Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

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

A Government representative (the Minister of Labour) hoped for a spirit of constructive dialogue so that this case could be presented and listened to in a receptive way without prejudice. His Government had read carefully the Committee of Experts' comments and had noted the concerns expressed at the consequences of the state of emergency which had led to the suspension of certain constitutional guarantees. A political discussion did not fall within the purview of the discussions of this Committee, but certain considerations expressed by the Committee of Experts on the state of emergency in Nicaragua necessitated a description of the reasons which had led to this decision. The armed conflict and aggression from which Nicaragua was suffering had an impact on all spheres of national life including the labour field. The International Court of Justice decision of 27 June 1986 had clearly recognised these circumstances. At no time had Nicaragua violated the international legal commitments it had undertaken; it had simply, given the seriousness of the circumstances, exercised the powers granted under article 27 of the American Convention of Human Rights and article 4 of the International Covenant on Civil and Political Rights which allowed exceptional measures of this type. Despite the context of armed conflict, his country had made huge efforts to consolidate a new legal framework through popular consultation and the promulgation in January 1987 of a new Constitution. Among the various labour rights enshrined in the new Constitution were the following: workers' participation in the management of undertakings (article 81); equal wages for equal work (article 82); the protection of the minimum wage and social benefits; working conditions which guaranteed physical integrity, health, hygiene and the prevention of hazards; stability in employment; social security; an eight-hour working day and protection of the work of minors. Special attention should be paid to articles 49 and 87, which guaranteed full freedom of association. Article 83 expressly granted the right to strike. These provisions were fully compatible with Article 2, 3, 5 and 7 of Convention No. 87. The efforts just described represented substantial Progress in complying with the commitments undertaken by the Government before this Committee in 1985. The process of changing those legal provisions which had failed to comply with ratified international Conventions had begun logically, i.e. with a new Constitution and would continue by amendment of the ordinary legislation. In this task, the Government would request the good offices and technical assistance of the Office in due course.

Decree No. 245 of 9 January 1987 had extended the suspension of certain constitutional rights and guarantees. The legal basis for this decision was to be found in articles 150(9), 185 and 186 of the Constitution, the latter of which specified that many of its articles could not be suspended by a state of emergency. Among those articles safeguarded in the quest to respect the legal commitments flowing from Convention No. 87, was article 87. The fact that freedom of association has not been suspended in law or in practice under the state of emergency was borne out by the continued development of trade unions: during the seven years following the Revolution, 1,200 trade unions had been created as against barely 126 during the 40 years of dictatorship. Under the same constitutional provision, the workers' right to participate in the management of undertakings, the right to employment, social security, occupational safety and health and other rights have been safeguarded during the state of emergency.

With respect to the right to strike, which was currently suspended, the Government considered this to be a fundamental right. Nevertheless, it was understandable that, given the difficult circumstances in the country, his Government had not been in a position to ensure it. It had taken note of the suggestion made by the Committee of Experts and the Committee on Freedom of Association on the Possibility of limiting the state of emergency to certain regions or rural areas, where military activity was under way. As his Government had stated in several forums, it did not only want to limit the state of emergency; it wanted to suspend it entirely. However, the reality of aggression precluded this.

As for the right of Government employees to join trade unions, he pointed out that articles 131 and 49 of the national Constitution provided for their freedom to organise. In addition, article 87 of this Constitution did not stipulate any exclusion with respect to freedom of association. Employees of the central Government and units subordinate to it had formed a trade union called the National Union of Salaried Employees which had been registered with the Department of Trade Union Associations in the Ministry of Labour.

With regard to the legal possibilities for employers to establish organisations, he said that the rules governing trade unions stated (in section 1) that trade unions were associations of employees, workers or agricultural workers, aimed at promoting economic and social advancement, studying common problems and defending and developing their interests. That provision was linked to article 49 of the national Constitution which set out freedom of association for citizens in general. In practice, there was a multiplicity of employers' organisations currently active in the country. This was demonstrated by the presence in this Committee of employers' representatives.

Regarding the legislative changes suggested by the Committee of Experts regarding the exercise of the right to strike (the majority required for calling a strike, the prohibition of strikes in certain rural occupations and compulsory arbitration after 30 days of a strike) and the ban on political activities by workers' organisations, the legal grounds to enable the examination of these had been prepared. Now that the Constitution had been promulgated, an effort to bring the labour legislation into conformity with the Convention could be made. This was the task of the National Assembly and involved consultations with all sectors of society.

The Employers' members stated that they had tried to discuss this case for many years, but with difficulty, because in 1986 the Government had not appeared and the year before that there had been problems. The 1987 observation had referred to many cases at least six-before the Committee on Freedom of Association, including the complaint presented by the International Organisation of Employers (IOE). The same problem was always at issue, namely the lack of a guarantee of freedom of association and civil liberties. They noted that that Committee had stressed the hope that the state of emergency would not be extended and the Employers' members deplored the fact that new Constitution was silent on the freedom of association of employers. They requested the Government representative to present explanations for this because the previous Constitution had guaranteed these freedoms for all citizens. From the information in the reports of the Committee on Freedom of Association and the Committee of Experts, it was clear that the employers had suffered the consequences of this. This was a separate violation of Convention No. 87 apart from the situation of the state of emergency, because the Convention specifically covered the rights of both workers and employers. This was not a theoretical matter. The Government representative had referred to the presence of an employers' delegation here, but the Employers' members noted that this delegation contained only a small number of the most representative employers' organisations of Nicaragua; the Government had preferred other representatives more favourable to its views even though they were less representative of the employers. Regarding the state of emergency, they considered that the Government representative's statement reflected a persecution mania and wondered whether this was because its citizens did not support the Government. The number of organisations set up was irrelevant because they were not independent of the Government and did not meet the requirements of Convention No. 87. The Committee of Experts had stressed that important rights were suspended under the state of emergency, and it also highlighted other discrepancies. The Government's promises made after the 1983 direct contacts mission and the 1985 discussion of the case in this Committee had not been fulfilled. The IOE had had good reason to submit comments to the Committee of Experts on the application of the Convention because two hours after the new Constitution had been promulgated, the state of emergency had been extended. There was no cause for satisfaction with this situation. It had, in fact, worsened in practice.

The Employer member of Nicaragua criticised the Ministry of Labour for having sent reports without consulting the Council for Private Enterprise (COSEP) and other employers' organisations. Under the new Constitution the right to strike was guaranteed, but this had been suspended since the promulgation of the state of emergency. He stressed that this Constitution did not include the right of employers to establish organisations. As for the number of collective agreements in force, he pointed out that Decree No. 532 required the prior authorisation of the Minister of Labour for their validity; this was contrary to the right to bargain collectively and was against the free will of the parties. He noted the Government's statement that attempts outside the military sphere were being made to involve certain groups, including employers, in the political and economic destabilisation of the country. The Council for Private Enterprise (COSEP) wanted it stated clearly here that this was not the case, because its representatives had suffered over the past decades. He stated that employers in Nicaragua were struggling to uphold free enterprise and ILO principles.

The Employer member of Argentina, being an employer from the same region, sympathised with the restriction on the freedom of association of employers in Nicaragua, such as suffered by COSEP. The reports of the Committee of Experts and the Committee on Freedom of Association stressed the seriousness of the situation. Nicaraguan employers no longer had the possibility of expressing their opinions and soon risked not existing at all. Democracy implied the reign of the rule of law, and a denial of basic rights meant that there was a violation of this. His own country had experienced a similar situation, but had now rediscovered democracy. The discussion involved exceptional measures aimed at restricting freedom, so he urged the Government representative to relay the message for a change of direction and the adoption of necessary measures to end this discriminatory action.

The Workers' members expressed pleasure at the resumption of discussion with Nicaragua. It was better to have a dialogue, even if this proved difficult at times. The Government had supplied reports which had been examined by the Committee of Experts. Today the Government representative had provided important information, particularly that despite the situation, efforts were being made to improve matters. One should not hide the fact, however, that this was a serious case. Constructive measures had been used in the past, such as direct contacts, and these might be used again in the future. They were aware of the lack of stability which made it difficult to apply labour standards, including freedom of association and collective bargaining. Some major concerns had been highlighted by the cases presented to the Committee on Freedom of Association by both employers' and workers' organisations. Certain trade unions linked to the WCL or ICFTU were today severely handicapped in their activities through imprisonment or threatened disappearances. Nobody could say that trade union leaders were in the hands of foreign powers or were not patriotic. The state of emergency could be looked at in other bodies, such as the United Nations, but when it led to the suspension of other freedoms, this had to be discussed by this Committee. The Government representative had mentioned a new fact which should be examined by the Committee of Experts, namely a Decree dated 23 February 1987 restoring the right to organise. They wondered whether the restrictions under the state of emergency were necessary throughout the country and they thought that this needed to be examined. They noted that, after all, a state of emergency, while a valid argument for partial restrictions, could also be used to prohibit everything. The Government representative had recognised that there were divergencies or shortcomings in the legislation, and the Workers' members were particularly concerned at the questions of trade union pluralism. Was the National Union of Salaried Employees for public servants free, autonomous and independent? In addition, the Government had indicated in its report that the formation of rival unions in an undertaking would advantage the employer and weaken the organisational structures and the unity of the working class; the Workers' members considered that this was not a question to be decided by the Government but by the workers themselves. They stressed that in this case one had to be aware of the delicate problems, the need to continue the dialogue and to see whether-through real tripartism at the national level-the Convention could be better applied.

The Worker member of the United Kingdom noted that the presence today of the Minister of Labour demonstrated Nicaragua's good will. The discussion of this case in the past had been difficult, partly as a result of confusion and partly as a result of misunderstood motives. His own Trades Union Congress had been in touch with Nicaraguan workers and hoped to visit the country. Everybody acknowledged that, in a state of war or near war, a state of emergency was inevitable; however, under an emergency it was the workers who suffered the most. The February 1987 Decree restoring the right to organise for trade unions appeared to be a welcome development, but comment was difficult until the Committee of Experts had examined it. He wondered whether this Decree abolished all the restrictions placed on trade unions by Decree No. 245 of 9 January 1987. He was particularly concerned about the right to organise in the public sector and asked if this right was currently guaranteed. He thought that governments encountering difficulties should plan ahead to prepare labour legislation in conformity with ILO Conventions so that such laws could be introduced when the state of emergency ceased. He wondered whether the Government representative could provide assurances on this point, to confirm that consideration would be given to the comments of the Committee of Experts, the discussions in this Committee and the results of the direct contact mission. Regarding the harassment of trade union leaders, he stated that the imprisonment of members of occupational associations anywhere in the world was an affront to all workers. History had shown that, in situations of national emergency, a wise government granted a maximum of freedom to its trade unions so as to obtain not only their support, but also the sympathy of trade unions throughout the world. Likewise, a restriction of trade union rights in such situations received condemnation from trade unions throughout the world.

The Worker member of Belgium, like all trade unionists, was deeply attached to the principles laid down in Convention No. 87. Moreover, trade union pluralism, freedom of expression and the right to hold meeting were basic rights which had to be respected everywhere, even in sometimes difficult circumstances. For these rights and freedoms to be fully applied, there should not be a continual questioning of a people's right to self determination and to construct their own future. He suggested inviting the Government to examine with the Office ways of mitigating the restrictions extended under the state of emergency, as had been suggested by the Committee on Freedom of Association. This could be done by limiting it to certain areas or by safeguarding a certain number of basic rights. But one also had to reaffirm the right of each nation to self-determination and to fix its own future.

The Employer member of Cuba expressed his support for the information supplied by the Government representative. He recalled that Nicaragua had suffered under the dictatorship for 40 years and considered that those who called today for freedom of association were in the past supporting Somoza and were now aligned with the imperialist invaders. It was a matter of general knowledge that imperialists were fueling counter-revolution in Nicaragua.

Another Employer member of Nicaragua stated that it was the employers who were showing a lack of tolerance by refusing the participation of Nicaraguan employer members in various Committees of this Conference, and by suggesting that the Nicaraguan Employers' delegation to this Conference was not representative and was associated with the Government. He stressed that the delegation was made up from various sectors and that all employers had the opportunity to participate in these discussions in full freedom. There was pluralism in the Employers' delegation of Nicaragua. His organisation had been critical of the Government when it felt that the Government was not acting in accordance with its interests, but that criticism had to be constructive, especially in the very serious circumstances facing the country. He stated that everyone aspired to freedom and peaceful coexistence but his organisation had lost 1,300 members who had been assassinated. Who then was violating freedom of association? He was aware that perfection was difficult to attain, but pointed out that article 49 of the national Constitution clearly guaranteed freedom of association. All Nicaraguans should work towards removing the causes of the present difficulties and preparing the legal framework for new laws to be adopted.

The Worker member of the USSR stated that this case required the Committee's sympathy and understanding and agreed with the Workers' members that tranquil dialogue was needed. Unfortunately, he could not agree with the rest of their statement. The Government representative had been very convincing and presented good arguments. Under these conditions, how could one use use legal arguments to say that Nicaragua had violated trade union rights? Some measures were necessary because of the aggression in the country coming from outside. How could one discuss limiting the state of emergency if it was confined to specific areas? The country was far too small for this. He was ready to admit that plurality of unions might favour employers since, as everyone knows, certain employers had been involved in plots against the Republic, and had used arms for this purpose.

It was true that the state of emergency hampered economic and other development, but the Government was doing its utmost to maintain freedom of association, He noted that a co-ordination council had been created some time ago by the whole of the trade union movement which had attempted to make economic developments, but the question was now rather one of saving the country. He expressed his understanding for the Government representative who had said that these were only temporary measures; the country needed time and assistance from many sectors, such as the international community, the international trade union movement and the ILO, so as to restore and guarantee the independent development of Nicaragua. The task of this Committee - indeed of the ILO as a whole - was to express understanding for the situation and indignation at the acts of aggression in Nicaragua.

The Worker member of Nicaragua stated that Nicaraguan workers were fighting to defend their lives and essential freedoms. The main obstacle to trade union action in rural areas was the aggression of Contra mercenaries, who had killed 127 trade unionists. He recalled that under the previous dictatorship, as shown by the complaint from the WCL to the ILO in 1973, employers had been trying to suppress unions. It was therefore surprising that those same employers were now defending the workers. Some opinions expressed in the present Committee might give the impression that the situation was disastrous; but according to the report of a Swiss trade union, 6.5 per cent of workers had been unionised in 1979, whilst now 75 per cent of workers were organised in seven trade union centrals. The speaker was in favour of the defence of universal rights such as freedom of association, and over 500 union meetings had taken place in his country to demand that the right to strike, freedom of association, agricultural reform, and safety and health at work be recognised in the Constitution. The workers were the first to regret the state of emergency but their main concern was to achieve peace. This year, the first of May was celebrated by all the union centrals without enmity and without killings and arrests of trade unionists like in other countries. There should be dialogue with all parties concerned in Nicaragua to promote reconciliation.

The Worker member of Uruguay expressed his concern at the situation in Nicaragua. He referred to the report of the Committee of Experts which had suggested limiting the geographical application of the state of emergency, and he considered that the situation should be examined as a whole in relation to the aggression suffered by Nicaragua, which should be condemned as the International Court of Justice had done in 1986. He recalled the assistance which his Government and his trade union organisation had given to the efforts of the Contadora Group. He made an appeal for all governments, workers and employers to follow the same policy in order to ensure that peace is achieved.

The Worker member of the Byelorussian SSR understood the Government's position and the effect of the aggression on the situation in Nicaragua as a whole. Even in these conditions the Government had promoted much faster trade union growth than in the 40 years of dictatorship. Clearly, in wartime conditions it was hard to guarantee rights, and yet even so the Government was doing its best: freedom of association could only be guaranteed when national independence was guaranteed. He was surprised at some of the positions adopted by the Employer members, and proposed that the Committee should recognise that the difficulties of applying Convention No. 87 in Nicaragua were linked to the aggression it was suffering.

The Government representative of Nicaragua recalled that the reasons for his absence from the Committee in 1986 had been explained in detail. In reply to the Workers' members, as regards the practical implications of the state of emergency for the limitation of union activities, he pointed out that 55 of the articles of the Constitution were not in the least affected: under its article 186 the President of the Republic could not suspend or abolish them. Article 87 on the exercice of freedom of association was one of the protected provisions. The union movement had developed since the Sandinista revolution: in the previous 40 years there had been 126 unions, but in the past seven years 1,384 unions had been created, which meant an increase in the numbers of unionised workers. The unions were of various kinds: there were seven central organisations which participate in all economic and social activities and could criticise the Government. Civil servants' right to organise is protected by articles 49 and 131 of the national Constitution: they had already formed an organisation, the National Union of Salaried Employees, and it is not through any wish of the Government that it is a sole trade union. In the Government's view, it is for the workers to decide whether to form one central union or several. In reply to a Workers' member's question, the Government intended to revise legislation where necessary and draft new legislation with all those interested sectors with a view to implementing this legislation as soon as a more normal situation was established. In reply to some Employers' members, the fears expressed as to restrictions on employers' right to organise, alleged to exist under article 49 of the Constitution, were unfounded: the list in that article was not limitative but illustrative. Section 1 of the Regulations on trade union associations was in force and applied and recognised the right of both employers and employees to form organisations. In practice the Government had given guarantees to employers to develop their activities. The private sector remained predominant and, according to the National Institute of Statistics, accounted for 55 per cent of the gross national produce. There were a variety of independent employers' and workers' organisations with the right of assembly and the right of expression-as was demonstrated for example by the opinions expressed by Employer members of Nicaragua in the present Committee.

The Government representative stated that next time this case should be examined in conformity with the normal procedures of the ILO and not as a continuation of the present discussion. He also indicated that this situation should be evaluated in the light of the very serious circumstances his country was facing-circumstances described above which had led to the state of emergency.

In view of the serious concern expressed in the Committee, the Employers' members proposed that the Committee's conclusions be mentioned in a special paragraph in the Committee's report.

The Workers' members expressed their understanding for the Employers' members' proposal, but they preferred simply to make conclusions and re-examine the situation next year.

The Employers' members agreed to this suggestion while reserving the right to request a special paragraph at the next session, if the situation had not improved.

The Committee noted the information supplied by the Government representative and the various points of view and comments expressed during the discussion of this case. It welcomed the renewal of the dialogue with the Government concerning the questions raised by the Committee of Experts. The Committee noted, however, with great concern, that the Committee of Experts, in its report, had observed that a number of serious divergencies still remain between the law and practice and the full application of the Convention, particularly as a result of the reestablishment of a state of emergency in the country. The Committee urged the Government to give serious consideration to the comments of the Committee of Experts and, notwithstanding the state of emergency, to take all necessary steps to remove all practical and legal restrictions on the right to workers' and employers' organisations to exercise freely the rights guaranteed by the Convention. The Committee requested the Government to supply full information to the Committee of Experts on the measures taken to give effect to the Convention.

In view of the serious concern expressed in the Committee, the Employers' members proposed that the Committee's conclusions be mentioned in a special paragraph in the Committee's report.

The Workers' members expressed their understanding for the Employers' members' proposal, but they preferred simply to make conclusions and re-examine the situation next year.

The Employers' members agreed to this suggestion while reserving the right to request a special paragraph at the next session, if the situation had not improved.