Rapport intérimaire - Rapport No. 129, 1972

1. 212. The complaint was contained in a communication, dated 29 April 1971, addressed direct to the ILO by the Homoeopathy Workers' Union of Costa Rica. By a communication dated 14 June 1971, the complainants presented further information in substantiation of their complaint. The complaint and further information having been transmitted to it, the Government communicated its observations in a letter dated 20 December 1971.
2. 213. Costa Rica has ratified both 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. A. The complainants' allegations

1. 214. In their communication dated 29 April 1971, the complainants state that their union was founded on 20 October 1969, when a request for registration was submitted to the Trade Unions Office of the Ministry of Labour. By a note dated 9 December 1969 that office made an observation concerning the statutes submitted by the union and proposed that a general assembly be convened so that the statutes might be amended as regards the part relating to funds. A note dated 12 December 1969 was also received from the chief of the Trade Unions Office of the Ministry, requesting the union to comply with the observations made by the Ministry concerning the amendment of the statutes.
2. 215. In a communication addressed to the Ministry, continue the complainants, the Trade Unions Office was informed of the decision of the extraordinary general assembly of the union which took place on 21 January 1970. In this communication it was stressed that the recommendations of the Ministry had been observed, and that the union had proceeded to amend the statutes as required.
3. 216. On 11 March 1970, state the complainants, the chief of the Trade Unions Office sent the union a note informing it of the registration of its Constitution and statutes and at the same time indicating the entry at which the union was registered (vii volume 12, folio 97, entry 1211, dated 6 March 1970, of the register of trade unions and other social organisations). In accordance with section 274 of the Labour Code, an extract of the registration was published in La Gaceta and the Diario Oficial three times in succession.
4. 217. In a letter dated 11 January 1971, a copy of the minutes of the ordinary general meeting of the union, as well as reports concerning finance and other matters and the most recent list of members, was sent to the Trade Unions Office. A reply to this communication dated 26 January 1971 was received from the chief of the Trade Unions Office of the Ministry.
5. 218. On 30 January 1971, continue the complainants, the Trade Unions Office informed the union that the document relating to the assembly of the union in January 1971 had been received, that its presentation had been approved and that it had been recorded in the registers kept for this purpose by the Trade Unions Office of the Ministry.
6. 219. The complainants add that in a note dated 2 April 1971 the chief of the Trade Unions Office of the Ministry communicated to the union a copy of a letter dated 26 February 1971, addressed by the Ministry to the Secretary of the College of Physicians and Surgeons, in which it was stated that the Legal Department of the Ministry, having examined the circumstances of the matter, had concluded that the Homoeopathy Workers' Union was not legally in existence and that the Trade Unions Office of the Ministry had accordingly deleted it from the register and made application to the court for its judicial dissolution.
7. 220. In a communication dated 14 June 1971, the complainants state that a request was made by the union for a meeting with the Ministry of Labour so that a solution to the problem raised by the College of Physicians and Surgeons might be found. The Minister refused such a meeting on the grounds that the matter was sub judice. A further communication was sent by the union to the Minister on 22 April 1971 but no reply was received.
8. 221. The complainants further allege that the union wrote to the Legal Department of the Ministry on 22 April 1971, requesting information on the legal grounds upon which action for the dissolution of the union had been taken. The Ministry replied in a letter dated 11 May 1971 that the union had been informed of the legal decision given on the matter by the Department in a letter dated 20 May 1970.
9. 222. In support of these allegations the complainants supply copies of all the correspondence and documents referred to in the preceding paragraphs.
10. 223. The Government, in its reply dated 20 December 1971, points out that the First Labour Court is at present considering the application for dissolution of the Homoeopathy Workers' Union. The Government explains that the Ministry of Labour and Social Welfare is empowered by sections 281, 273 and 275 of the Labour Code (as amended by Act No. 2561 of 11 May 1960 and Act No. 3372 of 6 August 1964) to apply to the courts for the winding-up of trade unions having a membership of fewer than 20 if they are associations of workers carrying on a trade or profession on their own account.
11. 224. The Government also refers to the Act for the foundation of the College of Physicians and Surgeons (Act No. 3019 of 9 August 1962) and the Regulations for its administration (Act No. 3 of 9 January 1967). Section 4 of the Act of 1962 provides that no person who has not previously registered with the College may practise medicine or surgery or any special branch thereof, and that authorisation is required from the College for the practice of other ancillary branches of medical science, including homoeopathy, except in the case of persons registered in such branches with other professional colleges. The Government adds that section 5 of the same Act provides that only persons registered with the College or authorised thereby may hold public office in connection with the professional practice of medicine, or branches thereof, except in the case of persons registered with other professional colleges in those branches.
12. 225. The Government states that in 1970 the Ministry of Labour and Social Welfare was notified by the College of Physicians and Surgeons that none of the members of the executive of the union in question was authorised to practise homoeopathy in conformity with the Act, and that up to 1970 only three medical practitioners had been authorised to practise homoeopathy in Costa Rica. As far as the other branches of medicine were concerned, only the optometrists had formed their own professional college.
13. 226. Under the Regulations for the administration of the Act, continues the Government, the College of Physicians and Surgeons was the only body competent to authorise the practice of homoeopathy, and since only three persons had so far been thus authorised, no union could be formed in accordance with the provisions of the Labour Code. In addition, the Government draws attention to the legal provisions of the Health Code of 1949, which makes it illegal for unauthorised persons to practise certain paramedical occupations (including homoeopathy). Under the Penal Code, the unlawful practice of medicine and related occupations is a criminal offence.
14. 227. In the light of these considerations, concludes the Government, the Ministry, exercising the powers vested in it, applied to the First Labour Court of San José for the winding up of the union in question. The Government adds that the union's legal advisers have lodged an objection to this application and the Court will accordingly reach such decision as it thinks appropriate. The Government concludes by stating that, in its opinion, there is not the slightest evidence of anti-union persecution.
15. 228. The Committee observes that the Homoeopathy Workers' Union, founded in 1969, was duly registered by the Trade Unions Office of the Ministry of Labour and Social Welfare after compliance with the request of that office to amend the statutes concerning the matter of the funds of the union. The union appears to have functioned normally as such until April 1971, when it was informed by the Ministry that, information having been received from the College of Physicians and Surgeons, an application had been made to the Court for its dissolution. The information supplied by the College was that up to 1970 only three persons in Costa Rica had been authorised by the College to practise homoeopathy. Such authorisation, the Committee notes, is a requirement laid down by law for the practice of homoeopathy and certain other special branches of medicine.
16. 229. The Committee has also taken account of the provisions of sections 273 and 281 of the Labour Code (as amended) which provide that a workers' organisation, or an organisation of persons independently exercising their profession, may not be formed with fewer than 20 members, and also, inter alia, that in the event of non-compliance with this provision the Ministry of Labour and Social Welfare shall apply to the labour courts for the winding up of such an occupational organisation. Since, the Government maintains, only three medical practitioners had been authorised to practise homoeopathy in the country, it follows that the minimum membership requirement had not been fulfilled for the establishment of an organisation of persons independently practising homoeopathy.
17. 230. In many countries there exist laws and regulations which are enacted, in the public interest, for the control of the exercise of various professional activities. Such rules are, of necessity, stringent in order to ensure that the general public may have adequate protection against persons who may seek to exercise professional activities without the qualifications or authorisation by the supervisory professional body which may be necessary before doing so. The Committee has observed that, in Costa Rica, the medical profession is governed by laws and regulations of this kind, and it is these regulations and the law governing the establishment of trade unions which the Government invokes as justification for the application to the courts for the dissolution of a union consisting, apparently, of three properly qualified and duly authorised homoeopaths and a number of other persons who have not received proper authorisation to practise this branch of medicine. The Government argues that the union is not a union constituted by at least 20 persons exercising their profession independently, as required under section 273 of the Labour Code.

B. B. The Committee's conclusions

1. 231. The Committee has no information before it, nor has the Government contended, that the work actually performed by those members of the union in question who, according to the Government, are not authorised to practise homoeopathy is performed in contravention of the law governing the practice of this branch of medicine. It would therefore seem that these persons are engaged in work connected with, or ancillary to, the practice of homoeopathy and that it is not considered that special authorisation is essential for this type of work. The Committee considers that such persons, provided they are legally performing activities in connection with the profession of homoeopathy, should be entitled to the protection afforded by the freedom of association Conventions.
2. 232. Furthermore, the membership requirement contained in section 273 of the Labour Code is applicable not only to organisations of persons independently exercising a profession, but also to organisations of workers in general. According to the information supplied by the Government, this provision would appear to be interpreted in such a manner as to place a restriction on the forming of an occupational organisation consisting both of independent professionals and of employees (trabajadores) as defined in section 4 of the Labour Code, despite the fact that they all exercise functions in the same occupational sphere. Such a restriction would, in the opinion of the Committee, constitute an infringement of Article 2 of Convention No. 87, which guarantees to workers, without distinction whatsoever, the right to establish and to join organisations of their own choosing.