2008 Annual Survey of violations of trade union rights - Costa Rica
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Costa Rica, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca99c.html [accessed 24 May 2016]|
Capital: San José
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
The government of Oscar Arias and its followers deployed a strategy of trade union persecution in response to the growing opposition to government policy, the attempts to defend the role of the state and the international campaigns in support of workers' rights. Two union leaders received dismissal orders, three faced administrative and judicial proceedings, and 18 were indicted. The Labour Ministry, far from protecting union rights, joined in with the violations.
Trade union rights in law
The law specifies the right of workers to join the 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 is 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.
A bill to reform the current lengthy and inefficient labour dispute resolution process is being studied by a tripartite commission within the Supreme Labour Council.
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 positions of 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 are defined as activities directly linked to the national economy or public health. The list, however, includes railway, maritime and air transport, and loading and unloading at docks and wharves – which is incompatible 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.
Notwithstanding, collective bargaining is at risk of disappearing completely. A Constitutional Court ruling of May 2000 declared collective agreements concluded in certain public bodies, institutions and enterprises unconstitutional. This is creating a case law that totally contradicts the protective principles that existed previously. The notion of a collective agreement being an instrument that enables the unions to obtain benefits over and above the legal minimum standards, and that contributes to better income distribution, is being totally undermined, having been classed as a means of securing unreasonable and disproportionate privileges. Collective bargaining is no longer seen as a means of settling disputes, challenging the autonomy of the parties and the legitimacy of collective agreements.
In addition, the bill aimed at ratifying ILO Convention 154 on the promotion of collective bargaining was finally shelved.
Trade union rights in practice and Violations in 2007
Background: The social movement opposed to the Free Trade Agreement with the United States gathered increasing force at the beginning of 2007, compelling the government to hold a national referendum (the first ever) to decide on the ratification of the FTA. An intense and imbalanced campaign followed, pitting the business sector and the government, backed by the solidarista movement and the mass media, against trade unions, social organisations and citizens grouped within the patriotic committees set up to oppose the agreement. The campaign ended on 7 October with a disputed victory for the Yes vote, amid widespread reports of irregularities and illegalities in the process along with denunciations of manipulation by the government and business leaders and the intervention of the United States government.
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, the public sector unions, which form the vast majority, 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. The MTSS is, meanwhile, publishing literature promoting "direct arrangements" as an "alternative" to trade unions, limiting the authority and autonomy of workers and undermining internationally recognised trade union instruments such as the right to strike and collective bargaining. The state is thus 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. Legally recognised freedom of dismissal facilitates these anti-union strategies and is becoming the main barrier to the formation of new trade unions in the private sector, as any attempt to organise carries the risk of instant dismissal. Likewise, "flexible" contracts are impeding any attempts to organise. The job instability arising from short-term contracts or subcontracting fuel workers' fear of losing their jobs and thus constitute a means of repressing the right to form and join unions.
Complicit public authorities and slow and inefficient procedures: Such conduct, 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, 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 case eventually goes to trial, it can take several years to reach a verdict.
"Solidarismo" and other anti-union forces: One of the biggest obstacles to the free exercise of trade union rights is the deeply embedded culture of "solidarismo". 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 advisors and the leaders of 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. The high profile of the solidaristas in defending the corporate stance during the FTA Referendum provides confirmation of which side these organisations are on and whose interests they represent.
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 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 promoted by employers and the Labour Ministry to prevent the formation of unions and encourage "solidarismo".
Pineapple plantations expand and follow the anti-union model of the banana plantations: The pineapple companies have not only occupied some of the old banana plantations and sell to the same multinational trading companies, but are also reproducing the same anti-union tactics. Harassment of trade unions is a daily occurrence in the pineapple plantations, which circulate "blacklists" to avoid recruiting people who have joined trade unions. Dismissals are constant and unionised workers are discriminated against and subjected to strong pressure and threats or offered incentives to leave the union. Promotions and benefits are commonly offered to anti-unionists in both sectors.
Export processing zones (EPZs) with virtually no unions: The few unionised workers in EPZs also face harassment and unfair dismissal. The number of labour inspectors remains far too low to deal with the amount of unfair dismissals among this large segment of the workforce. Organising is virtually non-existent in the zones.
Trade unionists face legal proceedings following complaint filed with ILO: On 15 January, Mario Núñez Arias, a member of parliament from the Libertarian Movement, filed a complaint against a large group of trade unionists to the Attorney General, accusing them of having committed the "crime" of denouncing the Costa Rican government to the ILO for violation of freedom of association and the right to collective bargaining. The complaint includes a call for the dismissal of the trade union leaders, who work for government institutions.
Gilbert Brown, Rodrigo Aguilar and Tyronne Esna, leaders of the CTRN trade union centre (Central de Trabajadores Rerum Novarum), along with Dennis Cabezas and Olman Chinchilla, leaders of the CMTC (Central del Movimiento de Trabajadores Costarricenses) are among the trade union leaders accused. A total of 18 trade unionists were denounced.
The complaint was lodged by the same parliamentary group that had earlier filed a case with the Constitutional Court against clauses of collective bargaining agreements, providing further proof of its blatant anti-union policy aimed at de-legitimising the instruments of trade union organisations, by firstly declaring collective agreements unconstitutional and now trying to indict trade unionists for filing complaints to tripartite international organisations.
Bad example set by Labour Ministry, accused of violating trade union rights: In April, the staff association of the Labour Ministry, AFUMITRA (Asociación de Funcionarios del Ministerio de Trabajo), denounced the Minister and Vice Minister of Labour and Social Security (MTSS) for unduly hindering the right to collective bargaining and trade union representation, preventing the union at the MTSS from freely exercising its role.
The first cause for complaint was the excessive delay in the processing of the draft Collective Agreement. Nine months had gone by since the union had submitted the draft and the process had still not been launched.
The second cause for complaint was the attempt to undermine the trade union representation of the workers. The MTSS had launched a process of restructuring within the National Pensions Office without consulting the union, setting up subcommittees with representatives of the Administration but not the workers.
On 8 November 2007, the Labour Inspectorate ruled that there were grounds for filing cases in the Labour Tribunals against the Minister and Vice Minister of Labour and Social Security, Francisco Morales and Guillermo Matamoros. However, the hearing had not yet been convened by the end of the year.
Neither were measures taken to correct the situation at the Ministry. AFUMITRA was not included in the subcommittees of the restructuring process, despite commitments made to do so. Nor did the Policy Commission for the Negotiation of Agreements in the Public Sector submit the report needed for the launch of the bargaining process.
Persecution and dismissal of union leaders at the INS: On 16 October, the Board of Directors of the National Insurance Institute (INS) decided to dismiss, without employer responsibility, two leaders of the INS staff union UPINS (Union de Personal del INS) – the Women's Secretary, Alicia Vargas Obando, and the General Secretary, Luis Alberto Salas Sarkis. Salas is also the General Secretary of the general workers' confederation, the CGT (Central General de Trabajadores).
Attempts were made to justify the dismissal on grounds of alleged incorrect use of trade union leave on three occasions during 2004 and 2005, despite the fact that this case had already been heard following a complaint lodged by the previous administration in 2005 and was dismissed on verifying that the leave granted to Alicia Vargas was in keeping with that established in the collective agreement. Two years later, the INS reopened the case in a deliberate bid to harass the leadership of the UPINS, which is the strongest opponent to its plans to open the insurance market within the framework of the FTA implementation agenda.
The Board's vote in favour of their dismissal came at the very moment the UPINS had entered the electoral period to select its leaders, and was a blatant attempt by the Administration to interfere in the elections and discredit the union leaders, to prevent them from being re-elected to the Executive.
The CGT filed a complaint with the ILO Committee on Freedom of Association, denouncing the Costa Rican government for the persecution of trade unionists. The trade union leaders also lodged two appeals for protection with the Constitutional Court based on irregularities in the process. The Court agreed to examine the two appeals and, as a result, the INS was unable to implement the decision. At the end of the year the Court had still not pronounced a ruling and the dismissal order remained paralysed, but the INS Administration's resolve to uphold the decision did not wane, despite a strong international campaign against it.
Banana company dismisses unionists as part of strategy to obstruct collective bargaining: On 1 November 2007, nine unionised workers at the Tayrona and Cañaveral plantations were dismissed during collective bargaining negotiations between the Chiriquí Land Company workers' union, SITRACHIRI, and the banana company. The workers dismissed were Ramiro Rivera Hernández, Hilario Guerrero Santos, Darío Villagra Santos, Galletano Villagra Torres, Gendry Castillo Castillo, Luis Muñoz Meza, Mario Jesús Juarez Vallejo and Fidencio Beker Palacio.
Galletano Villagra Torres had been one of the negotiators of the previous collective agreement and his dismissal is a clear sign of the company's strategy to remove the more experienced unionists from the negotiations and thereby undermine the bargaining process. This tactic impedes the negotiations since one of the sides, the union, is weakened.
Trade union persecution in the guise of administrative and legal processes: During the first week of December, the presidency of the Costa Rican Electricity Institute (ICE) filed charges with the Public Prosecutor's Office against three trade union leaders from the ICE staff union, the ASDEICE (Asociación de Empleados del ICE). The President of the union, Fabio Chavez, and two members of its Executive, Francisco Aguilar García and Jorge Arturo Vega, were faced with the accusations after blocking access to the main entrance to the ICE on 26 November. ASDEICE had taken this step as part of a nationwide day of action by trade unions and civil society groups in protest at the government bill to deregulate the telecommunications sector as part of the FTA implementation agenda.
At the same time as pressing criminal charges, the company filed a case against the three leaders for "breach of duty", to investigate the incidents of that day. The real motive behind the action taken by the ICE is to rid itself of the trade union leadership, which poses a major obstacle to the plans to liberalise the economy and fulfil the commitments undertaken with the signing of the FTA.