Rapport définitif - Rapport No. 305, Novembre 1996

1. 148. The complaint in this case is contained in a joint communication from the National Service of Underground Waters, Irrigation and Drainage Professional Employees' Association (ASES) and the Costa Rican Workers' Movement (MTC), dated 8 January 1996. The ASES subsequently sent additional information in a communication dated 24 January 1996. The Government sent its observations in a communication dated 25 July and 17 October 1996.
2. 149. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 150. In their communications of 8 and 24 January 1996, the SENARA Professional Employees' Association (ASES) and the Costa Rican Workers' Movement (MTC) allege that the SENARA dismissed 17 workers, including Miguel Céspedes Araya, the Association's general secretary, Greivin Madrigal Chavarría, recording and correspondence secretary, and recently Ana Nájera Herrera, ex-secretary-general and active militant.
2. 151. The complainants add that the Ministry of Labour and the parties concerned agreed to the setting up of a tripartite committee to examine whether the dismissal of the first 17 persons was legally justified and the possible reinstatement of the workers entitled to be reinstated. The complainants add that although in October 1995 this committee considered unjustified the dismissal of the trade union officials, Mr. Céspedes and Mr. Madrigal, the Government did not act upon this decision.

B. The Government's reply

1. 152. In its communication of 25 June 1996, the Government states that in accordance with national legislation and ILO Conventions Nos. 87, 98 and 135, ratified by Costa Rica, any actions or oversights tending to avoid, limit, restrict or prevent in any way the free exercise of the collective rights of workers, their trade unions or workers' associations, are prohibited. The National Board of the Labour Inspectorate is the technical body officially delegated by the Ministry of Labour and Social Security to inquire into, by any means it considers necessary, infringements of legislation in connection with unfair labour practices of which it is aware. It is important to note that the ASES did not submit any complaint whatsoever to the above-mentioned board on the grounds of trade union persecution or unfair labour practices. The Government regrets that this organization appealed to the ILO without first having exhausted all the mechanisms of inquiry and settlement guaranteed by the national legal system in the event of cases such as that submitted by the complainants. This bears witness to a flagrant temerity on the part of the complainant organizations as well as an ignorance of the state of law prevailing in Costa Rica.
2. 153. Concerning the alleged dismissals carried out by the SENARA, including two trade union officials, the Government of Costa Rica points out that the Ministry of Labour, through the General Board of Labour Affairs, convened on numerous occasions SENARA representatives and workers from this organization with a view to examining the dismissals of several workers at this workplace. After a number of ministerial initiatives and meetings, a meeting was held on 21 August 1995 in the office of the Minister of Agriculture and Livestock attended by representatives of this ministry, SENARA, ASES-MTC and the Ministry of Labour and Social Security; on this occasion, they agreed to set up a committee to look into the termination of contracts of a group of workers. On 13 October 1995, the Department of Labour Relations issued its opinion on the complaint submitted by ASES alleging infringements of labour legislation and arbitrary dismissals by the employers. It is relevant to note in this paragraph that in accordance with the legal system in force, the Department of Labour Relations' role in cases of this nature is to try to prevent the development of disputes between employers and workers or to reach an out-of-court agreement, if these have already occurred, at the request of any of the parties concerned; and it was within this mandate that the Department intervened. It thus summoned the parties to hear their case and propose possible means of settlement, in accordance with the labour legislation. However, the proposals put forward by departments of this type are not of a binding nature, unlike those specifically stipulated by law - such as those issued by the Attorney-General of the Republic.
3. 154. For this reason, it is important to reproduce in full the reply to the hearing granted by the Ministry of Labour to the SENARA, pursuant to the complaint in question and in order not to undermine the right of hearing and legitimate defence:
4. 1. SENARA is an organization which respects of the free exercise of trade union rights and it has never, throughout its history, been subjected to any proceedings which questioned matters of this nature; neither has it ever been penalized for such facts.
5. 2. To meet a number of temporary needs occasioned by the implementation of the second stage of the Arenal-Tempisque irrigation project, SENARA was obliged to recruit officials in various branches of activity in addition to its permanent staff. Once the needs of this project were over, the contracts of the temporary staff in question came to an end.
6. 3. The former officials, Miguel Céspedes Araya, Greivin Madrigal Chavarría and Parménides Furcal Beriguete, were never members of the SENARA permanent staff. They belonged to a group of employees recruited on a temporary basis as part of the special services. Their employment relationship terminated when their temporary contracts came to an end, as indicated in the documents issued by the Department of Human Resources of this institution which are enclosed herewith.
7. 4. The fact that amongst the group of temporary workers there were employees belonging to a trade union was in no way linked to the termination of their contracts and the claim made by the trade union sector that the tacit grounds for their dismissal was their involvement in trade union activities, hoping in this way to obtain benefit not due to them, is devoid of any substance. At the time the labour contracts were terminated, there was no dispute of a trade union nature that SENARA might settle or try to settle by unlawfully dismissing trade union officials; in these circumstances, this would have been as absurd as providing medicine to someone who was not sick.
8. 5. The burden of proof in this case lies with those who claim that the tacit grounds for terminating the labour contracts in question was the exercise of trade union rights and activities of the former officials.
9. 6. In August 1995 a committee was set up by this ministry to analyse the termination of the labour contracts of the complainants. The following resulted from the work of this committee:
   • (a) the committee was set up with a view to analyse the actual occurrences and to determine if there had been infringements of trade union rights;
   • (b) within the committee, the trade union sector requested that the work should confine itself specifically to the reinstatement of six former officials. The employer was in agreement to discuss this subject pointing out specifically that:
     • - in the case of officials with temporary posts, their reinstatement would involve the creation of permanent posts which was not within the competence of the commission but that of the Budgetary Authority;
     • - in addition to the above-mentioned consideration, there would have to be a technical examination of each case to determine, in the light of the institution's needs, whether the creation of these posts was justified;
     • - any decision taken would require the necessary funding and comply with the standards in force regulating this area;
       • all the above was put down in writing before the final decision and contained in the respective file;
     • (c) at the request of the trade union sector the committee did not discuss or examine evidence on the legal or financial aspects. The examination was restricted to the technical aspect of the case;
   • (d) as might reasonably have been expected, the positions of SENARA and the trade union sector were opposed and the Ministry of Labour's opinion was awaited to settle the dispute;
   • (e) we were surprised by the fact that the opinion finally put forward by the Ministry of Labour referred to freedom of association; although this had been vaguely referred to by the trade unionists, this aspect was not examined within the committee and no proof was furnished in relation to this subject. Our attention was also drawn to the fact that the ministry did not merely put forward an opinion but unilaterally decided on measures to implement a decision taken which was outside the competence and scope of the committee, such as the reinstatement of two officials, thus making this decision null and void;
   • (f) SENARA subsequently requested the opinion of the budgetary authority which considered, in the same way as SENARA, that the termination of the labour contracts was in no way related to the freedom of association of the ex-officials in question and that their reinstatement would not be in line with our legislation in force.
10. 155. The Government adds that the role of the Labour Relations Department is that of an "arbitrator", unless the parties to the dispute agree that the final decision should be of a binding nature, which was not the case in this particular instance. On the contrary, the complainant organizations did not, in this particular case, as stated at the beginning, exhaust all the proceedings of the National Board of the Labour Inspectorate. This body is legally entitled, once the existence of unfair labour practices has been ascertained, to initiate legal proceedings with a view to safeguarding rights protected by law and to request penalties provided for under the labour legislation in force, irrespective of any other legal measures that might be taken.
11. 156. As regards the ruling handed down by the Budgetary Authority, dated 3 January 1996, this upheld SENARA's arguments that the workers Miguel Céspedes Araya and Greivin Madrigal Chavarría were not permanent members of staff but employed on a temporary basis and that they were perfectly aware of the fact that they were recruited on a fixed-term contract. It confirmed that the termination of the employment relationship of the above-mentioned former officials was consistent with the period of time for which they were appointed and did not constitute an infringement of freedom of association on the part of SENARA.
12. 157. For the above reasons, the Government is of the opinion that the complainants, in this particular case, are clearly unaware of the national mechanisms for settling disputes, both administrative and legal, provided for in the present legal system. It is therefore totally unfounded to condemn the Government for an alleged cause of action which, up to now, has not been a subject of complaint brought before the competent administrative and legal authorities. Furthermore, it has been clearly demonstrated that the Ministry of Labour and Social Security's action was in full conformity with the law and that it took the necessary steps to attempt to safeguard workers' rights. The Government believes that the complaint should be rejected.
13. 158. In its communication of 17 October 1996, the Government stated that Mrs. Ana Nájera Herrera, ex-secretary-general of the ASES did not complain to the officials of the Ministry of Labour and Social Security, and regrets that ASES did not exhaust internal procedures before presenting this complaint. The Government attached a copy of the reply of the management of SENARA concerning her dismissal, which indicates that the employment relationship of Mrs. Ana Nájera Herrera was based on a contract for a specific task and that hiring her corresponded to the needs of this task. The employment relationship with Mrs. Ana Nájera Herrera was terminated upon the completion of the task, without any anti-union motive. Mrs. Ana Nájera Herrera received the indemnity provided for by the law and has made no administrative complaint.

C. The Committee's conclusions

1. 159. The Committee notes that in this complaint the complainant organizations have alleged: (1) the termination of the labour relationship of 17 workers from SENARA, including the trade union officials Céspedes Araya and Madrigal Chavarría; and (2) the subsequent dismissal of the trade union militant and former secretary-general of the ASES, Mrs. Ana Nájera Herrera
2. 160. The Committee notes that according to the documentation sent by the Government, the matter of the 17 dismissed workers was submitted to a tripartite committee which decided to concentrate on the cases of six persons. The Committee subsequently upheld the dismissals of four of these (votes of the Ministry of Labour and SENARA - Ministry of Agriculture) and decided to leave without effect the dismissals of Céspedes Araya and Madrigal Chavarría. The representative of the Ministry of Labour also considered that there were violations of freedom of association in these two cases.
3. 161. The Committee notes, however, that the ruling of the tripartite committee is not in line with that of the budgetary authorities who stated that Céspedes Araya and Madrigal Chavarría were temporary workers and that the termination of their employment relationship was in keeping with the period of time for which they were appointed and did not constitute an infringement of freedom of association. The SENARA institution justifies the termination of the temporary contracts of the two officials on the grounds that they had come to an end and that the project undertaken was gradually completed. SENARA denies having been prompted by anti-union feelings and points out that at the time of the events there was no dispute of a trade union nature. Finally, the Government seems to deny that the conclusions of the tripartite committee were of a binding nature and points out that those concerned did not make use of the administrative and judicial proceedings provided for under the legislation.
4. 162. Taking into account all the available facts and in particular the findings of the work of the tripartite committee and the considerable delay which would be incurred if proceedings were brought before the administrative and legal appeal authorities, the Committee requests the Government to take steps to encourage the reinstatement in their jobs of trade union officials, Céspedes Araya and Madrigal Chavarría.
5. 163. Finally, as concerns the allegation concerning the dismissal of the trade union activist and ex-secretary-general of ASES, Mrs. Ana Nájera Herrera, the Committee notes that the employment relationship was based on a contract for a specific task and that this relationship was terminated upon the completion of this task. The Committee notes that the Government denies the existence of any anti-union motive and that it states that the person concerned did not complain to the competent authorities, but rather that she accepted the indemnity provided by the law.