Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Nicaragua (Ratification: 1967)

The Committee notes the Government’s report and the comments made by the Confederation of Labour Unification (CUS) seeking the Committee’s opinion on Decree No. 93-2004 amending sections 21, 32 and 53 of the Occupational Associations Regulations. The Committee recalls that its previous comments related to the following points:

(1)  the suspension, due to failure to adopt implementing regulations, of the Civil Service and Administrative Careers Act of 1990, section 43(8) of which recognizes the right to organize, to strike and to collective bargaining of public servants;

(2)  restrictions on the access of foreign nationals to trade union office (section 21 of the Occupational Associations Regulations, 1997);

(3)  restrictions on the functions of federations and confederations (section 53 of the 1997 Regulations);

(4)  the possibility of a dispute being submitted to compulsory arbitration 30 days after a strike has been called (sections 389 and 390 of the Labour Code); and

(5)  the grounds on which a worker may lose trade union membership, which are left to the discretion of the public authority (section 32 of the 1997 Regulations).

With regard to the issue raised concerning the Civil Service and Administrative Careers Act, the Committee notes with interest the adoption of new Act No. 476 ("Civil Service and Administrative Careers Act") repealing the Act of 1990. The new Act, in conjunction with Executive Decree No. 87-2004 issuing regulations under the Act, establishes the civil service regulations for certain public servants and public employees. The Committee notes in particular subsections 10 and 11 of section 37 of the Act, which establish as rights of public servants and employees "freedom of trade union organization, trade union protection, collective bargaining and other trade union guarantees which are recognized for all workers by the Constitution and the law", as well as "the exercise of the right to strike, in accordance with the principles and procedures set forth in the Labour Code that is in force". Section 69 also establishes for such public servants and employees the right to establish trade unions, in accordance with the provisions of the Labour Code.

The Committee also observes that, under section 9 of the new Act, workers in public State enterprises, universities and higher technical education institutions remain excluded from its scope of application. The Committee requests the Government to provide information in its next report on the legislative provisions governing the exercise of the rights set forth in the Convention for these workers.

With regard to the restrictions on the access of foreign nationals to trade union office, under section 21 of the Occupational Associations Regulations, the Committee notes with satisfaction the adoption of Decree No. 93/2004 amending the above section so as to eliminate the requirement to be a national of Nicaragua for members of the executive body of the trade union.

With regard to the restriction on the exercise of the right to strike by federations and confederations, which was set out in section 53 of the Occupational Associations Regulations, under which "in labour disputes, federations and confederations shall only intervene by providing advice and the moral and economic support required by the workers affected", the Committee notes with satisfaction the adoption of Decree No. 93-2004 amending the above provision and establishing that "in labour disputes of any nature, federations, confederations and central organizations shall have the right to participate in such disputes in accordance with the procedures established for the resolution of labour disputes".

With reference to the maintenance of compulsory arbitration in sections 389 and 390 of the Labour Code in cases in which 30 days have elapsed from the calling of the strike, the Committee notes that the Government reiterates its previous comments and explains that, once the possibility of negotiations has been exhausted, the dispute has lasted for over 60 days, which constitutes a situation that places the country’s economic and social development at risk. The Committee reiterates its previous observation to the effect that, if a dispute is referred to compulsory arbitration after this time period has elapsed, the arbitration award should be binding only if all the parties agree to it or in cases in which the strike has been called in an essential service in the strict sense of the term, or in the context of an acute national crises. The Committee requests the Government to indicate in its next report the measures adopted or envisaged to amend these sections as outlined above.

With regard to the reasons for which a worker may lose trade union membership, which are left to the discretion of the public authority under the terms of section 32 of the Occupational Associations Regulations of 1997, the Committee notes with satisfaction the adoption of Decree No. 93-2004, referred to above, amending the above provision and providing that "the reasons for which a member of a trade union organization loses such membership shall be established in the statutes of the trade union when it is constituted or not more than 70 days after the signature of the constituent document".