Definitive Report - Report No 335, November 2004

Case No 2311 (Nicaragua) - Complaint date: 21-NOV-03 - Closed

Allegation: The complainant organization alleges excessive delays and difficulties in the revision procedure for a collective agreement

1. 1127. The complaint is contained in a communication from the José Benito Escobar Workers’ Trade Union Confederation (CST-JBE), dated 21 November 2003. The Government sent its observations in a communication dated 15 March 2004.
2. 1128. Nicaragua has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1129. In its communication dated 21 November 2003, the CST-JBE states that, as a consequence of the non-compliance of the Mayor’s Office of the Municipality of León with a collective agreement which entered into force in 2001, on 9 June 2003 the Trade Union of Workers of the Mayor’s Office of the Municipality of León (SITRADEL) presented a list of demands to the Departmental Labour Inspectorate of the Department of León with the aim of activating a revision procedure for the agreement.
2. 1130. The complainant organization adds that the administrative authority acknowledged SITRADEL as representing the workers and appointed a Counsel for Conciliation. The two parties were subsequently summoned to a conciliation hearing on 11 August 2003. Six conciliation sessions were held on 2 September 2003. SITRADEL requested the Minster of Labour to appoint a new Counsel for Conciliation, as the existing Counsel had proven to be biased towards the employer. A new Counsel for Conciliation was appointed and a further nine conciliation sessions were held. The complainant organization states that the employer was not present at the last few meetings, and, following a request from SITRADEL, the new Counsel for Conciliation declared the Municipality of León to be in default for not having attended sessions Nos. 7, 8 and 9 of the negotiations regarding the list of demands.
3. 1131. The complainant organization states that, upon receiving notice that it had been found to be in default, the Municipality of León submitted an application on 17 September 2003 requesting the Directorate of Collective Bargaining and Individual Conciliation to appoint a new conciliator and to transfer the bargaining procedure to the city of Managua. The Departmental Labour Inspector for the city of León turned down the request and SITRADEL requested the Minister of Labour to appoint a Chair for a Strike Council.
4. 1132. The complainant organization alleges that the Directorate for Collective Bargaining and Individual Conciliation did exceed its mandate in unilaterally proceeding to dismiss the Counsel for Conciliation. According to the complainant organization, only the Minister of Labour who had appointed the Counsel for Conciliation could reverse her appointment.
5. 1133. The complainant organization states that the bargaining procedure in question went on for five months, breaking the time limit set down in legislation (15 days extendable by a further eight days). The complainant organization states that this occurred as a consequence of the difficulties created by the employer and the complacent attitude adopted by the Ministry of Labour. According to the complainant organization, the employer failed to attend three sessions and attended four others without displaying any willingness to continue with the bargaining procedure. Finally, the complainant organization states that, in an effort to avoid having to appoint a Chair for a Strike Council, the Ministry of Labour failed to deal correctly with the bargaining procedure, the relevant request has been made on seven occasions and the administrative authority has so far failed to rule with regard to this.

B. The Government’s reply

1. 1134. In its communication dated 15 March 2004, the Government states that the bargaining procedure involving SITRADEL and the Mayor’s Office of the Municipality of León was conducted in accordance with the labour laws currently in force. The Government states that SITRADEL presented a list of demands to the Departmental Labour Inspectorate of the city of León and Chinandega, requesting that the collective agreement signed on 12 July 2001 be revised. The said list was accompanied by complaints of non-compliance with the labour standards contained in the aforementioned collective agreement and in particular with regard to methods of payment for the normal working day, overtime, social benefits and wages. As to this issue, article 240 of the Labour Code states that “the collective agreement shall be revised before its validity expires at the request of one of the parties, if there are substantial changes to the social and economic conditions of the company or the country that make this advisable”.
2. 1135. The Government states that the Departmental Labour Inspectorate of León issued a decision in which it admits the list of demands that was submitted and appoints a Counsel for Conciliation, to whom proceedings were transferred so that negotiations could be initiated. On 12 June 2003, the Directorate for Conciliation and Trade Union Associations for León and Chinandega ordered that the Mayor’s Office of the Municipality of León be informed and also ordered the appointment of a negotiating committee within 72 hours, in accordance with the terms of article 238 of the Labour Code, whilst at the same time SITRADEL submitted an application in which it appointed its negotiating committee. On 7 August 2003, the Counsel for Conciliation confirmed the negotiating committees of both parties and set the first hearing for Monday, 11 August 2003, both parties being informed of this decision.
3. 1136. The Government states that during the first hearing both parties were reminded that although differences might arise during the process, they should be discussed in a cordial and harmonious manner, with the Ministry of Labour ensuring that any subsequent agreement between the parties did not in any way infringe the minimum guarantees established in the Labour Code. The two parties set out convergence criteria regarding the spirit of the negotiations and had it recorded in the minutes that they would revise fully the points that made up the list of demands whilst agreeing on a timetable for meetings. The Government states that this is not a question of a dispute, as none of the grounds established in article 243 of the Labour Code apply.
4. 1137. The Government states that 12 meetings took place in total and that subsequently the parties participated in a session with the Minister of Labour.
5. 1138. As to the appointment of conciliators for the bargaining procedure, the Government states that, on 22 September 2003, the Directorate for Collective Bargaining and Individual Conciliation of Managua ordered that all proceedings related to the case be transferred to a lawyer, Irella Esther García Guillén, in her capacity as ad hoc conciliator regarding the list of demands submitted by SITRADEL. The parties were also summoned for a hearing on Wednesday, 1 October 2003 and a lawyer, Liduvina Molinares Canelo was appointed as Counsel for Conciliation.
6. 1139. The Government states that the Ministry of Labour’s actions with regard to the appointment of public servants for the bargaining procedure regarding the revision of the collective agreement with the Mayor’s Office of the Municipality of León, were strictly in accordance with the existing instruments. The Government adds that although the Minister is involved in the decision-making process at the highest level and has the legal authority to exercise authority over those departments and public servants within his Ministry, it is equally the case that the same legislation is clear when it states that these powers fall within the scope of his authority; that is to say, faced with the dilemma of having two general directorates at the same level in the hierarchy, a level at which they cannot and should not interfere in one another’s particular field. It is the Minister who has the authority over their duties and departments and who, in the end, has the power to make the final decision in such disputes. Nevertheless, despite having the legal authority to appoint a labour inspector as an ad hoc conciliator, with regard to the scope of duties and authority, this automatically appointed ad hoc conciliator remains directly under the control of the Directorate for Collective Bargaining and Conciliation as it is the only competent authority with jurisdiction over the signing and revision of collective agreements. To proceed in any other manner would be to infringe the law set down in the Labour Code, known as the “law on constituting a Strike Council”.
7. 1140. The Government adds that on 1 October 2003, the “Salvador Espinoza” Trade Union for the Mayor’s Office of the Municipality of León (SITRALSE) submitted an application in which it requested that it be considered a full party to the negotiating committee. On 7 October 2003, the Directorate for Collective Bargaining and Individual Conciliation of Managua issued the following decision: “the ‘Salvador Espinoza’ Trade Union for the Mayor’s Office of the Municipality of León, SITRALSE Trade Union, is considered to be one of the parties to the negotiations regarding the list of demands concerning the Mayor’s Office of the Municipality of León”. This action led to a dispute between the trade unions with regard to the participation of the trade union SITRALSE in the negotiations. The trade union SITRADEL maintains that it refuses to negotiate jointly with SITRALSE. On 16 October 2003, SITRALSE submitted an application in which it requests that the Directorate for Collective Bargaining and Individual Conciliation should issue a decision on the parties participating in the negotiations as soon as possible.
8. 1141. The Government states that under no circumstances can, or indeed should, a duly established trade union organization with legal identity be refused the right to collective bargaining. The status of the trade union organization is always assessed once the process has moved ahead, that is to say, when no list of demands has been consolidated by the trade union organizations due to begin the bargaining procedure and so as not to delay the negotiations, the trade union organization which was the most recent in becoming a signatory to the action is accepted, which was not the case with the trade union organization SITRALSE. The Mayor’s Office of the Municipality of León has expressed its willingness to continue the bargaining procedure with the existing trade unions within the Municipality of León. However, the Mayor’s Office states that until the trade unions resolve the situation, they will not be permitted to sit at the negotiating table.
9. 1142. The Government adds that on 22 August 2003, the Mayor of León requested that he be excused from the upcoming hearings on the negotiations, given that he had been summoned by the Minister of Labour on the same day as the meeting. On 17 September 2003, the Mayor of León stated that on 12 September of the same year he sent an application to the Minister of Labour in which he requested that the negotiations concerning the list of demands related to the Mayor’s Office of the Municipality of León be transferred to the central administration and dealt with by a conciliator from the Ministry of Labour in Managua. On 25 September 2003 the employer was ruled to be in default. On 26 September 2003, SITRADEL, taking account of the default ruling, requested that the dossier be transferred to the Ministry of Labour in Managua for the relevant legal proceedings and the appointment of a Chair of a Strike Council.
10. 1143. The Government states that the decision issued by the ad hoc conciliator declaring the Mayor’s Office of the Municipality of León to be in default was revoked for being unjustified. The Government states that it is regrettable that although in this case the negotiating procedure has not been exhausted, it has been interrupted owing to a prevailing negative position regarding the incorporation of another organization affiliated to the same trade union federation. The Ministry of Labour recognizes that the spirit and willingness of the parties must always prevail in the negotiations this being the reason behind the process in the first place. Consequently, the Ministry urges those involved in the process to put aside their differences and continue negotiating.

C. The Committee’s conclusions

1. 1144. The Committee notes that the complainant organization alleges that: (1) as a consequence of the non-compliance of the Mayor’s Office of the Municipality of León with a collective agreement which entered into force in 2001, on 9 June 2003 the Trade Union of Workers of the Mayor’s Office of the Municipality of León (SITRADEL) presented a list of demands to the Departmental Labour Inspectorate of the Department of León with the aim of activating the revision procedure for the agreement; (2) the bargaining procedure in question went on for five months, breaking the time limit set down in legislation (15 days extendable by a further eight days); (3) the delays were due to the attitude displayed by the employer which failed to attend several meetings (and was even declared to be in default by a conciliator) and attended meetings but was unwilling to continue with negotiations; and (4) the Ministry of Labour failed to deal correctly with the bargaining procedure and failed to initiate the appointment process of a Chairperson at the Strike Tribunal, as requested by the complainant organization.
2. 1145. In this respect, the Committee notes that the Government states that: (i) the bargaining procedure between the Trade Union of Workers of the Mayor’s Office of the Municipality of León (SITRADEL) and the Mayor’s Office of the Municipality of León was carried out in accordance with the existing labour laws; (ii) with regard to the conciliators appointed as a part of the process of revising the collective agreement, the administrative authority’s actions were strictly in accordance with the instruments in force at that time; (iii) on 1 October 2003, the “Salvador Espinoza” Trade Union for the Mayor’s Office of the Municipality of León (SITRALSE) requested that it be allowed to participate in the bargaining procedure, leading to a dispute with the trade union organization SITRADEL which refuses to negotiate jointly with SITRALSE; (iv) the Mayor’s Office of the Municipality of León has expressed its willingness to continue the negotiating process. However, the Mayor’s Office states that until the trade unions resolve the situation they will not be permitted to come to the negotiating table; (v) the default ruling was revoked; and (vi) it is regrettable that the bargaining procedure should have been interrupted owing to a prevailing negative position regarding the incorporation of another trade union organization.
3. 1146. In this context, the Committee notes that for different reasons, the process of revising the collective agreement concluded between the trade union organization SITRADEL and the Mayor’s Office of the Municipality of León has continued for an overly long period and the timetable envisaged in legislation has not been respected. In this respect, the Committee stresses “… the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations” and that “the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 814 and 816].
4. 1147. Under the circumstances, the Committee requests the Government, taking into account the terms of Article 4 of Convention No. 98, ratified by Nicaragua, to encourage the parties to conclude a new collective agreement to regulate the working conditions of the workers of the Mayor’s Office of the Municipality of León as soon as possible.
5. 1148. Finally, as to the Government’s declaration on the delay affecting the bargaining procedure which was caused by a dispute between SITRADEL and another trade union organization (SITRALSE) which wishes to participate in the negotiation of the agreement, the Committee notes that the Nicaraguan Labour Code allows for the participation of more than one workers’ organization and does not simply grant exclusive bargaining rights to the most representative organization. The Committee therefore considers that any dispute between workers’ organizations over participation in a bargaining procedure should be resolved by an impartial arbitrator chosen by the parties, or by the courts.

The Committee's recommendations

1. 1149. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government, taking into account the terms of Article 4 of Convention No. 98, ratified by Nicaragua, to encourage the parties to conclude a new collective agreement to regulate the working conditions of the workers of the Mayor’s Office of the Municipality of León as soon as possible.
   • (b) The Committee considers that any dispute between workers’ organizations over participation in a bargaining procedure should be resolved by an impartial arbitrator chosen by the parties, or by the courts.