Rapport définitif - Rapport No. 150, Novembre 1975

25. The complaint from the Confederation of Democratic Workers (CCTD) was submitted by a communication dated 13 August 1973; that of the Trade Union of Workers in the Electrical and Telecommunications Industries (SITET) by a letter dated 15 March 1974. SITET presented additional information on 23 April 1974. The Government submitted its comments by letters dated 5 November and 10 December 1974.

1. 25. The complaint from the Confederation of Democratic Workers (CCTD) was submitted by a communication dated 13 August 1973; that of the Trade Union of Workers in the Electrical and Telecommunications Industries (SITET) by a letter dated 15 March 1974. SITET presented additional information on 23 April 1974. The Government submitted its comments by letters dated 5 November and 10 December 1974.
2. 26. 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. A. The complainants' allegations

1. 27. The CCTD states that during the 58th Session of the International Labour Conference (1973) the Workers' delegate of Costa Rica had accused his Government of trade union persecution and that the Government delegate had undertaken that his Government (including autonomous institutions) would not carry out any reprisals or persecution of any kind against trade union leaders. The complainants add that, disregarding this promise, the Costa Rican Electricity Institute (IOE), an autonomous body whose directors are appointed on government advice and in which there is a Minister appointed by the Central Government, had dismissed members of SITET and brought charges against Mr. Guido Núñez Román, Secretary-General of that union, accusing him of having used the right to strike, negotiated the signing of a collective agreement and exerted trade union pressure to that end.
2. 28. SITET states in its letter of 15 March 1974 that since its registration with the competent administration it has been subjected to considerable pressure from the IOE. Investigations carried out by a special Committee of the Legislative Assembly had revealed that the accusation was justified. A Member of Parliament had then tabled a motion to the effect that the terms of a loan from the Inter-American Development Bank should include trade union immunity (fuero) and the obligation to negotiate a collective agreement. The IOE administrators had then undertaken to change their policy towards the union.
3. 29. In view of this commitment, the complainants continue, SITET had submitted a draft collective agreement in April 1971, but one month later the Institute had transformed one of its own credit associations into a trade union called the ASDEICE and granted it all necessary privileges (furnished office, employee, car and driver, funds for the publication of a monthly bulletin, etc.). This "home made" union, continues the complainants, had also presented a draft collective agreement. Having received two drafts, IOE stated that the two organisations should first of all reach agreement, knowing very well that the puppet union would not agree to do so. The draft agreement had not, in fact, produced any results. Renewed pressure was exerted to make workers leave the SITET, and although the other union fell into Communist hands, according to the complainants, that did not change the IOE's attitude to ASDEICE, some of whose members were even promoted.
4. 30. SITET then submitted a complaint to the Minister. As the manager of IOE stated that the dispute should be submitted to the labour courts, SITET had followed the procedure for the settlement of disputes of an economic and social nature. The parties had been summoned to appear for conciliation, but the IOE had refused to negotiate. SITET had then sought compulsory arbitration, but that had been refused since, under a special Constitutional provision, the Institute was not obliged to go to arbitration. At that point, the workers had decided to strike, although such action was illegal because IOE is a public service. The employer had then dismissed eight workers, all of whom had seventeen years' service, not for participation in the strike but for unlawful acts harmful to the Institute. The complainant had asked the Ministry of Labour to investigate the unfair accusation and the charges had been proved to be unfounded, but the workers had not been reinstated. Also as a result of the strike, the Secretary-General of SITET, Guido Núñez Román, and other members of the executive, together with the dismissed workers, had been accused of incitement to the collective stoppage, which was an offence under Article 334 of the Labour Code; their case was under investigation.
5. 31. Since then, SITET stated, the situation had become worse and pressure on the union had increased; workers had been dismissed on any pretext, without any of the benefits to which they were legally entitled. The management had organised what was known as the "Group for the Preservation of the IOE", composed of all the heads of department, who visited all the work centres to persuade workers to leave the union. According to SITET, it even writes letters of resignation for them. The campaign had enabled management to induce 1,100 members to leave the union. Whereas, according to the union rules, workers wishing to resign from the union must apply to the executive which then gives instructions for deductions in respect of union dues to cease, the IOE, according to the complainant, applies other methods. SITET is sometimes informed by the accounts department that a worker has decided to resign from the union and that his contributions would no longer be deducted from his pay; in such cases the union receives no other information than that given by IOE. In other cases, the worker sends his letter of resignation to the chief of personnel, who gives instructions for the deduction of union dues to cease and sends the union a copy of the worker's letter together with a copy of his own letter to the accounts department. Sometimes the worker communicates directly with the accounts department, which crosses the worker off its list. According to SITET, normal procedures are applied in the case of the other union; workers are not crossed off the list but are forced to remain in that organisation. It adds that it has lodged a complaint with the Ministry of Labour but so far has not heard of any action being taken.
6. 32. The second communication from SITET concerns another practice of the same type: it claims that the chief of the personnel office ceased deducting the trade union dues of some workers, whereas the union had merely asked him to suspend the loan repayments to one of the union's bodies.
7. 33. The Government replied by two communications of 5 November and 10 December 1974. Concerning the dismissal of eight strikers, it pointed out that the action taken by IOE was illegal and referred in this connection to Section 61 of the Constitution and Sections 364, 366, 368 and 369 of the Labour Code. Section 368 specifically bans strikes in public services and stipulates that any conflicts arising in such services shall be referred to the labour courts. Section 369 defines as public services all activities performed by employees of the State or of its institutions where the activities of the State or its institutions are not the same as those of private firms or agencies working for reward.
8. 34. The Government submitted a copy of the ruling of the labour court (and that of the Supreme Labour Court confirming it), to the effect that negotiations had been broken off following a threat of strike which it declared to be illegal. Consequently, it is the Government's opinion that there were sufficient grounds for dismissal under Article 370 of the Labour Code. From later talks held with a view to restoring peace between the employer and workers, the IOE had appeared to be prepared not to dismiss workers merely for having gone on strike and to dismiss only those strikers who had acted in a manner prejudicial to the undertaking by deeds punishable under the Penal Code. In the light of that implicit undertaking and at the request of the trade union, the Ministry of Labour had carried out an investigation into the criminal liability of the dismissed workers. Seven of the eight had not participated in any punishable act, but the Institute nevertheless dismissed them, which it was legally entitled to do.
9. 35. Regarding the criminal proceedings brought against the Secretary-General of SITET, the Government states that the IOE had brought legal proceedings pursuant to Sections 251, 254 and 334 of the Penal Code. The articles in question read:
10. "251. The sanctions specified in section 255, increased by one-third for any person responsible for jeopardising the common weal, shall be imposed for:
11. (1) action to disrupt, damage or destroy plant or equipment designed for the production or transmission of electric power or energy-containing substances;
12. (2) action to disrupt, damage or destroy any means of telecommunication;
13. (3) action designed to impede the repair of plant or equipment referred to in (1) above or the re-establishment of disrupted communications.
    • Should a catastrophe occur because of such action, the penalty shall be imprisonment for three to eight years.
    • Action punishable under this section shall be punishable under Section 246 when such action was undertaken to impede or hamper rescue work subsequent to a disaster or catastrophe.
14. "254. The penalty shall be imprisonment for six months to two years for any person guilty of creating a public danger or of impeding or hampering the normal operation of transport by land, sea, air or water, or of impeding or hampering public communication services or public power services in any form.
15. "334. The penalty shall be imprisonment for six months to two years and a fine consisting of a percentage of the income earned over a period of from 60 to 120 days for any person guilty of having urged officials or employees of public services collectively to abandon their work."
16. 36. The Government points out that Mr. Núñez Roman has never been committed to gaol. The investigating magistrate had ordered "imprisonment and trial", but the accused had been left free pending trial and the case had not closed. During the proceedings, the counsel for the defence had lodged an appeal with the Supreme Court on the grounds that Article 334 of the Penal Code was unconstitutional, but the appeal had been rejected. In addition, a bill had been submitted to the Legislative Assembly for the abrogation of Section 334 of the Penal Code, for which the Social Affairs Committee of the Assembly had, by a majority vote, expressed its support.
17. 37. The Government confirms the existence of a "Group for the Preservation of the IOE", but denies that the group puts pressure on workers to resign from the union. The Government included a large mass of documentation with its comments, including in particular a copy of the report on the investigations carried out by the labour inspectorate on the allegations of trade union persecution. According to this document, the "Group for the Preservation of the IOE" was endeavouring to restore peace amongst the personnel of the Institute at a time when the other union, the ASDEICE, was preparing a strike in sympathy with the SITET strikers who had been dismissed. Twenty-five of the workers questioned had stated to the investigator that they had left the SITET without any pressure from the group. The investigators stated that they had found no proof that members of the group had drafted some of the resignation letters referred to; most of them had been written by the heads of the offices at the various workplaces, in all cases at the request of the workers concerned. The Government attaches to its letter the text of statements obtained from the workers questioned. The reasons given for the resignations included in particular disagreement with the decision to strike and the need to use the union contribution money for other purposes.
18. 38. The document indicates that 198 workers left the union between 1 June 1973 and 31 May 1974. In some cases the worker informed the union of his decision in writing; the worker sometimes asked the employer to cease deducting union dues from his pay because he was leaving the union; there were also cases in which workers sent a collective notice of resignation to the employer in the same way; in the majority of cases, the personnel department had received from the workers concerned a copy of the letter of resignation sent to the union and in such cases the employer had not checked whether the union had in fact received the original. The report in question concludes that the procedure followed by IOE to strike the names of resigning workers from the list it had prepared for check-off purposes is an internal matter, since, when notified of the resignations by one of the means mentioned, the personnel department instructs the accounts department to cease the deduction of union dues from the pay of the former union member.

B. B. The Committee's conclusions

1. 39. The case thus relates mainly to the strike declared by SITET in the Costa Rican Electricity Institute and to certain forms of trade union persecution which are supposed to have taken place within that institute.
2. 40. The Committee notes that relations between the IOE and SITET had been very strained since the creation of that union and that the latter complained of pressures exerted on its members to persuade them to leave the union and of the support which the Institute had given to the creation and activities of another union. The Committee also notes that the strike was started after the failure of negotiations and that, according to the complainants, the IOE refused to submit the dispute to compulsory arbitration as permitted under the law establishing that body. The strike was illegal since IOE is classified as a public service in which all strikes are forbidden (sections 368 and 369 of the Labour Code). According to the employer, the dismissal of eight strikers was due not to their participation in the strike action, but to committed actions harmful to the undertaking and punishable under law. The Committee nevertheless notes that an investigation carried out by the Ministry of Labour disclosed that seven of the eight dismissed workers had not committed any punishable offence. The decision to dismiss them was nevertheless maintained.
3. 41. On the basis of the principle whereby allegations relating to the right to strike are not outside its competence in so far as they affect the exercise of trade union rights, the Committee has, in similar cases and particularly in cases relating to Costa Rica, held that, while restrictions on the right to strike in the public service or in essential services could be accepted, there should, in such cases, be adequate guarantees to safeguard the interests of the workers who are thereby deprived of an essential means of defending their occupational interests, which implies that such restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can participate at all stages. In the case under discussion the strike had been started after the breakdown of negotiations. However, if, as claimed by SITET, arbitration could be refused by the IOE in application of a special provision, the workers of that Institute would be deprived not only of the right to strike but also of the other safeguards mentioned to protect their occupational interests, which is contrary to the principle mentioned above.
4. 42. Regarding the allegations concerning trade union persecution, the investigation carried out by the labour inspectorate showed that twenty-five workers questioned had stated that they had left SITET without undergoing pressure from the group known as the "Group for the Preservation of the IOE", because they did not support the strike, because they needed the money which would have been used for union dues, or for other reasons. However, the Committee considers it somewhat strange that in many cases union members wishing to leave the union communicated firstly and sometimes only with the employer, that union members submitted collective resignations and that resignation letters were often written by the chiefs of offices at the request of the workers concerned. It considers that if the "Group for the Preservation of the IOE" was encouraged by the management to induce workers to leave the union, that would constitute an infringement of freedom of association.