2009 Annual Survey of violations of trade union rights - Costa Rica

Population: 4,500,000
Capital: San José
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182

The barrier to the formation of unions in the private sector is still in place. Trade unionists were arrested during the year and the fruit multinationals continued their anti-union practices.

Trade union rights in law

Freedom of association: 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 and the legal process 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 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.

Nevertheless, 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.

Trade union rights in practice and violations in 2008

Background: The year was dominated by an analysis of and concerns about the impact of the international crisis. The increase in the cost of living has affected lower income workers and Costa Ricans living in poverty. The social tensions that arose over the referendum on the ratification of the Free Trade Agreement with the United States continued, and the public service unions faced threats. In general, the trade union rights situation in the country continued to deteriorate.

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 owing to a combination of anti-union strategies, government indifference and the promotion of "solidarismo" associations (employer-backed associations that act as a barrier to the formation of trade unions within an enterprise), together with a continual media campaign. There are constant complaints to the Ministry of Labour regarding anti-union harassment. Unions in the public sector are meanwhile being subjected to a continuous de-recognition campaign by the government, the chamber of commerce and the media.

As a result, the Ministry of Labour and Social Security (MTSS) has no mechanism for promoting freedom of association. The MTSS is, on the contrary, promoting 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.

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.

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.

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".

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.

Illegal arrest of construction union leader: On 30 April, Ronald Fuentes, leader of the migrant workers' union affiliated to the National Construction and Allied Workers' Union (SUNTRACS), was arrested in San José. Costa Rican trade union organisations reported that the arrest took place while he was taking steps to secure his residency in the country and was awaiting the decision of the authorities on his status.

Concern over attempts to reform the Constitution: Costa Rican trade union organisations have denounced the government's proposal to introduce a constitutional reform that would remove the term trade union from the Constitution and replace it with solidarismo, effectively removing the recognition of trade union rights, and going against the recommendations regularly made by the ILO.

Pineapple growers continue harassment of trade unionists: Local supervisors and managers working for sub-contractors supplying fruit to the Dole company continue their anti-union attitudes and activities, using threats and intimidation to prevent workers from joining and to persuade them to leave the unions.

This is still happening despite the framework agreement signed by Dole and the Coordinating Organisation of Banana Workers Trade Unions of Costa Rica (COSIBA CR) in 2007, which was supposed to have created a formal mechanism for regular meetings between both sides. Dole took steps to facilitate discussions between the unions and some of the banana and pineapple suppliers in Costa Rica. There has been no real progress towards the free exercise of trade union activity at either the national or regional level, however.

Continued anti-union intervention by "solidarismo" associations: Representatives of the Juan XXIII Labour School have continued their anti-union intervention, with the collaboration of the local management of the banana and pineapple plantations, even though this intervention by third parties in labour relations is a violation of the framework agreement between Dole and COSIBA-CR, and the Costa Rican law that prohibits the involvement of "solidarismo" associations in any anti-union activity. Dole took a step in the right direction by facilitating meetings between COSIBA-CR and the suppliers, Collin Street Bakery and Grupo Acon S.A., but it was not enough, given that blatant violations of trade union rights persist despite several years of continual complaints.

Trade union immunity of agricultural workers violated: COSIBA-CR reported the dismissal of four workers affiliated to the Heredia Industrial Trade Union of Agricultural Workers, Cattle Ranchers and Other Workers (SITAGAH) on the Zurquí ranch, and of three other workers affiliated to the Plantation Workers' Union SITRAP. Other workers were relocated, and new workers were hired to replace those dismissed. COSIBA-CR protested to Dole management about the imminent dismissals, which the workers were only informed of verbally, contrary to legal requirements. Anti-union practices have prevented the reaching of a consensus on the exercise of basic trade union rights, which has contributed to workers' distrust of the company.

Government against freedom of expression and information: After the National Union of Social Security Fund Employees (UNDECA) presented a complaint against the government of Oscar Arias and the Costa Rican Social Security Fund for violations of the freedom of information and expression, the ILO accepted the complaint and found in the union's favour.

The complaint concerned a directive issued by the Arias administration which prohibited propaganda campaigns on the Free Trade Agreement (FTA) within the premises of the Social Security Fund, at the time of the referendum. The measure only applied to FTA opponents, however, as the government used every possible opportunity to express its support for the treaty and promote its approval.

When UNDECA lodged its complaint with the ILO, the government directive was withdrawn, but by then it had already prevented the dissemination of information on the negative effects of the FTA.