the Government to ensure that the collective labour agreement is fully respected and they allege that, as of today, the University has not reinstated the three dismissed union leaders, thereby breaching article 67 of the agreement, which provides that members of the trade union’s Executive Board may only be dismissed for the reasons stipulated in article 81 of the Labour Code if they are proven before the Labour Relations Board and the Arbitration Tribunal, and that their right of tenure protects them up to one year after termination of their union duties.

B. The Government’s reply

1. 556. In its communication of 12 February 2018, the Government sent its observations and those of the University (transmitted to the Government on 2 November 2017). The Government indicates that the University is an entity governed by public law and that, in accordance with article 40(m) of its Organic Statute, it is for the Rector of the University to make the final decision on any matter of employment regulation. The Government indicates that, as a public institution subject to a budget, the University plans the use and disbursal of its economic and financial resources in a timely manner, seeking a distribution that best suits the purposes required by the State. It also indicates that in 2017, the University and SINDEU repealed the collective labour agreement and that during the same year they met regularly to negotiate a new collective agreement, which was done in a climate of broad and participatory social dialogue. For its part, the University indicates that it has decided to negotiate a new agreement with SINDEU, even though it does not have the minimum number of affiliates required by the Labour Code.
2. 557. The University asserts that it has not committed any violation of the collective labour agreement and that the salary adjustments were made in accordance with the agreement. It also indicates that on 5 April 2016, SINDEU filed a lawsuit with the Labour Court of the Second Circuit in San José concerning the interpretation and application of article 6 of the agreement, in which it presented the same arguments as that of the present complaint. The University states that the trial is dealt with under court file No. 15-000361-1178-LA-6, that it has already responded to that lawsuit and that it is awaiting the delivery of the judgment. For its part, the Government indicates that it has consulted the National Directorate of Labour Inspection and the Directorate of Labour Affairs of the Ministry of Labour and Social Security, which indicated that they had no knowledge of any complaints submitted by SINDEU against the University.
3. 558. The University indicates that SINDEU uses the concepts of “salary adjustment” and “salary negotiation” interchangeably, as if they were equivalent, when in fact they are not. According to the University: (i) article 6 of the collective labour agreement does not establish the obligation that the salary adjustment should be the product of negotiation but that it should be calculated on the basis of the increase in the cost of living or inflation and the projected inflation for the following year; and (ii) such a system contains a margin of flexibility because inflation is calculated in advance, that is, it is projected on the basis of Central Bank calculations for the following year, so that if at the end of the year inflation is higher than anticipated at the start of the year, the University budgets for an increase that is paid in the following January, a payment that is made retroactively for the unanticipated inflation of the previous year.
4. 559. The University acknowledges that before the 2016 salary adjustment was implemented, the University Administration and SINDEU reached out to each other and that the representatives of the University Administration explained to SINDEU its proposal and justified why the 2016 salary adjustment could not be higher. The University indicates that SINDEU did not accept its proposal and that, in the absence of an agreement, the matter was brought to the attention of the University Council, which is a high-level deliberative body of the University that nonetheless has no legal competence in matters of staff administration or salary-setting, but rather has historically acted as a mediation body. The University states that the University Council is also not a hierarchical body superior to the Rector, but that each of the two has different competences.
5. 560. The University indicates that the University Council declined to assume the competence to resolve the salary adjustment, on the basis of the legal opinion delivered on 28 October 2015 by the Director of the University’s Legal Office. The University notes that, in accordance with that opinion and the University’s Organic Statute, it is the Rector and not the University Council that should make a final decision on the salary adjustment, in the event that there is no agreement with the union. The University asserts that the Rector’s salary-setting competence is a public legal competence that cannot be waived or delegated to any other body and that, had the salary increase not been decreed in December 2015, University employees would have started 2016 without any salary adjustment.
6. 561. The University states that on 18 December 2015, when it was about to conclude its operations for that year, SINDEU again changed its original proposal and requested the Administration to recognize an overall 4 per cent increase to the base salary of all employees, as of January 2016, while also requesting an additional 0.5 per cent for the construction of a solidarity economy clinic and further requesting an additional 0.5 per cent for the construction of a new building for the union (in its first proposal, SINDEU, without any factual or legal basis, had requested an overall base salary increase of 5 per cent). The University states that that proposal was unacceptable, not only because it sought to maintain a policy of salary increases well in excess of inflation, which is not covered by article 6 of the collective labour agreement and would jeopardize the economic stability of the institution, but also because article 6 does not in any case provide that cost-of-living increases should include other items.
7. 562. The University indicates that, in view of all of the above, the office of the Rector issued decision No. R-338-2015 of 18 December 2015 and ordered a 2 per cent increase of the base salary of employees, calculated as of 31 December 2015 and payable as of 1 January 2016, as well as an overall 1 per cent increase of the base salary of employees as of 1 July 2016. The same agreement provided that, should inflation exceed 5 per cent at the end of 2016, the University would recognize the corresponding difference, once the corresponding budgets of both the Government and the University had been approved.
8. 563. The University emphasizes that, for the purposes of both the lawsuit and the complaint, SINDEU selected a portion of the text of article 6 of the collective labour agreement (ignoring the rest of the article) with the aim of obliging the University to calculate salary settings using a parameter different from the cost of living and the following year’s inflation projections. SINDEU claims that the adjustments should be made on the basis of the increase designated in the State budget for higher education, through the Special Fund for Higher Education. However, article 6 of the agreement does not indicate in any of its clauses that the parameter or criterion for setting salary increases should be the Special Fund increase. Moreover, with regard to setting the salary increase for 2017, the University notes that, although three meetings were held, SINDEU had already filed a lawsuit against the University.
9. 564. With regard to the allegation concerning the payment of the annuity incentive, the University states that the repeal of the agreement by the University Council at its meeting on 29 September 2009, in favour of a new agreement dated 27 April 2017, deserves a contextual explanation. First of all, the University indicates that the annuity payment constitutes an increase in annual salary, which in the case of the University (unlike most other entities of the public administration) is calculated on the basis of the total salary of the previous year and not only on the base salary. That increase is added to the cost-of-living increase, as provided in article 6 of the collective labour agreement, and is also added on top of other bonuses, such as overtime pay, the exclusive employment benefit and other supplementary bonuses. The annuity payment is distinguished from the base salary payment, in the sense that the latter is a payment that is made on the basis of the category and functions of the worker, whereas the percentage of the annuity payment is a fixed and automatic percentage for all workers employed by the University, which is theoretically linked to performance evaluations but in practice has resulted in an automatic salary increase.
10. 565. The University explains that, in 2009, following several judgments of the Second Chamber of the Supreme Court of Justice, the University was obliged to recognize, for a group of officials in the field of the medical sciences, a 5.5 per cent annuity for medical seniority. That outcome was based on a judicial interpretation of the scope of the so-called Medical Science Professionals Incentives Act, which is a law of general scope for all medical science workers. The University indicates that, in order not to disadvantage other employees, the University Council decided to grant the 5.5 per cent annuity to all employees. That was put into effect by increasing the 3 per cent annuity paid under the collective labour agreement to 5.5 per cent. The University indicates, however, that, a few years later, the jurisprudence of the Second Chamber changed, giving the University the discretion, as an employer, to set the percentage of the annuity incentive payment for employees in the field of medical sciences.
11. 566. The University indicates that in 2015 and given the change in the Court’s jurisprudence, a committee of experts was appointed to conduct a study of the economic and financial effects on the University of the increased annuity as a general policy, as well as to present a number of alternatives. The University asserts that it has respected the acquired rights of employees, in the sense of respecting all the annuities that they had already accumulated, with the percentages prevalent while those rights were in force. On the other hand, the University considers that it was neither prudent nor appropriate for the matter to be referred to the Labour Relations Board for the following reasons: (i) the issue had already been dealt with directly between the Rector and SINDEU and, considering that the Labour Relations Board represented the same parties, it was unproductive to merely continue to discuss the same issue in a different venue; and (ii) the decisions of the Labour Relations Board, under article 26 of the collective labour agreement, are not binding. Moreover, the University indicates that, in any case, article 79 of the agreement adopted in 1996 refers to provisions, contracts and customs prior to the negotiation of that agreement.
12. 567. Finally, with regard to the alleged non-compliance with the recommendation contained in Report No. 375 of 2015 on Case No. 3080, the University indicates that the recommendation focuses on the application of article 67 of the collective labour agreement, which covers workers on the Executive Board, union officials and trade union delegates, in the case of disciplinary dismissals or dismissals that do not originate in a legal case. The University indicates that the three individuals were employees who were performing a job under an agreement that the University had with the Costa Rican Social Security Fund and that, when the agreement between those two entities expired, the University found itself in the situation of lacking the funds to be able to maintain employment, which is provided for in article 192 of the Political Constitution. Moreover, a dismissal in such circumstances is also not prohibited by the collective labour agreement in article 67, since it is neither a dismissal for disciplinary reasons nor does it lack a valid legal cause. The University indicates that it had made a commitment to SINDEU to continue to employ the dismissed workers if they met the University’s entry requirements and participated in several competitions, without being favoured for not having achieved the necessary score.

C. The Committee’s conclusions

1. 568. The Committee observes that, in the present complaint, the complainant organizations allege failure by the University of Costa Rica to comply with the collective labour agreement signed with the Union of Employees of the University of Costa Rica (SINDEU) in 1996, in as much as the University allegedly granted a salary adjustment in January 2016 and 2017 that was different from that foreseen in the agreement and reduced the percentage of the annuity incentive contrary to what is provided in the agreement. They also allege that the University did not comply with the Committee’s recommendation in Case No. 3080.
2. 569. The Committee notes that, as claimed by the complainant organizations: (i) in September 2015 and after not reaching agreement with the University authorities regarding the 2016 salary adjustment, the University and SINDEU decided, as had been the practice for many years, that the University Council should resolve the issue; (ii) on 15 December 2015, the Council decided, for the first time, that the salary adjustment was not within its competence and as a result, on 18 December 2015, the Rector, under article 40 of the University’s Organic Statute, unilaterally decided the salary adjustment, thereby breaching article 6 of the collective labour agreement, which indicates that there must be agreement between the University and SINDEU; and (iii) the parties also failed to agree on the 2017 salary adjustment and the Rector again unilaterally decided the adjustment.
3. 570. In that regard, the Committee notes that the Government and the University indicate that (i) the University has not failed to comply with the collective labour agreement because article 6 of the agreement does not provide that the salary adjustment must be the product of an agreement but rather that it should be determined on the basis of the increase in the cost of living or inflation and the projected inflation for the following year; the University also states that SINDEU refers to the concepts of “salary adjustment” and “‘salary negotiation” as if they were equivalent, when in fact they are not; (ii) the University met with SINDEU and explained why the adjustment could not be greater and, since no agreement was reached, requested the University Council to determine the salary adjustment; (iii) that Council declined to assume competence, on the basis of the opinion of the University’s Legal Office of 28 October 2015, according to which, in accordance with article 40 of the University’s Organic Statute, it was for the Rector and not the Council to make a final decision on the salary adjustment; and (iv) despite the University’s meeting with SINDEU on the 2017 salary adjustment, by that time, more precisely on 5 April 2016, SINDEU had already filed a lawsuit against the University in relation to the interpretation and application of article 6 of the agreement and was awaiting the judgment.
4. 571. The Committee notes that the complainant organizations also allege that the University has reduced the percentage of the annuity incentive payment contrary to what is provided in the collective labour agreement and more specifically that: (i) in 2009, the University Council increased the annuity incentive from 3 to 5.5 per cent; (ii) in 2015, the Rector and others proposed to the University Council to repeal the 2009 agreement and implement the 3 per cent annuity established in the agreement; (iii) the increase that had been granted since 2009 is an acquired right (under article 79 of the agreement, the provisions, contracts and customs that exceed the benefits established therein must remain in force) and SINDEU therefore requested the Rector to consult the Labour Relations Board, since, under article 25(ch) of the agreement, it is for the Labour Relations Board to rule on issues of interpretation; and (iv) the Rector did not accept that request and in April 2017, the University Council decided that, starting from 2018, the annuity established in the agreement would be paid.
5. 572. In that regard, the Committee notes that the Government and the University indicate that: (i) in 2009 and following a number of Supreme Court rulings, the University was obliged to recognize an annuity of 5.5 per cent for a group of officials; (ii) in order not to disadvantage its other employees, the University Council decided to grant a 5.5 per cent annuity to all employees; (iii) a few years later, the Court’s jurisprudence changed, giving the University the discretion to set the percentage of the annuity; (iv) following the above, in 2015 the University commissioned a study on the economic and financial effects of the increased annuity as a general policy in order to consider possible alternatives in view of the change in Court jurisprudence; and (v) the University considered that it was neither prudent nor appropriate to refer the matter to the Labour Relations Board because the issue had already been dealt with directly between the Rector and SINDEU and because the decisions of the Labour Relations Board, under article 26 of the collective labour agreement, are not binding; and in any case, for the University, article 79 of the agreement, adopted in 1996, refers to provisions, contracts and customs prior to the negotiation of the agreement.
6. 573. In the light of the above, the Committee observes that the present complaint concerns a conflict of interpretation between SINDEU and the University in relation to a number of articles of the collective labour agreement. The Committee observes that the conflict of interpretation concerning article 6 of the collective labour agreement with regard to salary adjustment was brought before the courts by SINDEU. According to public information, the application was dismissed by a judgment delivered on 22 January 2018. The Committee notes that, in that judgment, the court noted that: (i) the agreement failed to specify who should resolve a dispute in the event that agreement could not be reached on the adjustment of salaries, and that article 6 of the agreement did not provide that in the event that agreement could not be reached the Labour Relations Board should be consulted; and (ii) in view of the possibility that the parties might never reach agreement, the rules of the University’s Statute had been applied. The Committee is not aware whether or not SINDEU appealed the above-mentioned judgment.
7. 574. Furthermore, with regard to the conflict of interpretation of the annuity incentive, the Committee notes that, while SINDEU indicates that it had requested the Rector to consult the Labour Relations Board since, under the collective labour agreement, it was for the Labour Relations Board to rule on questions of interpretation, the University indicates that it considered that it was neither prudent nor appropriate for the Labour Relations Board to consider the matter because the issue had already been dealt with directly between the Rector and SINDEU and because the decisions of the Labour Relations Board were not binding. In that regard, the Committee recalls that it has emphasized the importance of resolving conflicts of interpretation of a collective agreement through the mechanisms provided for that purpose by the agreement itself or, in any event, by an impartial mechanism that should be accessible to the parties to the agreement, such as an independent judicial body (see Report 382, Case No. 3162, paragraph 296, and Report 391, Case No. 3243, paragraph 189; both cases concern Costa Rica). Recalling also that mutual respect for the commitments undertaken in collective labour agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1336], the Committee is confident that, in the event of further conflicts of interpretation in relation to the collective labour agreement, these will be resolved in accordance with the provisions of the agreement.
8. 575. The Committee observes that, in any event, according to information published by both SINDEU and the University on their respective websites, the above issues would have been rendered moot since on 5 March 2018, SINDEU and the University signed a new collective labour agreement that has been in force since 6 June 2018. The Committee notes that: (i) article 9 provides for a detailed calculation mechanism for the salary adjustment to be granted in January and July of each year; that article does not indicate that the salary adjustment should be agreed between SINDEU and the University; (ii) article 14 provides that the University shall pay University staff an annuity of 3.75 per cent; and (iii) article 32 provides that it is for the Labour Relations Board to take up the claims brought by workers concerning the rights stipulated in the collective agreement and other related labour rights. The Committee notes that the Labour Relations Board, composed of members appointed by the University and SINDEU, has functional autonomy, the duty of impartiality in the exercise of its functions, is budgetarily attached to the Office of Human Resources and must produce a recommendation within one month of receipt of an application.
9. 576. Finally, with regard to the allegation that the University has not reinstated three dismissed trade union leaders and by so doing would not have implemented the recommendation made in Case No. 3080, the Committee recalls that, in that case, it had noted that the Government had not provided information regarding the procedures provided for in the collective labour agreement in the event of dismissal of trade union leaders, and had therefore requested the Government to ensure that the clauses of the agreement were respected. In that regard, the Committee notes that, according to the University, it had made a commitment to SINDEU that, if they met the entry requirements, it would keep the dismissed workers, who, after participating in several competitions, did not achieve the necessary score. The Committee understands that participation in the competitions was made on equal terms for all participants, including trade unionists.