Labour Process Reform in Costa Rica

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Labour Process Reform in Costa Rica
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Current Situation

• Important judicial delay
• Procedure used ? Obsolete and is cause of the
  judicial delay
• Procedure completely in writing, with excessive
  vertical resources and many instances
• Excessive number of lawsuits empower the judge to
  disregard evidence in order to make a better
  ruling.
• Process lacking the principles of immediacy,
  concentration and speediness.

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Essential Aspects of the Project

• Participatory process of judicial and
  non-judicial sectors original project drawn up
  by the Supreme Court of Justice, but was
  circulated and put into discussion among involved
  and interested sectors.
• Procedural Reform proposed within the Labour
  Code, since labour process has its own
  characteristics that distances it from the common
  process.
• Project consists of solution to individual and
  collective conflicts and stresses the importance
  of extrajudicial conciliation.

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Project Background

• Labour Process Reform Project drawn up by
  commission in the Supreme Court of Justice.
• Circulation of the final draft and discussion
  with diverse sectors related to the
  administration of labour law.
• Strategic alliance among the MLSS, ILO,
  Government of Canada to develop activities to
  promote the proposal.
• Project discussed in the Superior Labour Council,
  a tripartite body assigned to the MLSS.
• Presented to the Legislative Assembly in
  September 2005.

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1. Scope of Application of the Labour Process
Substantive Project Content

• Current Situation
• Situation unclear whether conflicts in the public
  sector are treated in an administrative
  contentious channel or in a specialised labour
  jurisdiction ? Reflected in criteria of the
  tribunals

• Proposed Situation
• Clarifies that within the scope of the
  application of the Code be included all claims
  related to public employment for collection of
  labour benefits and for the challenge of actions
  of all public legal institutions or bodies
  relative to this employment.

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2. Exhaustion of Administrative Channels
Substantive Project Content

• Current Situation
• Claims against the State or its institutions must
  first exhaust all administrative channels.

• Proposed Situation
• Exhausting all instances is proposed as one
  option. The parties may renounce the mechanisms
  of administrative refutation and appeal directly
  to the jurisdiction.

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3. Obligatory Representation by an Attorney
Substantive Project Content

• Current Situation
• Interested parties may litigate in the tribunals
  without representation of an attorney. As a
  result, workers often fail to receive adequate
  protection of their rights.

• Proposed Situation
• Creation of social assistance attorneys to
  represent workers with scarce resources at no
  cost.

4. Regime on Proof

• Current Situation
• Traditional system provides that whomever files
  an action or opposes an exception must provide
  proof to sustain it.

Proposed Situation Combination of the
traditional system and one that redistributes the
burden of proof.
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5. Alternative Conflict Solution
Substantive Project Content

• Current Situation
• Alternative Conflict Solution system recently
  functioning. The MLSS has the Centro RAC since
  2000.

• Proposed Situation
• Alternative Conflict Solution system
  strengthened. Its benefits would include the
  conciliatory processes of the Labour
  Administration.

6. Reinstatement as a Precautionary Measure

• Current Situation
• Reinstatement exists in processes against the
  State or its institutions.
• Can only be mandated by legal judgement.

• Proposed Situation
• Reinstatement as a general precautionary measure.

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7. Special Processes
Substantive Project Content

• Current Situation
• Special processes through the application of the
  ordinary process.

• Proposed Situation
• Creation of special highly summary processes for
• Protection of special jurisdictions and
  protection of due process.
• Distribution of social benefits of deceased
  workers
• Authorisations when the law requires that a
  jurisdictional organ provides them.
• Process to reinstate workers who have suffered
  accidents on the job.
• Process of qualifying strikes.

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8. Legal Right to Interest Payments and
Indexation
Substantive Project Content

• Current Situation
• Impose interest payments only when expressly
  demanded.

• Proposed Situation
• Establishment of legal right to interest payments
  as a result of the ruling.
• Indexation also be treated as a consequence of
  the ruling, and attempts should be made to
  calculate sums owed at their present value.

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9. Collective Processes
Substantive Project Content

• Proposed Situation
• Simplified collective processes, time periods are
  shortened and possibilities of presenting
  challenges on both sides are reduced.
• The possibility is created to hear cases in
  extra-judicial arbitration centres.

• Current Situation
• Complicated collective processes.

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10. Economic and Social Conflicts in the Public
Sector
Substantive Project Content

• Current Situation
• Ineffective regulation of the solution of strikes
  and economic and social conflicts in the public
  sector.

• Proposed Situation
• Precise statement that public servants cannot
  benefit.
• Clear establishment of the matters on which a
  negotiation may be undertaken.
• Barring of solutions that violate the principle
  of law in all dimensions under threat of
  nullification.
• Negotiation procedure is indicated.
• Establishment of rules for solutions with
  reconciliation and conditions for the validity
  of settlements and arbitration.

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Mechanisms to Speed Up Labour Procedures

• Goal of the Reform
• Achieve a process that is simpler and more
  expeditious without demanding unnecessary forms.
• Key elements to achieving it
• That it be an oral, speedy, immediate, and free
  process
• That instances be limited
• Limitation and rationalisation of the means by
  which rulings can be challenged
• Establishment of new, highly summary processes

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Benefits of the Reform for the Ministry of Labour

• Precise and conceptual regulation of direct
  settlements.
• Gives entitlement to the Permanent Workers
  Committees through their registration in the
  MLSS.
• Lowers the percentage of affiliated workers
  needed for the negotiation of collective
  agreements.
• Lowers the percentage of workers needed to allow
  the right to strike from 60 to 40.
• Gives Conciliatory Settlements in the
  administrative headquarters the character of a
  legal judgement.
• Consolidation of the time periods for
  prescription of process.