Rapport intérimaire - Rapport No. 297, Mars 1995

367. The complaints in Cases Nos. 1678 and 1695 are contained in communications from the Workers' Confederation (Rerum Novarum) (CTRN), dated 30 September and 5 October 1992, and 11 January, 1 and 6 March 1993. The International Confederation of Free Trade Unions (ICFTU) expressed its support for the complaints in a communication dated 4 June 1993.

1. 367. The complaints in Cases Nos. 1678 and 1695 are contained in communications from the Workers' Confederation (Rerum Novarum) (CTRN), dated 30 September and 5 October 1992, and 11 January, 1 and 6 March 1993. The International Confederation of Free Trade Unions (ICFTU) expressed its support for the complaints in a communication dated 4 June 1993.
2. 368. The International Confederation of Free Trade Unions (ICFTU) presented additional information and new allegations in communications dated 10 August 1993 and 4 March 1994 respectively.
3. 369. The complaint in Case No. 1781 is contained in a communication from the Heredia Union of Workers in Agriculture, Livestock and Allied Occupations (SITAGAH), dated 8 June 1994.
4. 370. The Government sent its observations in communications dated 19 May, 7 and 16 June and 22 and 27 October 1993, and 15 February, 17 March, 26 and 27 April, 20 September and 25 October 1994.
5. 371. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98) and the Workers' Representatives Convention, 1971 (No. 135).

A. The complainants' allegations

• (Cases Nos. 1678 and 1695)
  372. 372 In a communication dated 11 January 1993, the complainants allege that the Government is failing to comply with ILO Conventions Nos. 87 and 98, and the recommendations made by the Committee on Freedom of Association (Case No. 1483), with regard to anti-union discrimination and solidarism. In respect of trade union immunity (fuero sindical), the CTRN points out that the Government has made no legislative overtures to guarantee such immunity, nor has it made any practical moves to protect workers and their leaders from persecution on the grounds of union membership in private enterprises, which means that the union is still at a disadvantage with regard to other, spurious workers' organizations such as solidarist associations.
  373. 373 As regards collective bargaining, the complainants allege that the Government is not encouraging, in law or in practice, recourse to machinery to discuss and settle disputes in any sector, since by broadening the concept of public service, a large category of enterprises is deprived of the right to collective bargaining and to strike. The complainants add that at the request of the Institute of Agrarian Development (IDA), Constitutional Chamber IV issued ruling No. 1969-92, stating that various provisions of the Labour Code on collective conciliation and arbitration in public administrations were unconstitutional because they did not comply with the principle of legality and denied this category of workers any possibility of appealing to labour courts to settle collective disputes, or taking strike action.
  374. 374 The CTRN also states in its allegations that in September 1992 the Líneas Aéreas Costarricenses, S.A. (LACSA) enterprise infringed the collective agreement concluded with the Occupational Association of Air Pilots (APPA) by demanding that pilots should fly longer hours than had been agreed. When they refused, LACSA suspended flights and although the pilots had not called a strike, LACSA informed the Alajuela civil court that there was no crew because the pilots had gone on strike, and requested that the court declare the strike illegal, which it did. The upshot was that LACSA dismissed the so-called strikers and hired foreign pilots; furthermore, through the Aeroser enterprise it subcontracted the pilots who had been dismissed, thus negating the collective agreement signed with APPA and hence the benefits it provided. The APPA lodged an appeal for enforcement of constitutional rights (amparo) with the Constitutional Chamber.
  375. 375 The CTRN alleges, in its communication dated 30 September 1992, that the TALMANA, S.A. enterprise in the Puntarenas province dismissed ten workers simply for joining the National Association of Private Enterprise Workers (ANTEP): Luis Villalobos Cortés, Antonio Boniche Alvarez, Alexis Cruz Calvo, Filadelfo López Guardado, Víctor Manuel Naranjo González, José Didier Araya Núñez, Miguel Barrantes Mendoza, José René Díaz Trejos, Juan Luis Benavides Gutiérrez and Lucía Campos González. The complainants point out that following the appeal for enforcement of constitutional rights (amparo) lodged by ANTEP, the Constitutional Chamber ordered that the decision being challenged by the union be suspended and that the workers who had been dismissed be reinstated, although to date, the enterprise has failed to comply.
  376. 376 Furthermore, the complainants allege that the Government has promulgated the following new legislation and submitted bills to the Legislative Assembly which are contrary to freedom of association and labour stability:
       • - the Bill on the democratization of the public sector, which has not been put to a vote in the Legislative Assembly, plans to cut 25,000 jobs;
       • - the general Act on the concession of public works, which has already been approved by the Legislative Assembly is designed to dismantle one of the largest and best-staffed ministries;
       • - the Bill on the establishment of the National Port Council, which was submitted to the Legislative Assembly, section 51 of which prohibits council workers from taking strike action or totally or partially interrupting work;
       • - the Bill on the settlement of collective disputes in the public service, which was approved by the Legislative Committee and is awaiting approval by the plenary, provides for difficult and cumbersome negotiations which will be virtually impossible to conclude.
  377. 377 In their communications dated 6 March and 4 June 1993, the CTRN and the ICFTU allege that authorities under the Ministry of Education and the Civil Service Directorate refused to continue granting unpaid leave for union business to Mario Rojas Vilchez, CTRN Social Security Secretary, alleging that he had not completed his probationary period in the "El Concho de San Carlos" educational centre which, according to the authorities, had to be done at that school. The complainants adduce that there is no legal basis for that line of argument since Mr. Rojas Vilchez worked in the school for six years after qualifying for the post.
  378. 378 In a communication dated 10 August 1993, the International Confederation of Free Trade Unions (ICFTU) alleges the following instances of trade union persecution in various private sector enterprises:
       • - the Confecciones Imperio S.A. enterprise dismissed the following workers belonging to the trade union: Narvin Mata Sequeira, Marjorie Mata Sequeira and Alejandro Morux Briseño because they had refused to join an employees' solidarist organization. When the Ministry of Labour intervened, the enterprise agreed to compensate the workers dismissed but refused to reinstate them, which left them no alternative but to accept the employer's proposal. Despite the settlement reached, the enterprise is still pressuring workers to withdraw from the trade union by offering, in exchange, a series of benefits from solidarist associations, which has led to a considerable fall in union membership;
       • - the Corporación Peter S.A. enterprise dismissed the following workers on grounds of union membership after paying them the corresponding compensation: Carlos Corrales Arce, Jorge Castro Ugalde, Manuel Acosta Araya, Geiner Cubero Cubero, Rubén Arias Castro, Gerardo Molina Carballo, Adilio Pérez Vargas, Gerardo Ramírez Ledezma, Benigno Múñoz Solórzano, Javier Arguedas Badilla and Francisco Rojas Quesada;
       • - the Patisand S.A. enterprise dismissed Elizabeth Salas Rodríguez, a trade union representative without compensation;
       • - the Corporación Rojas Cortés S.A. enterprise has since October 1993 been harassing workers, mostly union members, dismissed workers and used psychological intimidation to force them to leave the union;
       • - the Compañía Bananera Agropecuaria Río Jiménez S.A. dismissed Luis Alvarado Bertarioni and Gil Contreras Moraga because they signed a list of claims;
       • - the Industrias Realtex S.A. enterprise in November 1992 launched a mass dismissal of workers and members of a trade union branch on the grounds that they had attended a meeting to raise work-related problems with the enterprise. A complaint was filed with the Ministry of Labour, but to date no investigation has been carried out.
  379. 379 In its communication dated 4 March 1994, the International Confederation of Free Trade Unions sent an annex entitled "Report on the situation of trade union rights in Costa Rica", signed by Mr. Mario A. Blanco Vado, of the National Association of Public Employees. The report points out that Act No. 7360 of 12 November 1993 provides that "trade unions shall not undertake the activities of solidarist associations or cooperative associations"; it claims that it is unaware of the government commitment to allow trade union organizations to administer workers' funds (from dismissal compensation funds), which contravenes Convention No. 87 and places serious restrictions on the content of collective bargaining. The Bill which was submitted to the ILO Labour Law and Labour Relations Branch in order to find a solution to this matter was replaced during the legislative proceedings in February 1994 by a version which maintains inequality between trade unions and solidarist associations. Similarly, the new Act provides that trade union organizations may be disbanded if they engage in such activities. The amendment introduced by the aforementioned legislation was not brought to the attention of trade union organizations until it was about to be approved in the legislature, nor was it ever included with the texts submitted to the ILO Labour Law and Labour Relations Branch.
  380. 380 Similarly, according to the report, the new Act improves the situation with regard to anti-union discrimination but does not clearly or conclusively solve the problem of dismissals, solely on the basis of the employer's decision, of workers belonging to a union (section 85 of the Labour Code), during the six-month period after the trade union was established.
  381. 381 Likewise, protection for persons holding trade union office is limited since it applies only to one officer for the first 20 trade union members and a further officer for each additional 25 members, up to a maximum of four officers. This amounts to partial implementation of protection, which should be based not on the number of trade union members, but on the quality of the workers' representative in accordance with relevant Conventions. It should therefore be understood that the Government's obligation in this respect has still not been met with regard to periods following the establishment of the workers' organization and the number of representatives ultimately enjoying protection.
  382. 382 With regard to the amendments the Committee of Experts asked the Government to carry out relating to the right to strike, section 378 of the Labour Code, which limits the right to strike, remains in force, unamended. The Government has managed to give the false impression that it may promulgate an Act on public employment which would change the situation described above and thus ensure compliance with the stated requirements. This is unrealistic. Any Act on public employment would only amend the current restrictions on state employees who cannot exercise the right to strike but not any other activity which, although not constituting state employment, comes under the broad classification of public services in the present legislation. Even in the unlikely event that a bill on public employment were to be passed in the short term, Costa Rica's legislation would still be incompatible with international Conventions because it restricts strike action by using a definition which is not only different from, but also much broader than, the universally accepted definition of essential services as the only public services in which strike action cannot be taken.
  383. 383 The exclusions from the right to strike in Costa Rica's legislation make it necessary to introduce a specific amendment to the aforementioned ordinary law, which the Government has not proposed despite repeated requests to do so. Agriculture and transport, to name but a few kinds of activity, are still defined under the current legislation as public services in which strike action cannot be taken, even if they are not state activities. Thus, the matter has not even been dealt with comprehensively in a bill at the national level.
  384. 384 With regard to collective bargaining in the public administration, several years ago the Government began discussions with the trade union movement on a possible Act on public employment. In an effort to meet the Government's need to take a stronger administrative approach to employment regulation in the public administration, attempts were also made to establish new regulations on collective bargaining and strike action in the public administration. The Bill was widely publicized at the international level and the Government even submitted it to the ILO Labour Law and Labour Relations Branch. These negotiations are still under way and have not been concluded. As a result, the proposed Bill has still not been submitted to the Legislature despite the Government's express commitment to submitting the text on 1 March 1994. Despite the trade union movement's efforts to bring about legislation adequately governing the content of collective bargaining, and the right to strike in the public administration, they have not yet succeeded. 385. Furthermore, although sections 333 and 334 of the Penal Code have been repealed and exercise of the right to strike by public employees and incitement to collective work stoppages in public services are no longer a crime, this does not mean that restrictions on the right to strike no longer exist. Quite the contrary, although there are no specific penal sanctions, strike action is still prohibited for all state employees and, in general, for public services as wrongly defined in current legislation. Similarly, employers continue to use dismissals as a punishment for strike action, and will continue to do so until comprehensive regulations are passed bringing national standards into line with Convention No. 87.
  386. 386 In its communication dated 28 June 1994, the International Confederation of Free Trade Unions (ICFTU) alleges that on 19, 20 and 21 April 1994, 1,000 banana plantation workers at the Geest Caribbean Americas Ltd. enterprise went on strike in protest against a drastic reduction in wages arbitrarily introduced by the company as of the beginning of the month. After the strike action and negotiations between the company and SITAGAH, the union representing Geest workers, the strikers went back to work and the company promised not to dismiss the strikers and to discuss a wage increase. However, the company broke its promise and dismissed 400 permanent workers and 200 Nicaraguan nationals who had been hired on a temporary basis under wretched conditions because they were immigrants and did not have enough money to return home. On 7 May 1994, the workers called an indefinite strike for the following reasons: (a) the enterprise's failure to comply with the agreement reached after the April strike; (b) as an expression of the workers' rejection of working conditions, which include long daily working hours (some of them have to work 13 hours a day) and wage cuts. In addition, they are obliged to use agricultural chemicals without the necessary protection, and women are suffering sexual harassment at work; (c) the company is only willing to negotiate with the workers' standing committee which it set up itself, thus precluding the participation of all the workers. According to information received, the company has negotiated a wage cut of 2,000 colones per hectare (nearly 12 dollars) with this committee.
  387. 387 The ICFTU specifies that the company has taken the following action against the workers:
       • - acted to obstruct migration formalities which would allow the Nicaraguan workers to regularize their residence status and begin routine proceedings in Costa Rica;
       • - dismissed migrant workers who joined Costa Rican trade unions and sent lists of the names of all the workers to other employers to warn them not to hire them;
       • - used security forces to close roads leading to the Sarapiquí area where striking workers had gathered, thus preventing any contact between the workers and the general public.
  388. 388 On 13 May, security forces armed with M-16 rifles fired on workers and violently removed them from the barricades they had erected in Sarapiquí. Some of the workers were injured and others arrested. Following many protests from international trade union organizations and human rights bodies in Costa Rica, the workers were released and the Geest company has shown goodwill by recognizing the SITAGAH trade union and promptly entering into discussions.

B. The complainant's allegations (Case No. 1781)

1. 389. In its communication dated 8 June 1994, the Heredia Union of Workers in Agriculture, Livestock and Allied Occupations (SITAGAH) also referred to the events mentioned in ICFTU's allegations made in its communication dated 28 June 1994 (Case No. 1695). It explains that since 1990 in the central district of the Sarapiquí canton in the province of Heredia, Republic of Costa Rica, banana plantations have been set up, belonging to the transnational English-funded banana marketing company Geest Caribbean Americas Ltd., Costa Rican branch. They employ 1,100 agricultural labourers, approximately 900 of whom were directly hired by the employer and the rest of whom are subcontracted.
2. 390. SITAGAH alleges that Geest Caribbean Americas Ltd. has, since 1990, hired and subcontracted many migrant workers who did not have residence papers (Nicaraguans), who are not entitled to rights under Costa Rican labour law, using them as reserve labour and thus forcing Costa Rican banana plantation workers to accept below-average conditions of work, safety and pay. The employer's arbitrary actions led the workers to contact the SITAGAH union leadership in September 1993, and hundreds of them joined the union, but the enterprise suppressed the union and prevented it from functioning, including by: dismissing workers who had joined the union, and elected union representatives; discriminating in terms of pay and conditions of work; unfair practices against the SITAGAH trade union; rescinding the freedom of trade union officers to meet with workers without the employer's prior authorization; promoting solidarist interference in trade union matters and resorting to violence (with a private police force to prevent unionization) and armed repression (workers were injured and beaten by the police force), in order to break the workers' legitimate strike.
3. 391. SITAGAH adds that since September 1993 it has been applying for recognition and calling for a solution to its members' labour problems. Even though it has formally recognized the SITAGAH trade union, the employer continues to take up all labour issues with workers' standing committees affiliated to solidarist organizations, refusing to discuss them with SITAGAH.
4. 392. In April 1994, the employer's arbitrary acts went as far as cutting workers' wages by more than 6,000 colones per fortnight, which provoked a three-day strike (19, 20 and 21 April 1994), as a result of which the employer enterprise promised to negotiate with SITAGAH on wage issues, on the basis of an agenda drawn up by the trade union. However, the employer did not sit down to the negotiating table, but instead launched mass dismissals of workers belonging to the trade union, and subcontracted workers were removed from the plantation. The enterprise immediately called the migration authorities to ensure that the migrant workers who had no residence papers and who had joined the union were expelled from the country. This situation compelled the workers to call a further strike for 7-21 May 1994. However, on 18 May, using a court order to open up a public right of way as an excuse, the Costa Rican police force, supported by Geest Caribbean private guards, under orders from the employer's representative, moved in on the strikers, 18 of whom received bullet wounds, three of them serious, leaving some workers unable ever fully to work again, and imprisoned 35 workers. To date, two workers are still missing. It should be pointed out that the workers were engaged in a peaceful strike - the strike had not been declared illegal because there were no grounds for doing so in view of the employer's arbitrary acts and the legitimacy and fairness of the workers' demands - however, the enterprise dismissed more than 60 workers, violating the trade union immunity (fuero sindical) to which they were entitled as the dismissals included representatives, elected by workers, on standing committees on the negotiating committee that discussed labour issues on the plantation with the Government and enterprise, and on grass-roots trade union committees, and included members of the trade union executive committee.
5. 393. Furthermore, SITAGAH points out that despite the fact that the problem has not been resolved and that SITAGAH boasts considerable membership among workers still in employment, the employer is preventing trade union officers from meeting freely with workers, using private guards to deny them access to plantations, preventing workers from holding meetings and communicating with persons outside the plantation. As these workers have stated, the Geest Caribbean plantation in Sarapiquí is a concentration camp with flowers, where trade union officers must ask permission of the employers even to speak with members, but may not communicate with other workers or hold union meetings. SITAGAH encloses a memorandum from the banana plantation manager, written and signed in his own handwriting, addressed to the private guards and stating that Mr. Pablo Zuñiga is authorized to speak with trade union members. Nevertheless, the private guards have been present during conversations and workers could not express themselves freely.
6. 394. Meanwhile, the enterprise and the advisory body belonging to the banana industry solidarist movement in Costa Rica, the John XXIII Social School, in the midst of a labour dispute, in an effort to interfere in the dispute and pressurize workers to join the solidarist association, have set up four solidarist associations which have been approved by the Ministry of Labour without questioning their illegal origin.
7. 395. According to the complainant, the Government of Costa Rica adopted an Act on trade union immunity (fuero sindical) but in practice, as in cases such as this, it is not being applied. The Constitutional Chamber legitimized trade union immunity in an erga omnes ruling which is also not being implemented by any state judicial or administrative body in Costa Rica. The State approved legislation prohibiting solidarist associations from interfering in collective bargaining or acting against trade unions. However, the Ministry of Labour and Social Security continues to approve solidarist associations set up to damage trade unions, and approve the collective bargaining carried out between the employer and standing committees belonging to solidarist organizations, thereby excluding the trade union. In the specific case mentioned in this allegation, the employer has set up four solidarist associations and negotiates remuneration with the standing committee.
8. 396. The first labour policy move by the present government was to fire on and suppress the workers of the Geest Caribbean Americas company, who were engaged in legal strike action.

C. The Government's reply

1. 397. In its communications dated 19 May, 22 and 27 October 1993, the Government stated that the essence of the allegations contained in the general part of these cases harked back to the issues dealt with in Case No. 1483 by the Committee on Freedom of Association and the most recent observations of the Committee of Experts, and that these matters were examined by a direct contacts mission to Costa Rica from 4 to 8 October 1993. The Government points out that the current administration has shown particular interest in bringing labour legislation into line with the principles contained in Conventions Nos. 87, 98 and 135, has set up a legal framework specifically designed to protect trade union organizations and their officers, and introduced various bills applying, with ILO technical assistance, the recommendations made by the Committee on Freedom of Association in its 278th Report, and by the Committee of Experts. The Government refers specifically to a recent Act, No. 7360 of 4 November 1993, which, inter alia, amends the Labour Code (with regard to trade union guarantees) and the Act on solidarist associations, bringing them into line with the provisions of the aforementioned Conventions. The Government adds that the claims of inequality between solidarism and trade unionism are false. On the contrary, the Government, on the basis of the recommendations made by the Committee as mentioned above, submitted a Bill to the Legislative Assembly on the establishment of an occupational capitalization and economic democratization fund, which changes the regulations governing compensation upon termination of a contract, thus making it a genuine right for all workers and placing trade unions and solidarist associations on an equal footing with regard to acting as administrators of these funds. Similarly, the Act of 4 November 1993 reduces the minimum number of workers needed to set up a trade union to 12 (in other words, the same number as that required to set up solidarist associations), provides adequate protection against anti-union discrimination and updates the fines for violation of the Labour Code and ILO Conventions.
2. 398. With regard to the allegation of restrictions on collective bargaining and strikes in the public sector, the Government points out that it has been negotiating specific legislation on public employment which contains express provisions on the settlement of collective disputes and the right to strike in this sector since the beginning of 1992 with trade union organizations (including the complainant). With regard to ruling No. 1696-92 of Constitutional Chamber IV, the Government points out that, under the constitutional guidelines in force, the employment relationship between the public administration and its public servants is subject to "particular or special criteria" which do not allow the application of labour legislation on arbitration since the latter was drawn up to cover labour relations in the private sector alone. The Government adds that since public sector workers are barred access to arbitration machinery on the basis of the aforementioned ruling, on 5 March 1993, following discussion with the Central Labour Council (a tripartite body), the Regulations on collective bargaining for public servants were issued, allowing collective bargaining and the exercise of trade union rights in the public administration. These Regulations remain temporarily in force while the corresponding legislation is being passed since, as a result of tripartite consultation, a Bill on the settlement of collective disputes in the public sector will be submitted to the Legislative Assembly; this is part of the Bill on public employment and takes account of observations made by the ILO.
3. 399. With regard to the allegations concerning new legislation and bills supposedly undermining freedom of association and labour stability, the Government, in its communication dated 7 June 1993, points out that the list of annexes sent by the complainants contains extracts from legislation, regulations and bills, and from doctrinaire magazine articles. The Government is therefore unable to comment since in order to do so an objective legal analysis would be required, which would be completely out of place in the present context.
4. 400. With regard to the refusal to grant the union leader Mario Rojas Vilchez unpaid leave for union business, the Government states that the refusal was based on the fact that Mr. Rojas Vilchez is not a permanent official because he has still not finished his probationary period as required under section 20 of the civil service statutes. Furthermore, the Government points out that it is willing to amend legislation on the teaching profession so that state teachers in particular and public servants in general may enjoy unrestricted trade union leave, bringing legislation into line with Convention No. 135. This amendment will be submitted for the approval of the Central Labour Council which is a tripartite body.
5. 401. With regard to the allegation of trade union persecution in several private sector enterprises, in its communications dated 22 October 1993 and 15 February 1994, the Government points out that with regard to:
   • - The Confecciones Imperio S.A. enterprise: the CTRN requested that a meeting be held in the Ministry of Labour so that workers' representatives could settle the case, together with the enterprise, of a number of unjustified dismissals, assumed to have been reprisals against workers who had refused to join a solidarist association as they were members of the National Association of Private Enterprise Workers (ANTEP). During the hearing on 14 July 1992, an agreement was reached whereby the workers who had been dismissed accepted the compensation due, instead of reinstatement.
     • The Government refutes the information relating to alleged trade union persecution in the aforementioned enterprise since the Ministry of Labour and Social Security, through the National Labour Inspection Directorate and the National Labour Relations Directorate, has no record of any complaints, nor has it had through any other suitable channel any reliable evidence of such persecution.
     • However, particular mention should be made of the effective intervention on the part of the Ministry, through its labour relations department, at the time of the alleged dismissals, and the subsequent favourable settlement under which compensation was paid, the minutes of the meeting showing that no reservations were entered by the trade union suggesting harassment.
   • - The TALMANA S.A. enterprise: the labour inspector has heard the allegation made by the president of ANTEP concerning harassment of a number of workers on grounds of union membership and declared it receivable. He intends to institute the legal proceedings called for in the case of violation of labour laws. On 7 June 1993 the complainant who had appealed for enforcement of constitutional rights (amparo) requested that the proceedings and appeal be withdrawn, upon which the Labour Inspectorate closed the case. Subsequently, the president of ANTEP was removed from office by a workers' assembly following internal disputes in the union, and the new representative asked that proceedings be resumed. The Labour Inspectorate agreed and is in the process of investigating the new allegations.
     • In this regard, it should be pointed out that the National Labour Inspection Directorate issued a ruling on 25 February 1993 in which it declared admissible the complaint of union persecution made against TALMANA S.A. by Mr. Carlos Acuña Castro, president of the National Association of Private Enterprise Workers (ANTEP). This clearly shows that the Government of Costa Rica is prepared thoroughly to investigate trade union organizations' complaints of violation of the labour laws which protect trade union activity.
     • However, as provided by law, and authorized under the legal system, the legal representative of the TALMANA S.A. enterprise appealed against the ruling. The ruling has not become absolute, since it was challenged as described and the National Association of Private Enterprise Workers (ANTEP) also filed an appeal for enforcement of constitutional rights (amparo) against the enterprise. As things stand, it is not true that the Ministry has not become involved in the aforementioned case, bearing in mind that it has gone as far as it is allowed under the legal system and there is no evidence of voluntary omission or violation of legal provisions.
   • - The Corporación Peter S.A. enterprise: there are no complaints of violation of freedom of association at this enterprise before the Labour Inspectorate, so it is surprising that a complaint has been made to the Committee before referring to the competent national bodies.
   • - The Patisand S.A. enterprise: the inspection carried out at this enterprise confirmed that Elizabeth Salas had been dismissed at the time she was nursing her child, which is a violation of labour laws. A complaint was therefore lodged with the Labour Court. It was not proven that she was dismissed as a result of trade union persecution, but that this was on the aforementioned grounds.
     • In this case, the allegation is repetitive and groundless because the case had already been referred to the Labour Inspection services, which had taken the Patisand S.A. enterprise before the courts alleging violation of labour and social security legislation.
     • This was because it was proved that the enterprise in question failed to comply with section 94 of the Labour Code, since despite the fact that the worker was nursing her child at the time, the enterprise failed to notify the National Directorate and General Labour Inspectorate of the dismissal and thus prove the misconduct given as the reason for justified dismissal, in accordance with the Labour Code.
   • - The Corporación Rojas Cortés S.A. enterprise: on the basis of inquiries carried out by the Labour Inspectorate in various establishments belonging to the enterprise, the complaint was dismissed. The decision stands firm as it has not been challenged by those concerned.
     • More specifically, the Ministry of Labour and Social Security, through its Labour Inspectorate and labour affairs services, has dealt with all the requests for help to establish violations of various legal provisions, including the allegations of union persecution. The latter allegations have been dismissed because it has been impossible to prove that measures designed to hinder or stamp out trade union activity have been taken. A photocopy of the decision of the National Labour Inspection Directorate dated 2 June 1993 and background information have been enclosed.
   • - The Compañía Bananera Agropecuaria Río Jiménez S.A.: the ANTEP representative requested a hearing in the Ministry of Labour to discuss a number of labour issues with employers' representatives. However, this meeting did not take place as the enterprise replied that labour relations were discussed with the workers' standing committee. The Government points out that at no time did the trade union in question lodge any complaint of union persecution against the workers dismissed, mentioned by the complainant. More specifically, the Government refutes the information on alleged union persecution, since the Ministry of Labour and Social Security has not been informed of any such complaint. Affidavits from the National Director and General Labour Inspector are appended.
   • - The Industrias Realtex S.A. enterprise: this case is similar to that of the Corporación Peter S.A., and Compañía Bananera Agropecuaria Río Jiménez S.A. enterprises. The Government refutes the information provided since the alleged complaint of mass dismissals, including of branch members, in addition to the fact that there is no reliable proof, has not been registered with the Ministry of Labour and Social Security.
     • In any case, there should be some indication of how the Department of Labour Relations of the Ministry in question has dealt with the requests for intervention made by ANTEP with regard to possible bankruptcies and dismissals at the enterprise. Representatives of the enterprise and the trade union were called to a meeting and the settlement reached was satisfactory to and signed by both parties.
     • From the above it can be concluded that the additional information in question is groundless.
   • 402. Furthermore, the Government points out that the trade union organizations have gone as far as presenting complaints to an international body relating to situations which they made no attempt to resolve in due form by, first of all, exhausting national procedures. It is obvious that many of these problems could have been avoided if they had availed themselves of these procedures. In reality, and as has been observed, when they did refer disputes to the courts, the latter correctly applied both the ordinary law and ILO Conventions.
6. 403. In its communication dated 20 September 1994, the Government states that it should be pointed out that the information on the legislative situation in Costa Rica affecting the exercise of the right to organize is littered with rash allegations designed to cast aspersions on the Government's resolve to do its utmost to improve the labour legislation in force in accordance with international standards. The Government recalls the report of the direct contacts mission to Costa Rica (October 1993) and the report of the Committee of Experts, 1994, which includes Costa Rica in its list of cases of progress, specifically with regard to Conventions Nos. 87, 98 and 135. Both reports clearly and openly state the improvements which have been made in labour legislation, improvements which go even further than the observations made by the ILO supervisory bodies, which is why the allegations are no longer relevant or have any legal basis.
7. 404. The Government adds that, contrary to what is stated by the complainants, the Government of Costa Rica, pursuant to the agreement reached with representatives of the major trade union organizations in November 1993, began drafting regulations to improve the understanding and implementation of Act No. 7360. The draft was transmitted for consultation to the representatives of the major trade unions, so that they could suggest amendments to the text and then, on the basis of consensus, the final version could be drawn up.
8. 405. It is essential to point out that the Government of Costa Rica, on 16 August 1994, through a unique move in the history of labour legislation in Costa Rica, designed to bring the country up to date, reinstated the Central Labour Council and submitted a total of 14 international Conventions and 12 Recommendations adopted by the International Labour Conference for consultation to this national tripartite body. The Government is willing now and in the future to maintain permanent and open dialogue with this body on issues of national interest.
9. 406. The Government states that the administration or management of termination funds does not fall to solidarist associations alone. In practice there are provisions, on the basis of a collective agreement, governing trade union participation in the administration of dismissal compensation funds. At all events, the Government reaffirms its decision to support and make the necessary improvements to the Bill on occupational capitalization and economic democratization fund which was submitted to the Legislative Assembly by the previous Government. Of interest to this case, and as called for by the Committee of Experts, is the fact that the Bill does not restrict the administration of dismissal compensation funds to solidarist associations but has clearly made provision for trade union and cooperative organizations to be involved.
10. 407. The Government points out that the complainants' comments on section 369 of the Labour Code which prohibits strikes in the public services and the agricultural sector are no longer valid because a Bill on public employment drawn up with ILO technical assistance has been finalized and put before the Legislative Assembly. This Bill, inter alia, governs the right to strike by public servants in non-essential services in public institutions and defines the public services in which strikes are prohibited or restricted, in particular, through the establishment of minimum services. The provisions which drastically restricted strikes are therefore being repealed. As the situation stands, and since the Bill was drafted with ILO technical assistance, it is clear that the exercise of the right to strike, in general terms, complies with the principles of ILO supervisory bodies, which is why the comments made by the complainants in this regard have no legal or factual basis.
11. 408. With regard to collective bargaining in the public administration, the Bill on public employment was submitted to the Legislature in April 1994 and published in the Official Journal (La Gaceta) on 7 July 1994, in accordance with the national and international commitments made by the previous government. The Bill, inter alia, sets out the principles and general standards governing individual and collective relationships between the central and decentralized public administration and their employees, in accordance with the relevant legal principles. Thus, in respect of collective bargaining in the public sector, Title V of the Bill clearly recognizes the right of association and trade union membership of public employees and the rights derived therefrom. Similarly, it governs the collective bargaining system in the public sector, establishing the scope of application, guarantees for the efficient operation and continuity of essential services, in addition to the aims, conditions, procedures and limits of collective bargaining recognized at the national, occupational and institutional levels.
12. 409. In its communication dated 25 October 1994, the Government reports that the Ministry of Labour and Social Security, through its competent administrative bodies, has dealt diligently and objectively with all the proceedings instituted by workers and their representative organizations with regard to the dispute in the Geest Caribbean Americas Ltd., Proyecto Islas enterprise. These administrative proceedings ultimately led to far-reaching agreements which ended the dispute.
13. 410. In a document dated 21 April 1994, Mr. Luis Pablo Zuñiga Morales, representing SITAGAH and FENTRAP, informed the Ministry of Labour and Social Security that workers on banana plantations 1, 2, 3 and 4 belonging to the Geest Caribbean Americas Ltd. had been on strike for three days because the enterprise was refusing to negotiate the rates of pay for various tasks with standing committees, in accordance with the direct agreement. He also requested that the representatives of the enterprise be summoned to a meeting with a view to reaching a settlement. It should be noted that, far from criticizing the workers' standing committee, the union's request defends and promotes it, contrary to what is stated in the complaint presented to the ILO. On the same day, 21 April, there was a meeting between the parties to the dispute, at the request of the Minister of Labour and Social Security, at which an agreement was reached, thus ending the strike. On 27 April 1994 the parties met to begin the negotiations provided for in the formal statement ending the strike. The negotiations were delayed on several occasions between then and 3 May 1994 because the employer's representatives failed to attend. The Ministry of Labour and Social Security, throughout this situation, remained diligent and committed to establishing dialogue and understanding, as the records show.
14. 411. Nevertheless, the Government adds, although another meeting had been called for 9 May 1994, a new unexpected strike broke out throughout the plantations belonging to Geest Caribbean, Proyecto Islas, Sarapiquí, in the province of Heredia. At that point, the Ministry of Labour and Social Security took steps once again to reach a settlement. In this context, a number of meetings were organized, which in some cases met with opposition from the enterprise, and it was arranged for the parties to the dispute to meet on 16 May 1994. On the same day, through the mediation of the Minister of Labour and Social Security, the parties, namely the representatives of the SITAGAH organization and the Geest Caribbean Americas Ltd. enterprise met in the office of the Minister and signed an agreement to end the dispute. Subsequently, several meetings were held in the Ministry of Labour and Social Security to monitor compliance with the terms set out in the agreement.
15. 412. To date, the third item in the agreement is still to be resolved, hopefully in the next few days, since the legal representatives of the enterprise and the trade union organization attended the tenth meeting of the Committee on Work on Plantations held at the ILO, Geneva, Switzerland.
16. 413. The Government considers that the complainants are misrepresenting the facts by contradicting what they themselves stated in item 7 of the aforementioned agreement dated 16 May 1994, to the effect that "both parties place on record their gratitude to the Minister of Labour and Social Security, Dr. Farid Ayales Esna, for his timely and valuable mediation in this matter. Thanks to his diligence, the parties reached an acceptable agreement in the interests of industrial peace in the Sarapiquí area." "Both parties" means the Geest Caribbean Americas enterprise and the SITAGAH trade union. This was how the situation stood and on the principle of good-faith bargaining and legal security, The Ministry of Labour and Social Security, by acting as mediator and finding a solution to the dispute has shown its commitment to ensuring respect for the terms agreed between the parties, and the case of Geest Caribbean has been no exception, as is clear from the documents appended. They show the Government's repeated efforts to ensure implementation of the terms of the oft-mentioned agreement dated 16 May 1994, in full respect of the "pacta sunt servanda" principle.
17. 414. In this context, the Government considers that the complaint is rash, irrelevant and damaging to the principle of good faith since the process leading to implementation of the items in the agreement is under way, and the SITAGAH union leadership signed an agreement settling the dispute, but days later lodged a complaint with the ILO against the Government of Costa Rica alleging violation of freedom of association and interference by solidarist associations in union matters and collective bargaining at Sarapiquí banana plantations.
18. 415. One example to be noted is the incongruity in the union's position as it tries to take two different tacks at the same time. According to a memorandum dated 16 June 1994 after the complaint referred to in this report had been lodged, the Secretary-General of SITAGAH asked the Ministry of Labour and Social Security to review the procedures for examining dismissals, as provided for in item 3 of the document dated 16 May. In the memorandum, he also provided information on the appointment by his organization of representatives to sit on the "tripartite committee" provided for in the document to look into the dismissals. In view of all this, the Government of Costa Rica cannot understand why the complainant organization is turning to an international body to make accusations against a government which has always been willing to deal with its problems. Furthermore, on 20 August 1994 the Secretary-General of SITAGAH once again requested that, pursuant to labour legislation and the institution's rules of procedure, the Ministry of Labour and Social Security should summon the Geest Caribbean Americas Ltd. enterprise with a view to resolving the following problems: follow-up to the document dated 16 May 1994 and the deduction of trade union dues, as requested by members and the trade union.
19. 416. As can be seen from the above, in terms of ministerial mediation, a series of efforts were made which resulted in a far-reaching agreement that ended the dispute. This confirms the rashness of the complaint in question in so far as it has neither a factual nor a legal basis, which is why it should be rejected outright, bearing in mind that it was lodged after the dispute was settled. Furthermore, it should be noted that the Government has gone beyond conciliation and mediation efforts. It went as far as carrying out labour inspections, through the National Directorate and General Labour Inspectorate of the Ministry of Labour and Social Security. Its efforts in dealing with the union claim of persecution and unfair labour practices are set out below.
20. 417. The National Directorate and General Labour Inspectorate have, at all times, carried out the necessary procedure to deal with the complaint of union persecution lodged by SITAGAH against the Geest Caribbean Americas Ltd. enterprise. At present, as can be seen from the information enclosed, the investigation into the matter is at the stage of receiving and analysing the documents provided by the complainant union.
21. 418. On the other hand, and since the complaint mentions alleged violent incidents between the Costa Rican Civil Guard and a number of workers, it is important to point out that the Civil Guard acted in compliance with a warrant from the office of the mayor of Sarapiquí, in the province of Heredia, on the basis of a decision of 11 May 1994 that the police should re-establish access to the highway and remove obstacles preventing free circulation, as the highway had been blocked by a group of demonstrators. In any case, it should be noted that the security forces operate in accordance with the constitutional legal system and the competent judicial authority. The actions of the security forces which were present at the scene of the events and are mentioned in the complaint were in conformity with the prevailing legal order and institutional structures of our country.
22. 419. It should be pointed that the complainants instituted legal proceedings. However, their efforts came to nothing because they were badly planned, as the case was within the competence of ordinary labour courts, and not the Constitutional Chamber, where they lodged their grievance.
23. 420. Finally, the remaining allegations of unfair labour practices, including: the dismissal of workers belonging to trade unions, solidarist interference in union affairs, and the use of private police forces to prevent trade union expansion by the Geest Caribbean Americas Ltd. enterprise (Costa Rica branch) against the complainant trade union are being examined by the National Labour Inspection Directorate, which will submit a report.

D. The Committee's conclusions

1. 421. The Committee notes that the allegations concern: (1) legal shortcomings with regard to strikes and collective bargaining in the public sector and protection against anti-union discrimination; (2) a number of Acts and Bills to restructure the public sector; and (3) various cases of discrimination and anti-union practices; (4) respective roles of trade unions and solidarist associations.
2. Allegations relating to legislation and bills
3. 422. With regard to legal shortcomings in the area of anti-union discrimination, collective bargaining and strikes, the Committee notes the explanations given by the Government and the observation made by the Committee of Experts at its February 1994 meeting, taking into account the report of the direct contacts mission from 4 to 8 October 1993 which noted recent and important changes in legislation. The Committee wishes to highlight the following paragraphs of the report of the Committee of Experts (observation on the application of Convention No. 87) related to recent Acts and Bills (the Committee included Costa Rica in its list of cases of progress with regard to Conventions Nos. 87, 98 and 135):
4. The Committee notes with satisfaction that Legislative Decree No. 7348 repeals sections 333 and 334 of the Penal Code, under which public officials and employees who went on strike could be punished by imprisonment and fines. The Committee also notes with satisfaction that Act No. 7360 of 4 November 1993 complies with various requests made by the Committee in its previous observation:
5. - with regard to the request by the Committee of Experts and the Committee on Freedom of Association that solidarist associations refrain from engaging in trade union activities and, in particular, in collective bargaining, the new Act prohibits these associations from "undertaking any kind of activity tending to combat or in any way hinder the formation and operation of trade unions and cooperative organizations"; "signing collective agreements or direct arrangements relating to labour"; "participating in hiring and collective labour agreements". The new Act also states that "When there is a trade union in an enterprise, to which at least a simple majority of its workers belong, the employer is prohibited from collective bargaining of any type with anyone but the union. Any agreement signed that conflicts with the provisions of this section shall not be registered or approved by the Ministry of Labour and Social Security, nor can it oppose trade union interests";
6. - with regard to the request by the Committee of Experts and the Committee on Freedom of Association that all unequal treatment of solidarist and trade union associations be eliminated, under the new Act trade unions may be formed with a minimum of 12 members (the same number as is required for solidarist associations);
7. - with regard to the request by the Committee of Experts and the Committee on Freedom of Association that effective protection be guaranteed against all types of anti-union discrimination, the new Act:
8. (a) prohibits "actions or omissions that tend to avoid, limit, restrain or prevent the free exercise of the collective rights of workers, their trade unions or coalitions", and also establishes that "any Act arising from such actions or omissions is absolutely null and void and shall be penalized under the provisions of the Labour Code, its supplementary or appended Acts concerning infringements of prohibitive provisions";
9. (b) stipulates that the following shall enjoy labour stability: members of trade unions being formed (for a period of no longer than four months); certain trade union officials (while holding their posts and for six months subsequently); and candidates for the executive committee (for three months following announcement of their candidacy). In the case of the dismissal without just cause of workers enjoying labour stability, the Act stipulates that "the competent labour court shall declare such dismissal null and void, and shall subsequently order that the worker be reinstated and paid all outstanding wages, in addition to penalties for which the employer is liable pursuant to this Code and its supplementary and appended Acts";
10. (c) stipulates that "punishable infractions are those actions or omissions committed by employers, workers or their respective organizations that transgress the norms provided in Conventions adopted by the International Labour Organization, ratified by the legislative body, and the norms provided in this Code and in social security Acts". The new Act provides a list of penalties, which may be as high as 23 months of minimum wages.
11. The Government also stated that on 8 October 1993, the Supreme Court of Justice declared receivable an appeal for enforcement of constitutional rights (amparo), in direct application of Conventions Nos. 87, 98 and 135, ordering the reinstatement of the trade union members who had been dismissed without notification of the grounds of their dismissal.
12. ...
13. The Committee also notes with interest two bills which give effect to requests it had made for trade union organizations, and not just solidarist organizations, to be able to administer compensation funds for dismissed workers (the Bill respecting the occupational capitalization and economic democratization fund), under which the concept of public services for which strikes are prohibited is limited to essential services in the strict sense of the term, namely those the interruption of which could endanger the life, safety or health of the whole or part of the population (the Bill on the statutory system of public employment and civil service, which repeals subsections (a) and (b) of section 369 of the Labour Code, which excessively restricted strikes in the public, agricultural and forestry sectors). (This Bill also contains provisions governing collective bargaining in the public sector.)
14. The Committee welcomes the considerable progress which has been made as regards the application of Conventions Nos. 87, 98 and 135 and requests the Government to keep it informed of developments relating to the two above Bills (for which technical assistance has been received from the Office).
15. 423. Furthermore, the Committee of Experts, at its February 1994 meeting, in its observations on the application of Convention No. 98, stated the following with regard to the right to collective bargaining of public employees not engaged in the administration of the State:
16. In its previous observation the Committee expressed the hope that the Bill on collective bargaining in the decentralized public sector would shortly be adopted.
17. In this connection, the Committee notes the Government's statement in its report that, since the Labour Code does not apply to the public sector, the Central Labour Council (a tripartite body) drafted regulations to fill the legal void, and the Government Council adopted it by means of Directive No. 162 of 9 October 1992, which guarantees workers' right to collective bargaining. Section 18 specified that the Regulations were provisional pending the submission to the Legislative Assembly of a Bill on dispute settlement in the public sector. The Committee also notes from the Government's report that a bipartite committee (government-unions) has been negotiating the above bill since May 1993 and the results achieved are satisfactory to both parties. Furthermore, an agreement signed on 8 November 1993 by the Government and certain union organizations contains a commitment to complete the text at the latest by the last day of February next year so that the Executive can present it to the Legislative Assembly. If the whole text cannot be submitted, at least the parts concerning collective bargaining and strikes in the public sector will be presented. The Government points out that the ILO's suggestions have been carefully followed in this matter.
18. The Committee hopes that the legislation on collective bargaining in the public sector will be adopted in the near future and that it will be line with the provisions of the Convention, and asks the Government to keep it informed in this respect.
19. 424. The Committee endorses the comments made by the Committee of Experts on the considerable progress in legislation with regard to Conventions Nos. 87, 98 and 135. Furthermore, the Committee urges that the Bills on public employment, collective bargaining and strikes in the public sector, and the training fund (which have already benefited from ILO technical assistance and have been submitted to the Legislative Assembly) be adopted in the near future and will be in full conformity with the terms of the ratified Conventions concerning freedom of association and collective bargaining. The Committee urges the Government to expedite the passage of these Bills and continue this process with ILO technical assistance, in particular to guarantee fully the right to strike of agricultural, livestock and forestry workers, and to ensure that collective contracts in the public sector cannot not be revised by the authorities once they have been concluded.
20. 425. Furthermore, the Committee observes that the complainants have objected to the General Act on the concession of public works and a further two Bills on restructuring the public sector ("democratization of the public sector" and "the National Port Council"), and that according to the Government, it is unable to comment on the matter because the complainants have not provided precise details. The Committee notes that these texts do not concern the exercise of trade union rights, with the exception of section 51 of the Bill on the National Port Council, which prohibits strikes among Council workers. The Committee considers that these workers should be entitled to exercise the right to strike because they are not civil servants acting on behalf of the public authorities, nor do they provide an essential service in the strict sense of the term. In general, as the two Bills may lead to major restructuring if they become law, the Committee requests that the authorities consult the trade union organizations, if they have not already done so.
21. Allegations of anti-union discrimination and practices
22. 426. With regard to the alleged dismissals and anti-union practices, the Committee notes the statements made by the Government to the effect that the Labour Inspectorate has declared inadmissible the allegations of dismissals and intimidation aimed at forcing workers to withdraw from the union at the Corporación Rojas Cortés S.A. enterprise. The Committee also notes that, according to the Government, the trade union representative Elizabeth Salas was dismissed by the Patisand S.A. enterprise because of her maternity leave (not because she was a trade union member), and that the matter was duly submitted to the labour courts. With regard to the dismissals at the Confecciones Imperio S.A. enterprise, the Committee notes that the workers dismissed reached a financial settlement with the enterprise, but observes that the Government has not given any reason for the dismissals. As the Committee cannot exclude an anti-union element behind the dismissals and given the doubts in this regard, it emphasizes the principle that no person should be subjected to anti-union discrimination because of his or her legitimate trade union activities and that the remedy of reinstatement should be available to those concerned in such cases of anti-union discrimination.
23. 427. With regard to the alleged anti-union dismissal of ten workers from the TALMANA S.A. enterprise, the Committee notes that, according to the Government, the Labour Inspectorate confirmed that union persecution had taken place and declared that the complaint was receivable. The Committee observes that these dismissals are under review by the judicial authorities and requests the Government to keep it informed in this respect.
24. 428. Furthermore, as regards the alleged dismissals at the Corporación Peter S.A., the Compañía Bananera Agropecuaria Río Jiménez S.A. and Industrias Realtex S.A. enterprises, the Committee notes with regret that the Government has merely stated that the complaints are incorrect and that the persons involved did not lodge the corresponding complaints. The Committee wishes to point out that since these allegations were made prior to the promulgation of Act No. 7360 of November 1993 at a time when adequate protection against anti-union discrimination was not available, this may explain why the persons involved did not appeal to national authorities. In view of the detailed nature of the allegations, the Committee requests the Government to take the necessary measures to enable trade union leaders and members who have been dismissed because of their legitimate trade union activities to secure reinstatement in their posts. The Committee also calls on the Government to reply to the allegations concerning dismissals and anti-union practices at the LACSA enterprise on which it has not yet submitted its observations.
25. 429. With regard to the alleged refusal to grant union official Mario Rojas Vilchez leave on trade union business, the Committee notes that according to the Government, the refusal was on the grounds that he was not a permanent staff member at the educational centre in which he worked. The Committee believes that the granting of trade union leave provided for in legislation or collective agreements should not depend on whether or not the worker in question is a permanent staff member, particularly in the case of a union official who, according to the complainants, had already worked at the centre for six years. The Committee therefore requests the Government to take measures to ensure that, henceforth, Mr. Rojas Vilchez is not prevented from taking trade union leave to which he is entitled, and notes that the Government intends to amend its legislation in order fully to guarantee the right to trade union leave.
26. 430. As regards the allegations surrounding the dispute between banana plantation workers and the Geest Caribbean Americas Ltd. enterprise, the Committee notes the Government's explanations and the fact that the National Labour Inspection Directorate will submit a report on the matter in the near future. While noting the serious nature of these allegations, the Committee will postpone consideration of them pending this report and requests the Government to inform it whether a judicial inquiry has been opened into the violent incidents which took place and left a number of workers injured.