Definitive Report - Report No 128, 1972

Case No 662 (Nicaragua) - Complaint date: 16-MAR-71 - Closed

1. 22. The complaint is contained in a communication dated 16 March 1971 addressed direct to the Director-General of the ILO by the World Federation of Trade Unions. The complaint was communicated to the Government for observations by a letter dated 30 March 1971 and these were received in a communication from the Government to the Director-General of the ILO dated 24 May 1971.
2. 23. Nicaragua has ratified 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

1. 24. The complainants state in their communication that they wish to draw attention to the serious violations of trade union rights and freedom by the National Guard and the Ministries of Labour and Education affecting the Federación Sindical de Maestros de Nicaragua (Nicaraguan Teachers' Trade Union Federation), which was founded on 8 March 1947 and registered with the Ministry of Labour. The FSMN, state the complainants, was constituted in accordance with the Labour Code in force at that time, which laid down that " Five trade unions may form themselves into a federation " (section 9). Accordingly, the teachers' unions of Boaco, Chinandega, Jinotaga, Matagalpa and Managua formed the FSMN, which was duly registered.
2. 25. On 20 August 1969, the complainants continue, during a strike of the teaching body, groups of workers were sent under pressure by the National Guard to the " Teachers' House " to evict the teachers but they were quickly driven away by the students and other people who had come to defend the teachers.
3. 26. In October 1969, the complainants add, the authorities froze the funds of the Teachers' Union of Managua (170,000 córdobas) and puppet unions were set up by the Ministries of Labour and Education. There was also direct intervention by these Ministries in the election of the leaders of the teachers' unions and meetings were attended by inspectors of public education, mayors, political leaders and police chiefs.
4. 27. The complainants further state that in December 1970 the Government organised personal visits to all the teachers in order to oblige them to support the Government and td join the puppet unions. Refusal to do so, add the complainants, was likely to entail transfer or dismissal. Previously, on 14 October 1970, the Government, faced with a general stoppage of work by the teaching body at all levels (primary, secondary and university-the latter for 72 hours as a token of solidarity), as well as by the teachers of Catholic schools, had ended the school year six weeks in advance.
5. 28. The complainants state that before the teachers' strike in support of their claims, three members of the executive of the FSMN, namely Mr. Leopoldo Montenegro Lara, Chairman of the union of teachers of Managua, Mr. Juan Alberto Henrique Oporta, press and information secretary of the executive committee of the FSMN, and Mrs. Silvia Villagrasa Gutiérrez, record secretary of the same committee, were imprisoned. These persons were charged with being members of the FSLN (a clandestine organisation opposing the Government by military means). The Security Bureau, after torturing them and eliciting false statements from them, brought them before a judge who, being unable to find any valid charge, acquitted them unconditionally.
6. 29. On 27 November 1970 the Ministry of Education began to dismiss teachers who had taken part in the strike. So far, say the complainants, there have been 160 dismissals, and it is feared that this figure may reach 200.
7. 30. In its reply the Government states that official policy has always been designed to ensure the existence and gradual improvement of the trade union movement and that every facility had been provided for the free exercise of their activities. Certain national trade unions, however, had pursued activities in fields forbidden by law and it was only natural, states the Government, that the State should intervene.
8. 31. The Government continues that the Nicaraguan Teachers' Trade Union Federation has itself admitted that on 20 August 1969 the teaching body was on strike. This, states the Government, implied a flagrant breach of the national legislation and a complete lack of respect for the Basic Charter of Nicaragua and for the criminal laws. The same Federation has been guilty of repeated breaches of the law and of political activities. For example, it has ignored the provisions of section 300 of the Constitution, which provides for the dismissal of persons engaged in a concerted stoppage of work in public services or in services of vital importance to society. The Government adds that this Federation has also been guilty of a breach of section 2 (c) of Decree No. 451 of 18 November 1959, which prohibits the incitement, in any form, of illegal strikes. It has also refused deliberately to conform to the rules governing the announcement of the intention to strike, when a strike is permitted by law, as laid down in section 302 et seq. of the Labour Code. The Government points out that, in accordance with section 227 of the Labour Code, strikes in the public services are forbidden and any disputes between employers and workers must be submitted to the labour courts for a ruling.
9. 32. The Federation, continues the Government, has also been guilty of breaches of the Trade Union Regulations, which require every trade union to supply the labour authorities with information concerning changes in the composition of the executive, membership, etc., of the union and lay down certain regulations regarding federations of unions. In this connection, the Government claims that the Teachers' Trade Union Federation was composed of unions from different departments, thus contravening the provisions of section 43 of the above Regulations, which provides that trade unions from different departments may not form a federation.
10. 33. With regard to the stoppage of work by the teachers, the Government states that the complainant's allegation in this connection is an open confession of a breach of the law. The matter has been submitted to the Supreme Court of Justice, whose verdict is awaited.
11. 34. The Government denies that the funds of the Teachers' Union of Managua were either frozen or seized. The Ministry, adds the Government, supervised the use of the funds in question to ensure against their misuse. This it did in response to a plea from the members of the Teachers' Union. The Union, states the Government, has at all times been free to use these funds and, in any event, it is not true that the funds amounted to 170,000 córdobas as stated by the complainants. In this connection the Government supplies, inter alia, copies of a certificate by the Director of Associations reporting the receipt of a plea from members of the Teachers' Union asking for the funds of the Union to be audited and the decision taken by the Director to this effect, copies of letters sent by the Bank of America to the Director of Associations reporting on the balance of the Union's accounts, and an audit certificate from the auditors of the Ministry of Labour. From the documents it also appears that the Union is not allowed to withdraw any sums from its bank accounts without the authorisation of the Director of Associations.

B. B. The Committee's conclusions

1. 35. The Committee notes that the complaint essentially concerns the action taken by the Government before, during and following a stoppage of work by the teaching body. The main allegations contained in the complaint relate to the imprisonment of certain trade union leaders, the right of the teaching body to proclaim a strike, the status of the Nicaraguan Teachers' Trade Union Federation, the seizure of certain trade union funds by the authorities and acts of interference by the Government in the establishment of new trade unions.
2. 36. The Committee notes that the Government's reply contains no reference to the allegation that three executive members of the Nicaraguan Teachers' Trade Union Federation were imprisoned. The Committee observes, however, that the complainants state that these persons were charged with being members of a clandestine organisation, and no information has been submitted to the Committee to indicate that the charges were in any way related to the trade union activities of these persons. In any event, the Committee notes that, according to the complainants, these persons have been released after having been brought to trial and in these circumstances it considers that this aspect of the complaint does not call for further examination.
3. 37. With regard to the strike action taken by the Nicaraguan Teachers' Trade Union Federation, the Committee notes that the Government takes the view that such a stoppage of work was in breach of the law since it involved a strike in the public services (teachers in government schools). The Committee assumes that the Government's reference to the teachers' non-observance of the normal procedure for initiating strikes can be taken to apply to teachers in Catholic schools.
4. 38. The Committee has taken the view that allegations relating to the right to strike are not outside its competence in so far as they concern the exercise of trade union rights. In the case of public servants, the Committee has taken the view that recognition of the principle of freedom of association does not necessarily imply the right to strike. However, the Committee, in considering a number of cases of national legislation that denies the right to strike to public servants, has stressed the importance that it attaches, when strikes are prohibited or are subject to restrictions in essential services or in the civil service, to the establishment of adequate safeguards to protect the interests of the workers who are thus deprived of an essential means of defending their occupational interests, and it has pointed out that such restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned may participate at every stage, and that the awards given should be in all cases binding on both parties. In the present case the Committee observes that public servants do not have the right to strike, this being specifically prohibited by section 227 of the Labour Code. The same section, however, provides, inter alia, for the hearing and settlement of disputes, in the case of public officials, by labour courts. The Committee, accordingly, does not consider that trade union rights have been infringed in this respect.
5. 39. As regards those teachers who are not in the employment of the State, the right to strike is not precluded, but the legislation provides for conciliation and arbitration procedures which must be exhausted before strike action can be taken (section 302 et seq. of the Labour Code). The Committee has, in a number of cases, recognised that prior notification to the administrative authority and provision for compulsory conciliation and arbitration in industrial disputes before calling a strike are provided for in the laws or regulations of a substantial number of countries and that reasonable provisions of this type cannot be regarded as an infringement of freedom of association. Since, in the present case, the stoppage of work appears to have been declared without the conciliation and arbitration procedures having been exhausted, the Committee also considers that there has been no infringement of freedom of association.
6. 40. With regard to the composition of the Nicaraguan Teachers' Trade Union Federation, the Committee notes that, by virtue of section 43 of the Trade Union Regulations, the establishment of federations by unions in different departments is prohibited. The Committee considers that such a provision constitutes a restriction of the right of workers' organisations to establish federations and Confederations, recognised by Article 5 of Convention No. 87. In this connection the Committee recalls the importance that should be attached to the principle, laid down in Article 2 of Convention No. 87, that workers shall have the right to establish and join organisations of their own choosing, a principle that implies for the organisations themselves the right to establish and join federations and Confederations of their own choosing s (Articles 5 and 6 of the Convention). The Committee therefore considers that the conditions laid down by law for the organisation of federations are incompatible with these standards, which include the right of trade unions to form such federations as they see fit.
7. 41. As regards the allegation that the Ministry of Labour intervened, following a request by members of the Union, to audit and freeze the funds of the Teachers' Union of Managua, the Committee has, in a number of cases, stated that the principles established in Article 3 of Convention No. 87 do not prevent the control of the internal acts of a trade union if those internal acts violate the law; at the same time the law of the land must not be such as to infringe the principles on freedom of association. The Committee has also considered that it is of the greatest importance that, in order to guarantee an impartial and objective procedure, this control should be exercised by the relevant judicial authority, The Committee has also recalled that measures of supervision over the administration of trade unions, even if it is said that they are intended to protect the members of the trade union themselves against mismanagement of their funds, may, in certain cases, entail a danger of interference by the public authorities in the administration of trade unions, and that this interference may be of such a nature as to restrict the rights of organisations or impede the lawful exercise thereof, contrary to Convention No. 87. It may be considered, nevertheless, that there is a certain measure of guarantee against such interference where the official appointed to exercise supervision enjoys some degree of independence of the administrative authorities and where he is himself subject to the control of the judicial authorities. The Committee considers, in the present case, that the measures taken with regard to the funds of the trade union concerned do not conform to these principles. In addition, the Committee notes from the information supplied that the Teachers' Trade Union of Managua is still unable to draw upon its bank accounts without the express authorisation of the Director of Associations of the Ministry of Labour. The Committee considers that such interference by the authorities runs counter to the right of trade unions to organise their administration and activities.
8. 42. The Committee further notes that no information is supplied by the Government in connection with the allegation that the authorities intervened in elections and meetings of teachers' trade unions and that puppet trade unions were set up which teachers were forced to join. In this connection the Committee wishes to emphasise the importance it attaches to the standards set by Article 11 of Convention No. 87, whereby governments are required to take all necessary and appropriate measures to ensure that workers and employers may freely exercise the right to organise, and by Article 3 of Convention No. 87, which provides that the public authorities should refrain from any interference which would restrict the right of workers' organisations to elect their representatives in full freedom.

The Committee's recommendations

1. 43. In all these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) to take note that the trade union leaders Leopoldo Montenegro Lara, Juan Alberto Henrique Oporta and Silvia Villagrasa Gutiérrez were released after having been brought to trial and to decide that this aspect of the case does not call for further examination;
   • (b) with regard to the allegations concerning the right to strike of teachers, to decide, for the reasons indicated in paragraphs 38 and 39 above, that this aspect of the case does not call for further examination;
   • (c) with regard to the composition of the Nicaraguan Teachers' Trade Union Federation, to draw the attention of the Government to the fact that the legislation in force is incompatible with the right of trade unions to establish federations of their own choosing;
   • (d) with regard to the allegation that the Ministry of Labour seized control of the funds of the Teachers' Union of Managua, to draw the Government's attention to the principle that control over the internal acts of a trade union should be exercised by the relevant judicial authority, or by a person who enjoys some degree of independence of the administrative authorities and who is himself subject to the control of the judicial authorities, and to point out that the authorisation still required by the Teachers' Union of Managua to draw on its bank accounts runs counter to the right of trade unions to organise their administration and activities;
   • (e) with regard to the allegation concerning interference by the authorities in the establishment of new unions, to draw the attention of the Government to the provisions of Article 11 of Convention No. 87, and to the principle that the public authorities should refrain from any interference which would restrict the right of workers' organisations to elect their representatives in full freedom; and
   • (f) to invite the Government to revise the legislation concerning trade unions in the light of the above considerations, and to draw the attention of the Committee of Experts on the Application of Conventions and Recommendations to the present case.