Report in which the committee requests to be kept informed of development - Report No 378, June 2016

Case No 3177 (Nicaragua) - Complaint date: 10-NOV-15 - Closed

Allegations: Refusal by the administrative authority to register a new trade union and anti-union discrimination (dismissals) by the public sector employer against the workers who formed the union

1. 494. The complaint is contained in a communication of 10 November 2015 from the Confederation of Trade Union Action and Unity (CAUS).
2. 495. The Government sent its observations in a communication dated 5 February 2016.
3. 496. 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. The complainant’s allegations

1. 497. In its communication of 10 November 2015, the complainant organization denounces the administrative authority’s refusal to register a new trade union and alleges anti-union discrimination (pressure and dismissals) by the municipal authority of El Crucero against the workers who formed the union.
2. 498. The complainant organization describes the sequence of events which gave rise to the complaint, as follows: (i) on 26 November 2012, a group of workers employed by the El Crucero municipal authority agreed to convene a general assembly in order to create a new trade union for the municipal employees; (ii) on 5 December 2012, the general assembly was held; having verified that 32 active employees of the municipality (whose names are provided by the complainant) were present and that the requirements of Nicaraguan labour law were met, the employees formed the El Crucero Municipal Workers’ Union, adopted its constitution and subsequently elected its executive committee; (iii) on 6 December 2012, they submitted an application for registration of the union to the Trade Union Associations Directorate at the Ministry of Labour, in order for the union to be included in the official register, acquire legal personality and have its executive committee approved; all the legally required documentation, including the list of workers with their names and signatures, was appended to the application; (iv) since the ten-day period for registration established by article 213 of the Labour Code had elapsed without any response from the authority, on 11 February 2013 five of the elected trade union officers applied in writing to the director of the Trade Union Associations Directorate for the union to be registered; and (v) through Decision No. 04-2013 the Trade Union Associations Directorate rejected the union’s application for registration, on the grounds that a special inspection by the Departmental Labour Inspectorate on 14 February 2013 had established that five of the founding members, who were also on the executive committee, were not active employees of the municipality.
3. 499. The complainant organization alleges that the Trade Union Associations Directorate: (i) failed to fulfil its duty to register the union within the legally established period of ten days from the submission of the application, only responding 75 days later; (ii) despite the fact that it lacked the legal authority to do so, that this was not a requirement for union registration and that nobody had requested it, it called for a special investigation, even though none of the three grounds for refusing registration established by article 213 of the Labour Code was applicable to the union (objectives or aims not in conformity with the Labour Code, fewer than 20 members, or proven falsification of signatures or non-existence of individuals listed as members); and (iii) colluded with the municipal authority in failing to register the trade union in time and thereby leaving the workers unprotected; in the two months following the trade union’s establishment, the municipal authority pressurized and penalized the workers, issuing letters of dismissal to most of the executive committee members.

B. The Government’s reply

1. 500. In its communication of 5 February 2016, the Government affirms that its actions conformed entirely to national law and that no fundamental right related to freedom of association was violated. The Government indicates that this is demonstrated by the events which occurred and the actions and decisions of the competent authorities: (i) on 6 December 2012, the Trade Union Associations Directorate received, from an officer of the complainant organization, an application for registration of the El Crucero Municipal Workers’ Union; (ii) on 19 December 2012, a group of workers of the aforementioned municipality appeared, requesting proof that the union was in the process of being registered and denouncing the fact that various people elected to positions of leadership had lost their jobs; (iii) on 8 February 2013, the Ministry of Labour received a complaint from members of the trade union that was being registered objecting to the supposed violation of trade union immunity and the dismissal of workers proposed as members of its executive committee; (iv) on 11 February 2013, as a result of the complaint received on 19 December 2012 the Trade Union Associations Directorate requested the Departmental Labour Inspectorate to conduct an inspection at the El Crucero municipal offices in order to ascertain whether the individuals who had attended the constituent assembly of the union were active workers; (v) on 14 February 2013, the Departmental Labour Inspectorate conducted an inspection at the aforementioned municipal offices to investigate the allegations, including the supposed violation of trade union immunity, and established that only two of the eight workers who claimed to comprise the executive committee were in fact actively employed, and that the other six had resigned from their posts, unbidden and of their own free will; it therefore declared the complaint alleging violation of trade union immunity to be unfounded (Departmental Labour Inspectorate Decision No. 106-2013 also shows that the inspection of the payroll documents for the first two weeks of February 2013 revealed that 13 of the 32 workers listed by the complainant organization as present at the union’s constituent assembly were not actively employed); (vi) on 19 February 2013, as a result of the inspection, the Trade Union Associations Directorate issued Decision No. 4-2013 rejecting the union’s application for registration on the grounds that the applicants were not active municipal employees; the application thus failed to comply with one of the fundamental legal requirements (article 207 of the Labour Code requires that there be no fewer than 20 members for the creation of a trade union); (vii) on 21 February 2013, the Trade Union Associations Directorate received an appeal against Decision No. 4-2013; it referred the appeal to the Labour Inspectorate-General, which in turn issued Decision No. 76-2013 declaring the appeal to be unfounded and upholding Decision No. 4-2013; (viii) on 23 May 2013, one of the members of the executive committee of the union which had applied for registration (Ms Alejandra Urtecho Meléndez) lodged an appeal for amparo (protection of constitutional rights) against Decision No. 76-2013 and, on 30 October 2013, the Constitutional Chamber of the Supreme Court of Justice issued Ruling No. 1530, which dismissed the appeal for amparo, finding that it did not substantiate the alleged violations of the applicant’s labour rights and that the applicant did not provide evidence to rebut the findings of the labour inspection, which had established that a number of the members present at the union’s constituent assembly were not active employees of the municipality concerned. The ruling of the Constitutional Chamber of the Supreme Court of Justice, a copy of which is provided by the Government, also indicates that the appellant: (a) did not attach evidence to her appeal for amparo that each of those present at the union’s constituent assembly was actively employed; and (b) was not entitled to trade union immunity because the union had not previously been registered, and dismissing members of the executive committee of a trade union which had not been duly registered was in conformity with the Labour Code and the Municipal Administrative Careers Act.
2. 501. Lastly, the Government highlights the progress made in terms of freedom of association in the country, referring to the large increase in registrations of trade unions (with 1,437 new trade union organizations registered in the 2007–15 period), and the recognition of public sector trade unions and unions formed by own-account workers.

C. The Committee’s conclusions

1. 502. The Committee notes that the complainant objects to the administrative authority’s refusal to register a new trade union and alleges anti-union discrimination by the public employer (El Crucero municipality) in the form of dismissals of the workers who formed the trade union.
2. 503. As regards the refusal to register the trade union, the Committee observes that an inspection carried out by the Departmental Labour Inspectorate, in response to a complaint that members of the union’s executive committee were not active workers, established that 13 of the 32 workers listed by the complainant as participants in the union’s constituent assembly were not active workers. The Committee observes that, in view of this information, the Trade Union Associations Directorate refused to register the trade union on the grounds that it failed to meet the requirement of 20 workers established by article 206 of the Labour Code. The Committee recalls, in this connection, that the legal requirement that there be a minimum number of 20 members to form a union does not seem excessive and, therefore, does not in itself constitute an obstacle to the formation of a trade union [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 292]. However, the Committee notes with regret the delay in the processing of the union’s application for registration, which was received on 6 December 2012 and was not decided upon until 19 February 2013 (75 days later – even though article 213 of the Labour Code imposes a ten-day deadline). The Committee notes that Departmental Labour Inspectorate Decision No. 106-2013, which was appended by the Government, indicates that failure to meet the minimum membership requirement (by one single worker) was established on the basis of payroll information listing the number of active workers in February 2013, two months after the application for registration was made, and that after the submission of this application a complaint was made concerning dismissals in violation of trade union immunity. The Committee cannot rule out the possibility that the delay in proceedings may have had a negative impact on the union’s ability to fulfil the membership requirement and consequently become registered and obtain trade union immunity for its executive committee. It requests the Government to carry out an additional investigation in this regard, to indicate whether the application met the membership requirements for registration at the time of filing, and to the extent that anti-union dismissals are found to have occurred, to register the union if the workers still desire. Finally, the Committee wishes to recall that a long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization [see Digest, op. cit., para. 307].
3. 504. As regards the allegation of anti-union pressure and dismissals, the Committee observes that, if proven, the dismissals would have created an obstacle to the union’s registration (which was refused on the grounds that the union was one worker short). In this respect, the Committee regrets that the complainant organization did not provide more detailed information to substantiate its allegation, such as the dismissal letters to which it refers or the names of those affected. On the one hand, the Committee notes the Government’s indication that it received a complaint alleging violation of trade union immunity, but that the complaint was dismissed after the Departmental Labour Inspectorate established that the six members of the executive committee who were no longer actively employed had resigned from their posts voluntarily. On the other hand, the Committee observes that the ruling of the Constitutional Chamber of the Supreme Court of Justice, appended by the Government, refers to dismissals and indicates that trade union immunity did not apply because the union had not previously been registered and that the dismissal of members of the executive committee of a trade union which had not been duly registered was in accordance with the law (the ruling does not consider whether anti-union motives were involved and merely states that the protection afforded by trade union immunity was not applicable). The Committee expresses its concern at the fact that the allegation of anti-union discrimination was not examined in greater depth, particularly since, if it had been proven, it would have affected not only the workers concerned but also the efforts to establish a trade union within the municipal authority. The Committee recalls that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 835]. In view of the divergent nature of the information supplied concerning the allegation of anti-union dismissals, including inconsistency between the administrative and legal decisions communicated by the Government, and also the lack of specific details that would enable examination of the allegation, the Committee requests the complainant to provide the Government with the most detailed information and evidence possible regarding the alleged dismissals and anti-union motives. The Committee also requests the Government to carry out any additional investigation to determine whether anti-union dismissals took place and, if so, to impose penalties that constitute a sufficiently dissuasive sanction and to award adequate compensation. The Committee requests the Government to keep it informed in this regard.

The Committee’s recommendations

1. 505. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the allegations of anti-union dismissals, the Committee requests the complainant to transmit to the Government the most detailed information and evidence possible regarding the alleged dismissals and anti-union motives.
   • (b) The Committee requests the Government to indicate whether the application met the membership requirements at the time of registration and to carry out additional investigations in order to determine whether anti-union dismissals took place and, if so, to impose penalties that constitute a sufficiently dissuasive sanction, to award adequate compensation and to register the union if the workers still desire. The Committee requests the Government to keep it informed in this regard.