2007 Annual Survey of violations of trade union rights - Costa Rica
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Costa Rica, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca372b.html [accessed 28 October 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Capital: San José
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
The legal barriers to organising trade unions in the public and private sectors remain numerous. In practice, unionised workers, or those attempting to organise themselves, face many obstacles, above all in the export-oriented agricultural industries. The collective agreements covering the public sector have been dismantled and the authorities are conniving in the de-recognition of collective bargaining. There has been a general increase in anti-union violations in Costa Rica.
Trade union rights in law
The law specifies the right of workers to join unions of their choosing without prior authorisation. Unions may form federations and confederations and affiliate internationally. A union must have more than 12 members, denying the employees of small enterprises the right to organise. The government has repeatedly ignored ILO recommendations to remove the 12 member limit.
Lack of protection: Only a very limited group of trade union representatives are legally protected from dismissal and in practice this protection is not respected. In fact, some new grounds for dismissal have been introduced that solely apply to union leaders. There is no legal obligation on an employer to prove grounds for the dismissal of workers covered by trade union protection.
The law sets out complicated administrative procedures by the national labour inspectorate (DNIT) for the reinstatement of trade unionists claiming unfair dismissal. Even where a violation has been clearly proven, the DNIT has to submit the case to the courts to initiate a legal process which may take many years. There are no guarantees of reparation for any damages caused, and there is no legal mechanism to oblige an employer to comply with a court order to reinstate a worker.
No constitutional protection of freedom of association: The Constitutional Court has denied recourse to legal protection for defending the right of freedom of association, unlike other human rights, where such protection is provided. Combined with the sluggishness and inefficiency of the normal workings of the Labour Inspectorate and the law courts, this is contributing to the total lack of protection of trade union rights.
Foreigners excluded: Foreigners are prohibited from holding office or exercising authority in trade unions. Again, the government has repeatedly ignored ILO recommendations to change this.
Right to strike: Strikes are officially permitted in the private sector, provided that strict requirements are met. At least 60 per cent of workers at the enterprise must support the strike, which is considered excessive by ILO standards, and to prove this, the unions have to name those workers who support the strike. Furthermore, lengthy legal procedures must be followed.
Strikes are permitted in the public sector with the exception of essential services, where they are banned. There is a clearly defined list of essential services, which includes railway, maritime and air transport, and loading and unloading at docks and wharves – which is not compatible with the ILO definition of essential services.
Collective bargaining: Employers are obliged to enter into collective bargaining with a trade union that requests it and represents over one-third of the workforce.
That said, collective bargaining is at risk of disappearing completely. A Constitutional Court ruling of May 2006, declared collective agreements concluded in certain public bodies, institutions and enterprises unconstitutional. This and similar subsequent cases have resulted in an increasing number of public sector workers losing the right to negotiate collectively. This is creating a case law that totally contradicts the protective principles that existed previously. The notion of a collective agreement being an instrument enabling the unions to obtain benefits over and above the legal minimum standards is completely disappearing. In December 2006 four national trade union centres, the CTRN, the CMTC, the CGT and the CCTD/RN filed an official complaint to the ILO.
In addition, the draft law that had been before Parliament for ratifying ILO Convention 154 on the promotion of collective bargaining, was finally shelved indefinitely this year.
Trade union rights in practice
Consistent failure to protect trade union rights: The effective exercise of trade union rights is made very difficult in practice. There are virtually no trade unions in the private sector and there are constant complaints to the Ministry of Labour regarding anti-union harassment in the few private companies where unions still exist. At the same time, those unions in the public sector, of which there are many more, are being subjected to a continuous de-recognition campaign by the government, the chambers of commerce and the media. As a result, the duty of the Ministry of Labour and Social Security to promote freedom of association is being totally ignored, and there are no instruments available for doing so. Thus the state is becoming complicit in these violations and is, in fact, directly responsible for the lack of protection of trade union rights.
Freedom to dismiss and labour flexibility used as anti-union strategies: The trade unions have long complained that private sector employers refuse to recognise them and dismiss workers who try to join a trade union. Such dismissals are becoming the main barrier to forming new trade unions in the private sector. The growth of employment in the informal economy and of short-term contracts and sub-contracting are increasing workers' insecurity, whilst scaring off even those people with stable jobs who want to organise themselves and join a union. Likewise, "flexible" contracts are impeding any attempts to organise.
Complicit public authorities and slow and inefficient procedures: Such behaviour, although illegal, is tolerated by the authorities and sanctions are too mild to be dissuasive. Given the complex procedures involved, seeking the reinstatement of workers who have been unfairly dismissed takes an average of three years or more, which is long enough to remove a trade union. The DNIT usually takes longer than the maximum two month period foreseen by the Constitutional Court to certify a violation. When a trial eventually takes place, it can be several years before a verdict is reached. In the meantime the workers tend to give up their battles.
The courts and the Labour Inspectorate are extremely slow and inefficient. There are not enough labour inspectors to cover the various conflicts arising from violations of freedom of association.
"Solidarismo" and other anti-union forces: One of the biggest obstacles to the free exercise of trade union rights is the culture of "solidarismo" which is deeply embedded. Created initially in the 1940s to counter the success workers' organisations were then enjoying, the "solidarismo" (solidarity) associations provided workers with certain advantages. In exchange, they promised not to strike and agreed to avoid other forms of confrontation.
The promoters of "solidarismo", who were responsible for dismantling the unions in the banana plantations in the 1980s, are still the principal opponents of trade unions today. According to reports from trade unionists, the workers' "representatives" from the Escuela Social (Labour School) "Juan XXIII" are company auditors and the people running anti-union campaigns within the banana and pineapple plantations. Unlike the supporters of trade unions, who are impeded every day in their efforts to organise themselves, the representatives from Juan XXIII enjoy the full support of companies in carrying out their anti-union activities.
Statistics show that "solidarismo" associations have consistently outnumbered trade unions by four to one, particularly in the private sector. The encouragement of "permanent workers' committees", which are legally recognised, is another pro-employer strategy to neutralise the work of the unions.
Collective bargaining virtually non-existent in the private sector: In the private sector, collective bargaining has been reduced to a bare minimum. Instead of collective agreements, there are many "direct arrangements" with non-unionised workers who are grouped together in "permanent workers' committees". The legislation allows for the creation of such committees provided there is a minimum of three workers, whereas for a union to be recognised as a bargaining unit, it must have a minimum of 12 workers and represent at least one third of employees. The unions have been critical of the fact that, in most cases, these "direct arrangements" are favoured by employers as a means of preventing the creation of trade unions and avoiding signing and applying collective agreements. They also encourage the development of "solidarismo".
Expansion of the pineapple plantations is following the anti-union model of the banana plantations: Harassment of trade unions is a daily occurrence in the pineapple plantations. The companies pass round "blacklists" so as to avoid recruiting people who have joined trade unions, dismissals are made continually and unionised workers are discriminated against and subjected to strong pressure and threats or else offered incentives to give up their union work. Offering promotions and other benefits to trade union leaders is a common tactic used in both industries for weakening trade unions.
Export processing zones (EPZs) with no unions: The few unionised workers in EPZs also face harassment and unfair dismissal. The small number of labour inspectors are unable to deal with the numerous cases of unfair dismissal. Organising is virtually non-existent in these EPZs.
Violations in 2006
Background: On 8 May the government of Oscar Arias came into power, proclaiming that one of its main tasks would be to adopt the Free Trade Agreement (FTA) signed between Central America and the United States. This has been one of the main sources of dispute between the country's trade unions and labour organisations and its government. The FTA excludes a series of crucial workers' rights that are included in the Constitution, such as the right to strike.
Anti-union case law of the Constitutional Court: The Constitutional Court has been taking votes based on a selective interpretation of labour legislation that undermines freedom of association. Two votes this year have demonstrated the anti-union stance of the Court. The first was to throw out a request for a writ from the national association of public and private employees ANEP (Asociación Nacional de Empleados Públicos y Privados) against the local authorities in Guácimo for refusing to allow the union leader Yahaira Chambers Moya to attend executive committee meetings. The Court maintained that the right to attend the activities organised by the union was not absolute but subject to the arrangements of the company or institution. The second judgement supported the local authority of Nicoya in a dispute over its failure to make the correct wage deductions for the fees of members of the union. The Court deemed that in order to make such check-offs the union must demonstrate that the person in question wanted them to be made, which the union regards as an unnecessary requirement.
The Court also rejected two further requests for writs filed by the ANEP this year, both related to freedom of association, on the grounds that that right did not automatically deserve its protection. The request for a writ against the Management of the Central Region's Labour Inspectorate was rejected, since the latter did not accept a judgement by the labour inspectors investigating alleged anti-union practices by the Executive President of the National Women's Institute (INAMU) against two leaders who had received threats. It also rejected a request for a writ for violation of the appropriate procedures in a case of unfair dismissal of two union leaders affiliated to ANEP in the town of Nicoya.
Various collective agreements declared unconstitutional: The dismantling of collective agreements has continued with support from the Constitutional Court. A series of votes adopted by the Court in May and October annulled some specific articles and standards contained in the seven collective agreements covering the public sector. The latter were termed unconstitutional on the grounds that they granted superior benefits to those provided for in the Labour Code and that as these were not available to all working people in the country they should be regarded as "irrational and disproportionate privileges". This year the following organisations were affected: the National Electricity and Lighting Company, the Administration of the Atlantic Port Authority, the National Security Institute, the San José Social Protection Agency, the National Social Security Agency, the "Consejo Nacional de Producción" (National Production Council) and the Banco Popular ("People's Bank"). The rights that were removed or reduced included allowances enabling trade union activists to carry out organising work, financial bursaries for workers and their families, severance pay in the event of dismissals, and bonuses and wage increases.
Violation or failure to recognise existing collective agreements: On 7 April, the Labour Judge of the Court of Second Instance rejected a plea from employees of the Social Protection Agency related to their collective agreement, on the grounds that the latter was no longer in force since the Court had declared it to be unconstitutional, and forced them to pay the legal costs.
On 4 May, the Civil and Labour Judge of the Court of Second Instance of the Atlantic Region dismissed the plea of a worker claiming the payment of wages based on a collective agreement, on the grounds that the latter could not be viewed as superseding the law, since that could lead to the granting of unlimited privileges to workers.
Five trade unions, ANDET, ANEP, ANRO, SITET and SINACO, signed a collective agreement with the National Postal Company ("Empresa Correos de Costa Rica S.A. ) and the agreement was endorsed by the Ministry of Labour and Social Security on 9 June. The management, however, decided to leave the provisions of the agreement in abeyance, since it regarded them as workers' rights that went beyond those stipulated in the Labour Code.
The National Printing Press Administration failed to meet the financial commitments stipulated in the collective agreement signed during the year with ANEP, on the grounds that no budget was defined.
Attack on trade union office: On 24 May, shortly before the ILO Labour Conference in Geneva, and one day after the CTRN had make a public protest against the FTA and the undermining of the guarantees relating to collective agreements, the union's offices were ransacked by unknown persons, who attacked five employees, destroyed some materials, and stole electronic equipment and files containing information on the complaints that the union centre was drafting on cases of violation of freedom of association for submission to the ILO Conference. The attackers knew the name of the confederation's leader, Rodrigo Aguilar, along with other information, so it seems likely that this was no ordinary crime.
Death threats: The public sector union leader Albino Vargas received a series of death threats, in anonymous messages, all clearly stating that if he failed to give up the struggle against the FTA with the USA he would face the same fate as Parmedio Medina, a Costa Rican journalist, who was assassinated in 2001.
Trade union leader sentenced to jail: On 6 November, the leader of the union CONATRAB Orlando Barrantes was handed down a two-year suspended sentence, with orders not to re-offend for three years for the purposes of that sentence. The Interior Ministry transformed a scuffle during the strike in Limón province in December 2000, between demonstrators and anti-riot police trying to arrest them but prevented from doing so by the crowd, into what they termed the "kidnapping" and holding of the police "for ransom". These were the trumped up charges brought against Barrantes, which typify the tendency to criminalise trade union action. According to the various labour organisations that supported Orlando at his trial, the testimonies against him were false and manipulated by the Ministry. The union leader decided to lodge an appeal.
Unions dismantled in the banana plantations: In Finca Cariari 4, a banana plantation belonging to the BANACOL company that supplies the multinational Chiquita, a group of workers belonging to the plantation workers' union, Sindicato de Trabajadores de Plantaciones Agrícolas (SITRAP), formed a branch committee on 20 March. Within two months, seven union members had been dismissed, including two leaders of the committee, a few days after the committee was set up by SITRAP.
The management also immediately implemented a range of measures to put pressure on the members to leave the union: moves to heavier duties with lower pay, threats to place them and their families on the blacklists passed around all the firms in the region, higher quality and productivity requirements and various unjustified forms of punishment. They also offered incentives for leaving the union: a day's wages and transport costs for going to hand in their union cards, free breakfasts and lunches if they did so, better wages, etc. In addition, they carried out a persistent campaign of discrediting the union, exerted psychological pressure on all workers not to join it, threatened to close down the plantation and refused to recognise any of the actions of the union committee. To weaken the union further they also reduced the fees and failed to pass them on to the union. At the same time the company encouraged all the anti-union work of supporters of the Escuela Social Juan XXIII and of the members of the Permanent Workers' Committee, supporting their provision of information to affiliated workers and granting them permission to hold meetings during working time, paying them special bonuses for encouraging workers to leave the real union and allowing them full freedom of movement around the plants.
The banana company Compañía Bananera Atlántica Limitada (COBAL), another subsidiary of Chiquita, was denounced by the agricultural workers union, Sindicato Industrial de Trabajadores Agrícolas Ganaderos Anexos de Heredia (SITAGAH), for unfair dismissal and psychological harassment of its members in the company, including some members of the executive committee. In addition to sacking them, the company put them on blacklists to prevent them from finding work in other plantations or companies.
Impossible to forms unions in the pineapple companies: In the Piña Fruit SA company, which sells its produce to Dole and is known for its terrible working conditions and constant violations of workers' rights, it is impossible to form trade unions. On 2 June a first group of workers was organised by SITRAP. The company proceeded to ban members of the union from entering the plantations for organising purposes and immediately began an anti-union campaign supported by members of the Permanent Committee and the representative of the Escuela Social Juan XXIII, the main promoter of "solidarismo". The strategy consisted of threatening workers who failed to leave the union with the closure of the plantations. They did this by visiting the plantations and speaking to the workers, explaining how the banana plantations had been closed down in the 1980s and showing union members a video in the firm's office depicting violent situations caused by trade unionists in the banana plantations and the human misery caused by the closure of those plantations in the south, which they blamed on the existence of trade unions in that region. All of these presentations took place during working days and were paid for by the company.
In September 2006, the Ministry of Labour and Social Security discovered that the union was being harassed in the Collin Street Bakery company, a supplier of pineapples to Dole, and that there were problems negotiating a collective agreement and setting trade unions freely.
Dismissals disregard trade union protection rights: José Ángel Martínez Giraldo and Marvin Santiago tried to form a trade union in the investment firm Inversiones Tapachula S.A., only to be sacked the day after their first meeting, along with everyone who had attended the meeting.
At the national Tourism Institute, the President and Secretary, respectively, of the ANEP Branch Committee, Marco Tulio Picado Méndez and Maria Eugenia Poveda, were sacked on 1st May, supposedly as part of a restructuring of the institute.
The SINTRAINDECO trade union was set up at the National Directorate for Community Development (DINADECO) and one month later in July two members of the Executive Committee and three signatories of the founding documents were dismissed. At the end of 2006 the DNIT (National Directorate for Labour Inspection) had still not responded to accusations of trade union harassment and unfair employment practices.
Trade union leave denied: The ANEP denounced the unfounded rejection by the Tourism Institute of requests for trade union leave for organising activities and restrictions on the number of people participating in such work.
ANEP also reported that the local authority of Coronado was continuing to refuse leave to attend union meetings to Elena Fernández Ramos, President of the Executive Committee of the ANEP Branch Committee.