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Costa Rica: Labour union for construction workers in Costa Rica; procedures to made a complaints to the Minister of Labour

The following information was provided on 6 February 2002 by the Under-General Secretary of the Central del Movimiento de Trabajadores Costarricenses (Confederation of Costa Rican Workers Movement, CMTC). Founded in 1994, the CMTC is composed of various labour organizations in the private, public and rural sectors (ibid.).

The construction sector in Costa Rica is almost entirely controlled by private businesses (ibid.). There are very few labour organizations in the construction sector for the following reasons : "persecution" (persecución) from the employers, the limited means of the Ministerio del Trabajo (Department of Labour) and delays in the court system to resolve conflicts (ibid.). The Under-General Secretary did not elaborate on what actions employers take.

There is a union for the construction sector within the CTMC known as the Sindicato de la Industria Metalúrgica y Afines (Union of Steel Industry and Related Unions) (ibid.). However, its leaders and its affiliated members have been dismissed from their jobs and a case concerning their dismissal is pending in court (ibid.). The CTMC has asked that the fired workers be reinstated and paid their salary since March 1994, when their employment was terminated (ibid.).

The mandate of the Department of Labour is to resolve labour-management conflicts (ibid.); an employee must present his or her complaint to a labour investigator (inspector de trabajo) from the Department of Labour (ibid.). The investigator takes the information provided and meets with the employee and employer representatives (ibid.). A negotiation process is initiated when there is a disagreement, following which, the amount to be paid by the employer is calculated if relevant according to the law (ibid.). If the parties disagree on the amount, the case is presented to a Labour Tribunal (Tribunale de Trabajo) "whose decision will not be rendered before three years" (cuyo pronunciamiento no será antes de tres años) (ibid.). The Under-General Secretary did not elaborate on other types of complaints.

For background information on the situation of unions in Costa Rica, please see the following excerpt of an International Confederation of Free Trade Unions:

I. Freedom of Association and the Right to Collective Bargaining

Costa Rica has ratified both the ILO Core Conventions protecting trade union rights. Both ILO Convention No. 87, The Freedom of Association and Protection of the Right to Organise Convention, and ILO Convention No. 98, the Right to Organise and Collective Bargaining Convention, were ratified in 1960.

Although the Constitution and the Labour Code provide for freedom of association for all workers, and provide for protection from anti-union discrimination, in practice many workers are not able to exercise this right free of harassment. It has proven impossible for virtually all workers in the private sector to form and join free trade unions, most notably in the country's nine export processing zones (EPZ's) and on the banana plantations.

Workers in agricultural enterprises employing less than five people are not covered by the scope of the Labour Code. The Government passed a Decree in 1952 that this provision of the Labour Code was unconstitutional, but nearly fifty years later, this remains to be reflected in the Labour Code. The ILO has repeatedly asked the Government to rectify this situation and ensure that these workers enjoy their rights under the Labour Code, especially freedom of association.

Legislation also prohibits foreigners from holding trade union office, and although the Government has responded to repeated ILO criticism concerning this piece of law by submitting a draft bill to repeal it, this draft Bill has not made any progress through Parliament in nearly five years. The ILO CEACR has also criticised the Government for interference in the internal affairs of trade unions.

It has been common practice for private sector employers in Costa Rica to refuse to recognise a union, dismiss the union leaders and those workers who are members, and instead establish a solidarismo organisation, which offers workers access to credit and savings facilities, in exchange for renunciation of the union and promises of industrial peace. The ICFTU reported to the ILO that in many cases mass dismissals of unionised workers and union leaders occurred days after an application to register a trade union had been lodged with the Ministry of Labour, and that the Ministry was passing the names on to the employers, who were firing the workers and offering to establish a solidarismo organisation. The Government denied this, but the ILO Committee on Freedom of Association ruled that the involvement of these solidarismo organisations in trade union activities violated workers' freedom of association.

The ILO further criticised the Government in 1995 regarding solidarismo organisations and the legal advantages they held over trade unions. In February 2000, the Government responded by adopting legislation to give unions the legal right to administer workers' funds, and to give workers full freedom in choosing which organisation will carry this out on their behalf.

Amendments to the Labour Code were made in 1993 to improve protections of workers from acts of anti-union discrimination by employers, and to compel employers found guilty of such discrimination to reinstate workers who were fired. However, the changes have achieved very little, and have had no positive consequences in practice. Cases of discrimination have continued, and legislation is still interpreted in such a way as to effectively restrict workers' right to freedom of association.

The banana industry is a case in point of the continuing problems of anti-union discrimination that remain, even after legislative amendments made in 1993 and 1998. In April 1999, the leader of the SITRASUR banana workers' union, Adrian Herrera Arias, was fired, sent death threats warning him to quit the union, narrowly escaped being run over by a vehicle without identification plates, and was tied up and beaten in the street. This came after two years of the company refusing to recognise the union, and after the company had established a solidarismo organisation and, in violation of the Labour Code Amendment of 1993, signed an agreement with it immediately after the union had originally presented its bargaining claims.

At the same time, the Ministry of Labour was overseeing mass dismissals of banana workers and idespread use of short-term contract labour being paid less than the minimum wage in an attempt to deal with falling banana prices. These falling prices were in effect a pretext for the widespread dismissal of unionised workers, who were harassed and blacklisted, as were any workers even seen talking to a trade unionist. This, and the general situation on the banana plantations, is a clear example of international trade pressures directly resulting in the violation of fundamental human and trade union rights.

A public relations offensive in 1998 by the Government and employers to improve the image of the banana industry allowed a group of eminent Costa Ricans from universities the Church and the press to investigate the working conditions on plantations. Shortly after having spoken to some of these observers and described their living and working conditions, many workers faced intimidation and threats from unhappy management. The banana plantation owners also took advantage of the desperate situation of refugees fleeing from Hurricane Mitch to hire them as cheap and badly-treated labour.

At around the time in the late 1990's when the SITRAP union won the right to bargain collectively for workers on a Del Monte plantation, some Government officials threatened to take the union to court for treason for having exposed to the world the situation on Costa Rican banana plantations.

The Government submitted draft legislation to Parliament in 1998 to speed up procedures regarding unfair dismissal, because many cases had been neglected for three or more years, after which time many of the dismissed workers had either left the area or become otherwise unavailable for testimony. The legislation mandated two weeks for the completion of an unfair dismissal case, including appeal, and imposed fines on employers who do not comply with a reinstatement order.

Unresolved cases of unfair dismissal remain that have dragged on since before the introduction of the above-mentioned draft legislation. For example, in 1995, two hundred and sixty-five workers were sacked and a solidarismo organisation set up at a fertiliser plant. Riot police were sent in to quell a peaceful demonstration. The ILO then recommended that the workers all be reinstated, which the Labour Ministry subsequently ordered the company to do. The company refused, and no further action has been taken. The Government has acknowledged to the ILO that there has been a lack of enforcement of sentences handed down by the courts for cases of anti-union discrimination, but it has refused to acknowledge this as the fault of the administrative authorities.

The situation in the Export Processing Zones is even worse as concerns anti-union discrimination. In 1996 there was a ratio of one labour inspector to thirty thousand workers in the EPZ's. While this ratio is now one inspector to nine thousand EPZ workers, this is still insufficient to tackle the number of unfair dismissals for involvement with a union. And nearly all unfair dismissal cases in the EPZ's are decided in favour of the employer. Those few cases decided in favour of the worker are usually overturned by the National Labour Inspector. There have been reports that many companies with EPZ status were forcing workers to work at home, where not only do they receive many fewer benefits, such as holidays, but they are not covered by the Labour Code.

While the right to collective bargaining is legally protected for private sector workers, this right is not effectively enjoyed in practice. The reason attributed by the Inter-Federal Committee of Costa Rica (CICC) for this is that there is such a high degree of persecution on the part of employers against those workers who show interest in joining or forming trade unions, that there is simply not the extent of permitted unionisation in the private sector to allow for any real collective bargaining. Similarly concerning the right to strike, the legal provisions allowing for strikes in the private sector are such that there have only been two legal strikes in Costa Rica in the last fifty years. When strikes do occur, instead of compelling the employer to bargain with the union, the Government has chosen to break the strike, as in the case of the fertiliser company mentioned above.

Public sector workers do not enjoy the right to engage in collective bargaining, and many public sector workers do not enjoy the right to strike. While the Constitution mandates that collective agreements signed with legally recognised trade unions have the force of law, and that international treaties take precedence over domestic law, the Supreme Court has ruled it unconstitutional for public employees to bargain collectively. After the Supreme Court rescinded the effects of a collective agreement between the state oil company and the SITRAPEQUIA union, the CTRN again brought this violation of Convention No. 98 to the attention of the ILO. The ILO has repeatedly advised the Government to bring its legislation into line with ILO Convention No. 98.

The Government has previously responded to the ILO's repeated criticism of the situation concerning public sector workers, and reported in the late 1990's that draft legislation providing for extended collective bargaining rights in the public sector had been submitted to Parliament. The ILO had to criticise the Government again after there had been no progress with this draft legislation after three years in Parliament. The following year, the ILO CEACR had to use strong language to show its displeasure when it informed the Government that it "regrets to note that, despite this being a fundamental right, there have been no significant developments for many years with regard to the right of public servants who are not engaged in the administration of the State to bargain collectively". There is a strong likelihood that this same issue will be considered again by the ILO CEACR this year.

In the late 1990's the public sector in Costa Rica consisted of about 65% of all manufacturing and services, and while this figure is dropping slightly as privatisations continue, this constitutes a very large proportion of the workforce whose basic rights are not respected.

Many workers in the public sector do not enjoy the effective right to strike, nor do workers in the agricultural, forestry, rail, maritime and transport sectors. The Government, in 1995 and then in 1997, again in response to trade union and ILO criticism, introduced bills intended to repeal the offending legislation. One bill was concerned to limit those services in which strikes are prohibited to those services which are essential in the strict sense of the term (those the interruption of which could endanger the life, safety or health of the whole or part of the population). The other was to remove the ban on strikes by workers in air, rail and maritime transport sectors. But as of early 2001, the two bills have still not passed through Parliament.

In 1998 the Supreme Court found unconstitutional the ban on strikes by agricultural, stock-raising and forestry workers, and ruled that public sector workers have the right to strike. This ruling was reviewed by the Constitutional Chamber of the Supreme Court one month later, and it was then ruled that judges must determine first that "services necessary to the well-being of the public" will not be jeopardised before allowing a public sector strike to proceed. To date, this no criteria has been adopted for making such determinations, which means that strike procedures continue to be paralysed for lack of legal guidance.

While legislation protects freedom of association and collective bargaining, these rights are very difficult to exercise in practice. Public sector workers have no right to bargain collectively, and because of violent repression of union activists, private sector workers can not exercise their legal right to join a union or to bargain collectively. The banana plantations and the EPZ's are particularly notable in their repression of union activities. . Freedom of Association and the Right to Collective Bargaining.

Costa Rica has ratified both the ILO Core Conventions protecting trade union rights. Both ILO Convention No. 87, The Freedom of Association and Protection of the Right to Organise Convention, and ILO Convention No. 98, the Right to Organise and Collective Bargaining Convention, were ratified in 1960.

Although the Constitution and the Labour Code provide for freedom of association for all workers, and provide for protection from anti-union discrimination, in practice many workers are not able to exercise this right free of harassment. It has proven impossible for virtually all workers in the private sector to form and join free trade unions, most notably in the country's nine export processing zones (EPZ's) and on the banana plantations.

Workers in agricultural enterprises employing less than five people are not covered by the scope of the Labour Code. The Government passed a Decree in 1952 that this provision of the Labour Code was unconstitutional, but nearly fifty years later, this remains to be reflected in the Labour Code. The ILO has repeatedly asked the Government to rectify this situation and ensure that these workers enjoy their rights under the Labour Code, especially freedom of association.

Legislation also prohibits foreigners from holding trade union office, and although the Government has responded to repeated ILO criticism concerning this piece of law by submitting a draft bill to repeal it, this draft Bill has not made any progress through Parliament in nearly five years. The ILO CEACR has also criticised the Government for interference in the internal affairs of trade unions.

It has been common practice for private sector employers in Costa Rica to refuse to recognise a union, dismiss the union leaders and those workers who are members, and instead establish a solidarismo organisation, which offers workers access to credit and savings facilities, in exchange for renunciation of the union and promises of industrial peace. The ICFTU reported to the ILO that in many cases mass dismissals of unionised workers and union leaders occurred days after an application to register a trade union had been lodged with the Ministry of Labour, and that the Ministry was passing the names on to the employers, who were firing the workers and offering to establish a solidarismo organisation. The Government denied this, but the ILO Committee on Freedom of Association ruled that the involvement of these solidarismo organisations in trade union activities violated workers' freedom of association.

The ILO further criticised the Government in 1995 regarding solidarismo organisations and the legal advantages they held over trade unions. In February 2000, the Government responded by adopting legislation to give unions the legal right to administer workers' funds, and to give workers full freedom in choosing which organisation will carry this out on their behalf.

Amendments to the Labour Code were made in 1993 to improve protections of workers from acts of anti-union discrimination by employers, and to compel employers found guilty of such discrimination to reinstate workers who were fired. However, the changes have achieved very little, and have had no positive consequences in practice. Cases of discrimination have continued, and legislation is still interpreted in such a way as to effectively restrict workers' right to freedom of association.

The banana industry is a case in point of the continuing problems of anti-union discrimination that remain, even after legislative amendments made in 1993 and 1998. In April 1999, the leader of the SITRASUR banana workers' union, Adrian Herrera Arias, was fired, sent death threats warning him to quit the union, narrowly escaped being run over by a vehicle without identification plates, and was tied up and beaten in the street. This came after two years of the company refusing to recognise the union, and after the company had established a solidarismo organisation and, in violation of the Labour Code Amendment of 1993, signed an agreement with it immediately after the union had originally presented its bargaining claims.

At the same time, the Ministry of Labour was overseeing mass dismissals of banana workers and widespread use of short-term contract labour being paid less than the minimum wage in an attempt to deal with falling banana prices. These falling prices were in effect a pretext for the widespread dismissal of unionised workers, who were harassed and blacklisted, as were any workers even seen talking to a trade unionist. This, and the general situation on the banana plantations, is a clear example of international trade pressures directly resulting in the violation of fundamental human and trade union rights.

A public relations offensive in 1998 by the Government and employers to improve the image of the banana industry allowed a group of eminent Costa Ricans from universities the Church and the press to investigate the working conditions on plantations. Shortly after having spoken to some of these observers and described their living and working conditions, many workers faced intimidation and threats from unhappy management. The banana plantation owners also took advantage of the desperate situation of refugees fleeing from Hurricane Mitch to hire them as cheap and badly-treated labour.

At around the time in the late 1990's when the SITRAP union won the right to bargain collectively for workers on a Del Monte plantation, some Government officials threatened to take the union to court for treason for having exposed to the world the situation on Costa Rican banana plantations.

The Government submitted draft legislation to Parliament in 1998 to speed up procedures regarding unfair dismissal, because many cases had been neglected for three or more years, after which time many of the dismissed workers had either left the area or become otherwise unavailable for testimony.

The legislation mandated two weeks for the completion of an unfair dismissal case, including appeal, and imposed fines on employers who do not comply with a reinstatement order.

Unresolved cases of unfair dismissal remain that have dragged on since before the introduction of the above-mentioned draft legislation. For example, in 1995, two hundred and sixty-five workers were sacked and a solidarismo organisation set up at a fertiliser plant. Riot police were sent in to quell a peaceful demonstration. The ILO then recommended that the workers all be reinstated, which the Labour Ministry subsequently ordered the company to do. The company refused, and no further action has been taken. The Government has acknowledged to the ILO that there has been a lack of enforcement of sentences handed down by the courts for cases of anti-union discrimination, but it has refused to acknowledge this as the fault of the administrative authorities.

The situation in the Export Processing Zones is even worse as concerns anti-union discrimination. In 1996 there was a ratio of one labour inspector to thirty thousand workers in the EPZ's. While this ratio is now one inspector to nine thousand EPZ workers, this is still insufficient to tackle the number of unfair dismissals for involvement with a union. And nearly all unfair dismissal cases in the EPZ's are decided in favour of the employer. Those few cases decided in favour of the worker are usually overturned by the National Labour Inspector. There have been reports that many companies with EPZ status were forcing workers to work at home, where not only do they receive many fewer benefits, such as holidays, but they are not covered by the Labour Code.

While the right to collective bargaining is legally protected for private sector workers, this right is not effectively enjoyed in practice. The reason attributed by the Inter-Federal Committee of Costa Rica (CICC) for this is that there is such a high degree of persecution on the part of employers against those workers who show interest in joining or forming trade unions, that there is simply not the extent of permitted unionisation in the private sector to allow for any real collective bargaining. Similarly concerning the right to strike, the legal provisions allowing for strikes in the private sector are such that there have only been two legal strikes in Costa Rica in the last fifty years. When strikes do occur, instead of compelling the employer to bargain with the union, the Government has chosen to break the strike, as in the case of the fertiliser company mentioned above.

Public sector workers do not enjoy the right to engage in collective bargaining, and many public sector workers do not enjoy the right to strike. While the Constitution mandates that collective agreements signed with legally recognised trade unions have the force of law, and that international treaties take precedence over domestic law, the Supreme Court has ruled it unconstitutional for public employees to bargain collectively. After the Supreme Court rescinded the effects of a collective agreement between the state oil company and the SITRAPEQUIA union, the CTRN again brought this violation of Convention No. 98 to the attention of the ILO. The ILO has repeatedly advised the Government to bring its legislation into line with ILO Convention No. 98.

The Government has previously responded to the ILO's repeated criticism of the situation concerning public sector workers, and reported in the late 1990's that draft legislation providing for extended collective bargaining rights in the public sector had been submitted to Parliament. The ILO had to criticise the Government again after there had been no progress with this draft legislation after three years in Parliament. The following year, the ILO CEACR had to use strong language to show its displeasure when it informed the Government that it "regrets to note that, despite this being a fundamental right, there have been no significant developments for many years with regard to the right of public servants who are not engaged in the administration of the State to bargain collectively". There is a strong likelihood that this same issue will be considered again by the ILO CEACR this year.

In the late 1990's the public sector in Costa Rica consisted of about 65% of all manufacturing and services, and while this figure is dropping slightly as privatisations continue, this constitutes a very large proportion of the workforce whose basic rights are not respected.

Many workers in the public sector do not enjoy the effective right to strike, nor do workers in the agricultural, forestry, rail, maritime and transport sectors. The Government, in 1995 and then in 1997, again in response to trade union and ILO criticism, introduced bills intended to repeal the offending legislation. One bill was concerned to limit those services in which strikes are prohibited to those services which are essential in the strict sense of the term (those the interruption of which could endanger the life, safety or health of the whole or part of the population). The other was to remove the ban on strikes by workers in air, rail and maritime transport sectors. But as of early 2001, the two bills have still not passed through Parliament.

In 1998 the Supreme Court found unconstitutional the ban on strikes by agricultural, stock-raising and forestry workers, and ruled that public sector workers have the right to strike. This ruling was reviewed by the Constitutional Chamber of the Supreme Court one month later, and it was then ruled that judges must determine first that "services necessary to the well-being of the public" will not be jeopardised before allowing a public sector strike to proceed. To date, this no criteria has been adopted for making such determinations, which means that strike procedures continue to be paralysed for lack of legal guidance.

While legislation protects freedom of association and collective bargaining, these rights are very difficult to exercise in practice. Public sector workers have no right to bargain collectively, and because of violent repression of union activists, private sector workers can not exercise their legal right to join a union or to bargain collectively. The banana plantations and the EPZ's are particularly notable in their repression of union activities (ICFTU 9-11 May 2001).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

References

Central del Movimiento de Trabajadores Costarricenses (Central of the Costa Rican Workers Movement, CMTC), San José. 6 February 2002. Correspondence from Under-General Secretary.

International Confederation of Free Trade Unions (ICFTU), Brussels. 9-11 May 2001. Report for the WTO General Council Review of the Trade Policy of Costa Rica. <http://www.icftu.org> [Accessed 8 Feb. 2002]