On 6 February 2020, the law N.9808 “to increase legal certainty on strike action and its proceedings” entered into force in Costa Rica.
The law marks the distinction between legal and illegal strikes. “Legal strike is a right consisting in a concerted and peaceful suspension of work, in a company, institution, establishment or workplace, agreed and executed by a plurality of minimum three employees, representing more than half of the votes cast pursuant to article 381, by the employees involved in a collective labor conflict”.
Legal strikes are the ones:
- 1. Aiming at defending and promoting the employees’ economic and social interests;
- 2. Aiming at defending the employees’ rights in collective legal disputes (according to Article 386 of the Labour Code);
- 3. Organised as a protest against public policies, when those policies affect directly the workers’ social and economic interests, but only for once and for a maximum of 48 hours.
All other strike actions – political strikes, strikes with no direct connection with employment relations or delinked to the employer’s conduct or atypical strikes, are deemed illegal (Article 371). This is not excluding the right to protest peacefully. Article 371 states that “The aforementioned provisions will not affect the right to protest for self-employed workers or of those people without an employment relationship”.
Moreover, strikes are illegal when they “involve blockades of public roads, prevent access to public facilities or services, imply the sabotage of public property, the perpetration of conduct that involves a criminal offense or that precludes the right to work from workers who are not on strike”.
Other important novelties introduced by the law relate to:
- the definition of public essential services, as the ones “whose suspension, discontinuity or paralysis can cause significant damage to the rights to life, health and public safety” and for which strike action is forbidden (Article 376). They include:
- health services;
- air traffic controllers and immigration control services at airports, ports and border posts;
- rail, maritime transport and public transport services;
- firefighters and emergency services;
- The services necessary to guarantee the supply of drinking water, sanitary sewerage and wastewater treatment;
- The services necessary to ensure the supply of electrical energy to consumers, and those necessary for the provision of telecommunications services;
- the essential services for the import, transport, distribution and supply of fuel;
- School canteen service, as well as protection, care and / or shelter services for children and adolescents and the elderly, people with disabilities or in a state of vulnerability.
- The definition of services of “transcendental importance” as those that, “due to their strategic nature for the socioeconomic development of the country, their paralysis or suspension imply a sensible damage to the living conditions of all or part of the population” and where a minimum service must be guaranteed. Such services are, for instance, the collection and treatment of waste and residues, banking services, justice administration services, custom services.
- The declaration of the education sector as "of a strategic nature for the nation", meaning that each educational centre must remain open and with the necessary personnel during the duration of the strike.
- Payment of wages during strikes: the law clarified that “the strike suspends employment contracts for workers who are participating in the movement; consequently, said workers will not be obliged to provide their services or the employer to pay the remuneration”. However, if the Court in its final sentence determines that the strike had been caused by the employer’s conduct, then workers on strike are entitled to their salary during the industrial action.
- Procedure to declare a strike legal: the law foresees the conditions under which the judge must declare the legality of the strike action within 24 hours. It also details the procedure for compulsory conciliation and the cases for arbitration. (Articles 661, 664, 666, 667, 668, 707)
- Duration of strike: for public services, after a suspension of work of 8 days and no conciliation reached, the employer may request the judge to suspend the strike when it is harming the population. For education services, strike action cannot continue after 21 days.
The employers’ sector in Costa Rica, the Unión Costarricense de Cámaras y Asociaciones del Sector Empresarial Privado – UCCAEP, considered this reform as an advancement in legal certainty on strike action. Through this reform, strikes of indefinite duration, such as the one in 2018 against the fiscal reform that lasted 93 days and importantly affected the national economy would not be repeated.
Álvaro Sáenz Saborío, UCCAEP President, prior to the adoption of the law commented that “the Labor Code supports the right to strike, and when strike action is legal, the continuity of business and production must be ensured, so that the daily life of the Costa Rican who gets up early to work, go to medical appointments, or circulate on the streets, is not affected”. After the law was passed, Mr Sáenz expressed UCCAEP’s satisfaction with the law and emphasised that “we celebrate the approval of the reform. This regulation respects the right to strike; it ensures the continuity of production and business of small, medium and large enterprises. In addition, it provides security to investors”.