Definitive Report - Report No 218, November 1982

Case No 1047 (Nicaragua) - Complaint date: 06-JUN-81 - Closed

72. The Committee considered case No, 1047 at its March 1982 Session and presented an interim report to the Governing Body. The Government subsequently sent its observations in communications of 23 July and 16 September 1982. The complaint figuring in Case No. 1123 is contained in a communication from the World Confederation of Labour (WCL) dated 23 March 1981. The Government replied in communications of 30 April, 22 May, 23 July and 30 September 1982.

1. 72. The Committee considered case No, 1047 at its March 1982 Session and presented an interim report to the Governing Body. The Government subsequently sent its observations in communications of 23 July and 16 September 1982. The complaint figuring in Case No. 1123 is contained in a communication from the World Confederation of Labour (WCL) dated 23 March 1981. The Government replied in communications of 30 April, 22 May, 23 July and 30 September 1982.
2. 73. Nicaragua has ratified the Freedom of Association and Protection of the Right to organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of Case No. 1047

1. 74. The allegations which remain outstanding in Case No. 1047 relate to the dismissal without justifiable cause of 95 workers of the Javier Guerra (Mandaime) sugar mill in June 1981, to the dismissal of 130 members of the Urban Transport Workers' Union and to the detention of the national officials of the Central of Workers of Nicaragua (CTN), Ofilio Garcia and Donald Castillo, whose lives have furthermore, allegedly been threatened. As the Government had failed to reply to these allegations, the Committee requested it to send its observations on the matter.

B. The WCL's allegations

1. 75. The WCL alleges in its communication of 23 March 1982 that Decrees Nos. 530 of 1980, 812 of 1981 and 911 of 1981, promulgated by the Government, constitute a serious infringement of the right to collective bargaining and the right to strike and openly contravene ILO Conventions Nos. 87 and 98. The WCL adds that the Government intends to impose a new law on public information media limiting the exercise of trade union rights and freedom of expression by trade union organisations.
2. 76. Lastly, the WCL alleges that the following trade union leaders of the CTN have been arbitrarily arrested: Rito Rivas, Daniel Garcia, Modesto López, Carlos Pérez, Máximo Valle, Domingo Pérez, Heriberto Torres, Gabino Toruno and Eugenio Membreno.

C. The Government's reply

1. 77. The Government states that only 39 workers were dismissed at the Javier Guerra sugar mill and that they presented a claim against the mill; the case was settled on appeal by the relevant court decision which the Government supplies. According to this decision, 11 workers have accepted payment of the indemnities provided for by law on dismissal and, as a result, the question of reinstating them does not arise. Thirteen others were to be reinstated in their jobs and 15 others, (Lorenzo Ruiz Narvaez, Mario Narvaez Fonseca, Ricardo Dumas Guadamuz, Domingo Calderon Zuniga, Ignacio Carballo Navarro, Enrique Barberena Pena, Candido Aburto Tercero, José Vicente Trana Chavez, Carlos Talavera Fletes, Manuel Antonio Guadamuz Lezama, Orlando José Carballo Bonilla, Gonzalo Morales Chavez, Calixto Alberto Estrada Reyes, Ramona Gonzalez Salas and Yadira Ruiz de Sequeira) were to be dismissed and paid indemnities. The judicial decision in question dismisses the action taken by these 15 workers for reinstatement since, although no just cause for dismissal was shown, the workers in question, for their part, have not proved that the action so taken was repressive towards the trade union.
2. 78. The Government adds that the dismissal of the urban transport workers was due to problems completely unrelated to the trade union sphere. According to the Government, when it was discovered that many drivers were not handing over all the proceeds of the day's fares, it was decided to institute another system of ticket sales which would allow better control. Some of the drivers, the Government continues, opposed the measure and even damaged some of the vehicles. After discussions had been started with the union and its officers understood that the measure taken was correct, the dismissed workers were reinstated except those who, considering themselves adversely affected by the measure, preferred not to go on working.
3. 79. In addition, the Government states that Decree No. 530 of 24 September 1980, under which "the negotiation and adoption of a collective agreement are necessarily subject to the approval of the Ministry of Labour, in accordance with the procedures established by the latter", in no way restricts the right to free collective bargaining. According to the Government, the abovementioned rule is not imposed, but is applied by means of continual dialogue between the parties and the representative of the labour authority until a consensus is reached. If none is reached, the parties are free to enter into procedures established by the law before arbitration tribunals. The Government adds that the use of the tripartite method has been so effective that to date there has been only one case where the parties have gone to an arbitration tribunal. As regards Decrees Nos. 812 (Economic and Social Emergency Act) and 911 (Act Suspending the Provisions on Striking and Work Stoppage and Procedures for Settling Economic and Social Disputes), the Government states that they have been repealed by Decree No. 996 (National Emergency Act of 15 March 1982). As regards the Act on public information media, the Government states that the idea of a new law did not come from the Government, but that the Bills were submitted by the Patriotic Front of the Revolution (consisting of parties which support the Government) and the Democratic Coordinator (consisting of parties of the opposition), respectively. However, discussion of both Bills has now been interrupted.
4. 80. As regards the allegations concerning detentions, the Government states that Domingo Pérez Rivera, Daniel Garcia Cruz and Carlos Pérez were released on 12 and 22 August 1980 and 7 March 1982 respectively, that Ofilio Garcia and Donald Castillo have been released and that Modesto López, Máximo Valle, Heriberto Torres, Gabino Toruno and Rito Rivas do not appear on the list of detainees. The Government also points out that Eugenio Membreno, detained on 12 December 1980, is serving a four-year prison sentence for inflicting physical injury on another person.

D. The Committee's conclusions

1. 81. The allegations contained in the present complaint concern the dismissal of trade unionists, the conformity of various legislative texts or Bills with the Conventions on freedom of association and the arbitrary detention of trade union leaders.
2. 82. The Committee notes that, according to the Government, only 39 workers at the Javier Guerra sugar mill were dismissed, and that the case was settled by a decision of the appeal court. The decision of the appeal court has been sent to the Committee. From an examination of the decision in question, the Committee observes that 11 workers accepted legal indemnities on their dismissal and that the question of their reinstatement does not therefore arise. The Court has also ordered the reinstatement of 13 workers. However, as regards the 15 other workers, the decision dismisses the action taken by them for reinstatement since, although no just cause for dismissal was shown, these workers, for their part, have not proved that they were, as they alleged, the object of repressive, anti-union action. In this connection the Committee would recall that, in previous cases, a worker may find it difficult or even impossible to furnish proof that he has been the victim of an act of anti-union discrimination, Since, therefore, the management of Javier Guerra have not been able to show just cause for the dismissal of these 15 workers, the Committee requests the Government to take measures towards their reinstatement.
3. 83. The Committee also takes note of the Government's statements regarding the allegation of 130 members of the Urban Transport Workers' Union. The Committee notes in particular that after discussions with the Union's officers, the dismissed workers were reinstated except for those who preferred not to go on working because of the introduction of the new system of ticket sales. Consequently, the Committee considers that this allegation does not call for further examination.
4. 84. As regards Decree No. 530 of 1980, which stipulates that "the negotiation and adoption of a collective agreement are necessarily subject to the approval of the Ministry of Labour", the Committee observes that the question whether the said Decree conforms to Convention No. 98 was considered by the Committee when it examined Case No. 1007 at its May 1981 session. Although it notes the Government's statements on the matter, the Committee must refer to its conclusions on that occasion, and draw the Government's attention in particular to the fact that the requirement of ministerial approval before a collective agreement can become valid is not in conformity with the principle of voluntary collective bargaining, established by Convention No. 98.
5. 85. The Committee also notes that Decrees Nos. 812 and 911, to which the complainant also objected, have been repealed by Decree No. 996 (National Emergency Act of 15 March 1982). In this respect, the Committee would refer to the conclusions it has reached in Case No. 1133 (examined in the present report, see paragraphs 106, 107 and 115) concerning the effects on trade union activity of this Act and of the Acts prolonging the state of emergency.
6. 86. As regards the allegation concerning the intention to impose a new law on public information media which would limit the exercise of trade union rights, the Committee notes that, according to the Government, two Bills have been submitted by political parties supporting the Government and by political parties of the opposition, respectively. The Committee observes that the allegations of the complainant are not specific; in particular, neither has the complainant referred to any specific provisions to which exception could be taken from the viewpoint of the principles of freedom of association, nor has it supplied the text of the Bills in question. Consequently, the Committee considers that this aspect of the case does not at present call for further examination.
7. 87. Lastly, as regards the allegations concerning the detention of trade union leaders of the CTN, the Committee notes that, according to the Government, Modesto López, Maximo Valle, Heriberto Torres, Gabino Toruno and Rito Rivas do not appear on the lists of detainees, while Eugenio Membreno is serving a four-year prison sentence for inflicting physical injury on another person. The Committee observes, however, that although Domingo Pérez Rivera, Daniel Garcia Cruz and Carlos Pérez have been released, it is not clear from the Government's statement whether legal proceedings were instituted or whether the legal authority brought charges against the trade union leaders in question. The Committee also notes that the Government has limited itself to stating that Ofilio Garcia and Donald Castillo have been released without denying that they had been detained. Consequently, the Committee, while noting that these five trade unionists have now been released, draws the Government's attention to the fact that the detention of trade union leaders for activities relating to the exercise of their trade union functions is contrary to the principles of freedom of association.

The Committee's recommendations

1. 88. In these circumstances, the Committee recommends the Governing Body to approve the present report and the following conclusions in particular:
   • (a) As regards the dismissal of 39 workers at the Javier Guerra sugar mill, the Committee requests the Government to take steps towards the reinstatement of the 15 workers who are still dismissed.
   • (b) As regards the dismissal of 130 members of the Urban Transport workers' Union, the Committee notes that the dismissed workers have been reinstated with the exception of those who preferred not to go on working, and therefore considers that this allegation does not call for further examination.
   • (c) As regards the allegations concerning Decrees Nos. 530, 812 and 911, the Committee refers to its conclusions on Cases Nos. 1007 and 1133 which concern the restrictions still in force regarding collective bargaining and strikes.
   • (d) As regards the allegation concerning the intention to impose a new law on public information media which would limit the exercise of trade union rights, the Committee considers that this aspect of the case does not at present call for further examination.
   • (e). As regards the allegations concerning the detention of trade union leaders Domingo Pérez Rivera, Daniel Garcia Cruz, Carlos Pérez, Ofilio Garcia and Donald Castillo, while the Committee notes that they have now been released, it draws the Government's attention to the fact that the detention of trade union leaders for activities related to the exercise of their trade union functions is contrary to the principles of freedom of association.