Supreme Court of Justice, Constitutional Chamber, 8 October 1993, Decision No. 5000-93
Political Constitution of the Republic of Costa Rica
Article 7, paragraph 1
Public treaties, international agreements and concordats duly approved by the Legislative Assembly shall have a higher authority than the laws upon their enactment or from the day that they designate.
Dismissal , Freedom of association
Direct resolution of a dispute on the basis of international law , Use of international law as a guide for interpreting domestic law
Freedom of association/ Dismissal/ Recourse for violation of fundamental freedoms and rights — Appeal on the ground of unconstitutionality (”Recurso de amparo”)/ Protective status of union representatives/ Reinstatement in employment/ Direct resolution of a dispute on the basis of international law/Use of international law as a guide for intepreting domestic law
An appeal on the grounds of unconstitutionality (“recurso de amparo”) was entered before the Constitutional Chamber of the Supreme Court in favour of three members of the permanent committee of workers of a company from which they had been dismissed at the time that they were taking steps to renegotiate the collective agreement then in force. The claimants claimed unjustified dismissal, which hindered the exercise of freedom of association and the right to collective bargaining of all workers of the company in question. As for the defendant, the company based its defence on the explanation that the dismissals were not based on the workers’ union activities but, in fact, were justified by economic reasons and that termination of the contracts of employment was accompanied by payment of the compensation required by law.
The problem arose from the fact that the legislation of Costa Rica did not have at that time specific provisions aimed at protecting workers’ representatives, a situation leading to the possibility of dismissing the representatives without reason just like any other worker through simple payment of the compensation provided for by law.
After having pointed out that the Constitution of Costa Rica recognizes freedom of association and the right to organize, the Court studied the contents of international instruments that protect the exercise of freedom of association, focusing specifically on Article 1 of ILO Convention No. 135,3 Article 1 of ILO Convention No. 984 and Article 8(2) of ILO Convention No. 87.5
The Constitutional Chamber considered that those instruments created a need to establish special protection for workers’ representatives against unjustified dismissal. In the case of these workers, termination of the contract of employment was not valid unless it could be proven that the representative had violated its specific and general obligations.6
Using Article 7 of the Constitution of Costa Rica, which attributes primacy to ratified international treaties over domestic laws, the Court stressed that the international conventions referred to should be applied. The Court then determined that the articles of a general nature of the Constitution7 and the Labour Code of Costa Rica,8 which recognized the freedom of association and prohibited an employer from undertaking the least action aimed at inciting workers to withdraw from a union, were in agreement with the sense of the international instruments.
Primarily on the basis of ILO Conventions Nos. 87, 98 and 135, the Constitutional Chamber of the Supreme Court of Costa Rica annulled the dismissal of the three workers’ representatives and ordered their reinstatement in their positions and in their functions of representatives. The Court decided also that the same legal argument was applicable to the dismissal of ordinary workers whenever the contract had been terminated because of their membership, explicit or not, in an association or trade union.
1 ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87); ILO Convention on the Right to Organise and Collective Bargaining, 1949 (No. 98); ILO Convention on Workers’ Representatives, 1971 (No. 135); International Covenant on Civil and Political Rights, 1966; American Convention on Human Rights (“Pact of San José, Costa Rica”), 1969.
3 Article 1 of Convention No. 135: “Workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.”
4 Article 1 of Convention No. 98: “1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. 2. Such protection shall apply more particularly in respect of acts calculated to (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership; (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.”