Interim Report - Report No 133, 1972

Case No 629 (Nicaragua) - Complaint date: 14-MAY-70 - Closed

1. 204. The Committee first examined this case at its May 1971 session (see 124th Report, May 1971, paragraphs 88 to 99), when it submitted to the Governing Body an interim report, which was approved by the Governing Body at its 183rd Session (May-June 1971). In this interim report the Committee recommended the Governing Body to request the Government to furnish additional information on certain aspects of the case (see paragraphs 97 and 98 of the 124th Report).
2. 205. This case arose out of allegations according to which, as part of a wave of repression and persecution directed against trade unions, two leaders of the Autonomous Trade Union Movement of Nicaragua (MOSAN), an affiliate of the WCL, had been arrested and imprisoned, and further allegations according to which the Ministry of Labour had taken sides in a dispute between the employees and the firm of " El Porvenir ", said to be subjecting its employees to harsh military discipline.
3. 206. The aspects of the case concerning which the Committee recommended the Governing Body to request additional information from the Government relate, firstly, to a statement by the Government to the effect that the action taken against the two MOSAN leaders was due to the fact they had been caught sticking up subversive posters and, secondly, to the fact that the Government had furnished no answer to the allegations concerning the situation in the firm of " El Porvenir ".
4. 207. The Committee adjourned its examination of the case at its sessions in November 1971 (see paragraph 4 of its 127th Report) and February 1972 (see paragraph 7 of its 129th Report) since the observations requested from the Government had not been received. The Committee again adjourned its examination of the case at its session in May 1972 (see paragraph 5 of its 131st Report), since the Government's observations had been received too late for the Committee to examine them in substance.
5. 208. Nicaragua has ratified both 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. A. The complainants' allegations

• Allegations Relating to Measures Taken against Two Trade Union Leaders
  209. 209 In a communication dated 10 February 1972, which reached the Office on 16 February 1972, the Government furnished no new information and merely repeated the terms of the reply already examined by the Committee at its May 1971 session.
  210. 210 In a communication dated 4 May 1972, which reached the Office on 17 May 1972, the Government stated that in its opinion it was for the State of Nicaragua alone, in the exercise of its sovereignty, to decide whether or not posters were of a subversive nature. In a communication dated 20 May 1972, received by the Office on 29 May 1972, the Government reaffirmed this viewpoint. In none of these communications did it give any details as to the subject-matter of the incriminating posters.
  211. 211 The Committee considers it desirable to recall that under the terms of Article 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Nicaragua, the law of the land may not be such as to impair, nor may it be so applied as to impair, the exercise of trade union rights. The Government's failure to furnish a detailed reply could be interpreted as leaving room for doubt concerning the observance of this provision by the Government.
  212. 212 In these circumstances the Committee considers it desirable to recall that, within the context of the procedure laid down for the protection of freedom of association, the question whether the grounds for a sentence pronounced relate to a criminal offence of the exercise of trade union rights is not one which can be determined unilaterally by the government concerned, but a matter for the Committee to decide, after it has examined all the information in detail.
  213. 213 In these circumstances, the Committee recommends the Governing Body to request the Government once again to furnish information as soon as possible concerning the subject matter of the incriminating posters.
• Allegations Relating to the Situation in the Firm of " El Porvenir "
  214. 214 In its communication dated 10 February 1972 the Government failed to supply any further information in regard to the situation in the firm of " El Porvenir ".
  215. 215 In a communication dated 4 May 1972 the Government gave an assurance that - contrary to what was alleged in the complaint-the Ministry of Labour had at no time taken sides and that relations between employers and workers in the firm in question were marked by peace and harmony.
  216. 216 In a communication dated 20 May 1972 the Government repeated what it had said in its previous communication. It added, however, that the Ministry of Labour had concerned itself solely with the enforcement of the provisions of the Nicaraguan Labour Code, particularly sections 302 et seq., which govern the procedure to be followed in settling collective disputes of an economic or social nature arising between employers and workers, and sections 222 et seq., which lay down rules for strikes.
  217. 217 These sections define a strike as being lawful when it has been authorised by the competent conciliation board or by a judge, as the case may be. A strike may be authorised only after exhaustion of all the forms of procedure prescribed in the Code in the event of a dispute, namely (1) submission of a statement of demands to the labour inspector; (2) report by the labour inspector to the Ministry of Labour, which appoints a judge to deal with the strike, whose task it is to set up a conciliation board; (3) appearance of the parties before the conciliation board (all strike action being prohibited if the party representing labour fails to appear); (4) if no settlement can be reached in the conciliation attempt, submission of the proposals made by the management side to the employees, who may accept or reject these proposals by a 60 per cent majority vote; (5) a fresh vote, a 60 per cent majority being required, to decide in favour of a renewal of negotiations or strike action. If the employees decide by the necessary majority to go on strike such strike may be authorised by the board, though an appeal may be made against its decision, with suspensory effect, to the Supreme Labour Court, which must give a ruling within 48 hours. When 30 days have elapsed after a strike has been authorised it becomes compulsory for the dispute to be submitted to arbitration, the arbitration award being binding on the parties for at least six months. Any strike commenced without authorisation is to be declared unlawful and legally inexistent, and automatically entails the termination of the contracts of employment of the strikers, without prejudice to other penalties.
  218. 218 In its communication the Government gives no indication, however, of the circumstances which prompted the Ministry of Labour to intervene for the enforcement of the provisions governing collective disputes and strikes to which it refers.
  219. 219 In these circumstances, the Committee wishes to point out that:
       • (a) allegations relating to the right to strike are not outside its competence so far as they concern the exercise of trade union rights;
       • (b) it has already made it clear on earlier occasions, in referring to its recommendation that restrictions on the right to strike should be acceptable if accompanied by conciliation and arbitration procedures, that the recommendation in question refers not to the absolute prohibition of the right to strike but to the restriction of that right in essential services or in the public service, in relation to which the Committee has stated that adequate guarantees should be provided to safeguard the workers' interests;
       • (c) while it takes note of the information contained in the Government's observations concerning the provisions which govern the settlement of collective disputes, the Committee notes that the provisions in question restrict the right to strike for all workers, and not only those in essential services. Being, accordingly, of the opinion that the observations made in the previous subparagraph are applicable to the present case, the Committee wishes to draw the Government's attention to these observations, and it recommends the Governing Body to draw the Government's attention to the importance attached by the Governing Body to these considerations.
  220. 220 In view of the fact that the Government has failed to supply more detailed information as to which provisions of the Labour Code the Ministry of Labour was seeking to enforce at the firm of " El Porvenir ", the Committee recommends the Governing Body to request the Government to furnish this information as soon as possible, and in the meantime to adjourn its examination of this aspect of the case.

The Committee's recommendations

1. 221. With regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) as concerns the allegations relating to measures taken against two trade union leaders:
   • (i) to draw the Government's attention to the observations made in paragraphs 211 and 212 above;
   • (ii) to request the Government once again to furnish information as soon as possible concerning the subject-matter of the incriminating posters;
   • (b) as concerns the allegations relating to military discipline and to the situation in the firm of " El Porvenir "
   • (i) to draw the Government's attention to the observations made in paragraph 219 (a), (b) and (c) above;
   • (ii) to request the Government once again to furnish as soon as possible the information in mentioned paragraph 220;
   • (c) to take note of the present interim report, it being understood that the Committee will submit a further report as soon as it has received the information requested from the Government.