Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

The Committee notes the observations of the International Organization of Employers (IOE), received on 1 September and 25 October 2021, denouncing acts of persecution, intimidation and repression against leaders of the Superior Council for Private Enterprise (COSEP) and against the business sector affiliated with COSEP, as well as the arbitrary detention of employer leaders without warrant and legal due process. The IOE specifically denounces the arbitrary detention on 8 June 2021 of the former president of COSEP, José Adán Aguerri Chamorro, accused of the crime of conspiracy for undermining national integrity. The IOE also denounces the detention on 21 October 2021, without warrant, of Michael Healy, President of COSEP, as well as its Vice-President, Álvaro Vargas Duarte.

The Committee takes note of the Government’s general reply, which indicates that the detention of Mrs. Aguerri Chamorro, Healy and Vargas Duarte is not related to their activities as employers, but that they are being investigated and prosecuted for various criminal acts. The Government also indicates that their detention was carried out in observance of all rights and guarantees, respecting physical and legal security and integrity. The Committee regrets to note that in its reply the Government merely states that the employer leaders were detained for common law crimes, without providing any information or documentation regarding the charges brought against them, the legal or judicial proceedings instituted and the outcome of such proceedings. The Committee observes that the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights have condemned the detention of the employer leaders and have urged the Government to proceed with their immediate release. The Committee recalls that the rights conferred upon the workers’ and employers’ organizations protected by the Convention are void of meaning if there is no respect for fundamental freedoms, such as the safety and physical integrity of persons, the right to protection against arbitrary arrest and detention, and the right to a fair trial by independent and impartial tribunal. It also recalls that the arrest of employer officials for reasons linked to actions relating to legitimate demands is a serious restriction of their rights and a violation of freedom of association.

Expressing its deep concern at the seriousness of these allegations, the Committee requests the Government to provide precise information on the detentions and, in particular, on the judicial proceedings instituted and their outcome. In the absence of any specific indication of the charges giving rise to the detention of the employer leaders, the Committee urges the Government to take the necessary measures to ensure the safety of Mr Aguerri Chamorro, Healy and Vargas Duarte and ensure their immediate release if their detention is related in any way to the exercise of their functions as employer leaders. It also requests the Government to provide its comments relating to all other issues raised by the IOE, including those regarding the Act regulating foreign agents No. 1040, adopted on 15 October 2020, and the allegation that several sections therein place unacceptable restrictions on freedom of association.

Article 3 of the Convention. Right of workers’ organizations to organize their activities in full freedom and to formulate their programmes. The Committee recalls that for several years it has been referring to the need to take steps to amend sections 389 and 390 of the Labour Code, which provide that collective disputes shall be referred to compulsory arbitration when 30 days have elapsed since the calling of the strike. In this regard, the Committee notes the Government’s indication that: (i) since 2007 to date, the provisions of these articles have not been applied and there has been no need to establish an Arbitration Tribunal; and (ii) the Government has prioritized dialogue to resolve labour disputes in both the public and private sectors by setting up roundtables for dialogue in which the Ministry of Labour participated as facilitator. The Government adds that thus far, the results have been successful and it is therefore not currently necessary to amend sections 389 and 390 of the Labour Code. While taking due note of the Government’s indications regarding the emphasis placed on dialogue as a solution to labour disputes, the Committee can only insist once again on the need to amend the abovementioned provisions of the Labour Code, as the imposition of compulsory arbitration to end a strike, beyond the cases in which a strike may be limited or even prohibited, is contrary to the right of workers’ organizations to freely organize their activities and formulate their programmes. Regretting the lack of progress in this respect, the Committee urges the Government to take the necessary measures to amend sections 389 and 390 of the Labour Code in order to ensure that compulsory arbitration is only possible in cases where strikes may be limited or even prohibited, namely in cases of conflict within the civil service relating to officials exercising authority on behalf of the State, in essential services in the strict sense of the term or in the event of an acute national crisis. The Committee requests the Government to provide information on any developments in this regard.

Article 11. Protection of the right to organize. In its previous comment, the Committee noted the Government’s various initiatives aimed at promoting the right to organize and requested it to provide information concerning their implementation. The Committee notes the information provided by the Government in this respect and notes that the Government’s initiatives have been focused, inter alia, on building trust among the members of trade union organizations in terms of guaranteeing their right to freedom of association, removing red tape in the registration procedures of trade union organizations, promoting the organization of own-account workers, and providing ongoing training for trade union leaders. The Committee notes that, according to the Government, as a result of the abovementioned policies to promote and encourage unionization between 2018 and 2021, 111 new trade union organizations were formed, affiliating 3,902 workers, and 2,884 trade union organizations were updated that grouped together 222,370 workers. The Committee takes due note of this information and requests the Government to continue providing information regarding the initiatives aimed at promoting the right to organize and the results of said initiatives.

[The Government is asked to reply in full to the present comments in 2022.]