Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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

The Committee notes the Government’s reply to the comments from the International Trade Union Confederation (ITUC) dated 29 August 2008 concerning the application of the Convention. The Committee also notes the new comments from the ITUC dated 26 August 2009, claiming that enterprises recruit workers for short periods or by the day, which prevents them from joining trade unions, and there are problems concerning the exercise of trade union rights in the maquila (export processing) industry. The Committee requests the Government to send its observations in this respect. Furthermore, in view of the Government’s indication that it is unaware of the comments made by the International Confederation of Free Trade Unions (ICFTU) – presently known as the ITUC – in 2005 and 2006 concerning the criminal proceedings against seven trade union officials, obstacles to the registration of a trade union executive committee and the declaration by the administrative authority that a work stoppage in the education sector was illegal, the Committee notes that the Office has sent these comments once more to the Government. The Committee requests the Government to carry out an investigation and provide its response in this respect.

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes in full freedom. The Committee recalls that it has been referring for a number of years to the need for measures to be taken to amend sections 389 and 390 of the Labour Code, which provide for compulsory arbitration of a dispute where 30 days have elapsed since the calling of a strike. The Committee notes the Government’s reply, in which it requests clarification regarding the legal basis of the Committee’s claims that these provisions need to be amended. In this respect, the Committee recalls that the right to strike is one of the essential means at the disposal of workers and their organizations to promote and defend their economic and social interests. This right is based on the recognized right of workers’ and employers’ organizations to organize their activities and formulate their programmes for the purpose of furthering and defending the interests of their members (Articles 3, 8 and 10 of the Convention). The Committee has also pointed out that the right to strike is an intrinsic corollary of the right to association protected by the Convention. Furthermore, the Committee has considered that arbitration imposed by the authorities on their own initiative is difficult to reconcile with the principle of the voluntary nature of negotiation (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 145, 179 and 258). Accordingly, in so far as compulsory arbitration obstructs the exercise of the right to strike, such arbitration violates the right of trade unions to organize their activities in full freedom and could only be justified in the context of the public service, or essential services in the strict sense of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population), or in the case of an acute national crisis. The Committee requests the Government once again to supply information in its next report on the measures taken or contemplated to amend these sections as indicated.