Definitive Report - Report No 218, November 1982

Case No 1133 (Nicaragua) - Complaint date: 03-MAY-82 - Closed

1. 89. The International Confederation of Free Trade Unions (ICFTU) presented a complaint of violation of trade union rights in Nicaragua in a communication dated 3 May 1982. The Government forwarded its observations on the content of the complaint in a communication of 2 June 1982. The complainant forwarded further information in a communication dated 1 September 1982.
2. 90. Nicaragua has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Fight to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Allegations of the complainant organisation

1. 91. The ICFTU alleges that the Government of National Reconstruction of Nicaragua systematically violates the principles of freedom of association de jure and de facto. Thus, the complainant organisation explains, at the legislative level the Government issued Legislative Decree No. 812 on 10 September 1981 declaring a state of economic and social emergency. The effect of this text is that strikes are considered as a crime against the economic and social security of the nation. Anyone who instigates, promotes or takes part in a strike, a work stoppage or the occupation of a work centre is punishable under section 3(f) by from one to three years' imprisonment. Furthermore, on 22 December 1981, the Government adopted Legislative Decree No. 911 suspending the provisions relating to strikes and work stoppages and concerning machinery for settling economic and social disputes. This Legislative Decree suspends the sections of the Labour Code relating to strikes and "all provisions relating to strikes and work stoppages contained in Acts, regulations, collective agreements, arbitration decisions and internal work rules as long as the Legislative Decree declaring the state of economic and social emergency remains in force".
2. 92. In addition, the complainant organisation explains that, in fact, workers in various branches of activity are allegedly suffering harassment and reprisals. More precisely, according to the ICFTU, the workers of the "Sap Antonio" sugar enterprise, the great majority of whom belonged to the Sandinist Confederation of Workers and who had recently decided to leave it and to join the Confederation of Trade Union Unity (CUS), had allegedly been threatened by the leaders of the Sandinist Confederation and the authorities who, it is alleged, informed them that they must disaffiliate from the CUS unless they wished to be considered as enemies of the revolution and suffer the consequences.
3. 93. Similarly, the drivers of Chinandega, taxi drivers and road hauliers, who held a general meeting to decide on joining one of the three major national trade union confederations, chose the CUS by 400 votes, as against 11 for the Sandinist Confederation and 69 for the Central of Workers of Nicaragua. That allegedly led the authorities to adopt measures of intimidation against the trade union leaders of the CUS, and the General Secretary of that union, it is claimed, was disqualified from driving.
4. 94. Finally, the workers belonging to the Federation of Agricultural Workers of Chinandega were also allegedly harassed merely for having affiliated to the CUS.

B. The Government's reply

1. 95. As regards section 3 of Decree No. 812 which made participation in strikes punishable by imprisonment, the Government points out in its communication of 2 June 1982 that under section 3 of Decree No. 996 of 15 March 1982 issuing a National Emergency Act and published in No. 66 of the Official Gazette of 20 March 1982, Legislative Decree No. 812 declaring a state of economic and social emergency was repealed. In other words, the Government states, when the ICFTU presented its complaint, the Decree in question had no longer been in force for six weeks.
2. 96. Regarding Decree No. 911 concerning the suspension of the provisions relating to strikes and work stoppages and concerning machinery for settling economic and social disputes, the Government admits that the text is still in force, as is Decree No. 955 of 4 February 1982. The Government claims that these texts establish a flexible procedure for settling economic and social disputes on a temporary basis. In fact, the Government explains that in spite of the declaration of the state of national emergency, the decrees concerning collective bargaining continue to be applied without restriction, but without recourse to strikes and using the conciliation and arbitration machinery.
3. 97. Then, generally describing the situation, the Government states that the whole world is aware of the threats to the country and that its enemies, both within and without, have drawn up plans of aggression aiming at gravely endangering economic and social stability by acts of sabotage and other violent actions intended to disturb the peace and to destroy the country's production system and infrastructure. It goes on to say that these plans are being put into effect, as is proved by the destruction of a bridge on the Rio Negro, situated on the road leading to the frontier post of El Guasaule, in the Province of Chinandega, and by the partial destruction of the Ocotal bridge in the Province of Nueva Segovia. Other incidents should also be emphasised, such as the attempts to blow up the national cement factory and the oil refinery in the city of Managua, and the terrorist bomb attacks on an Aeronica aircraft at Mexico City airport and at the Augusto César Sandino airport terminal in Managua.
4. 98. Consequently, the Government explains that it had to impose throughout the country a state of emergency and the suspension of several rights and guarantees conferred by the Constitution contained in Decree No. 52 of 21 August 1979, including the suspension of the right to strike and to stop work; the Government points out that the suspension was temporary. The state of emergency is extended month by month as long as the reasons therefore subsist. At the time of its communication, the Government furnished the texts under the terms of which the state of emergency was extended from 15 May to 15 June 1982. It affirms that it does not intend to breach the international obligations resulting from the ratification of ILO Conventions and reiterates that only serious reasons of state led it to suspend the right to strike on a temporary basis. The junta's policy, it asserts, can rely on the strong and total support of the labour and peasants' organisations and those of the workers in general, apart from that of a certain minority trade union group which is playing the game of the interests of the enemies of Nicaragua's revolutionary process, acting from outside and inside.
5. 99. More specifically, on the complainant's grievance to the effect that workers of the "San Antonio" sugar enterprise who belonged to the Sandinist Confederation of Workers (CST) had allegedly recently decided to leave it and join the Confederation of Trade Union Unity (CUS) and had suffered reprisals by the leaders of the Sandinist Confederation and the authorities, the Government explains that originally (in 195) a union had been founded by 44 workers. Subsequently, in 1959, although the enterprise employed over 4,500 workers, this union had won the membership of 116 workers. According to the Government, the union was affiliated to the official General Confederation of Labour (CGT) and its officers followed a policy of complicity with the arbitrary rule and corruption of the former system. After the triumph of the revolution, the first general meeting of the 4,500 workers at the enterprise swept away the old corrupt trade union leadership. Later, the workers decided to change the name of their union to the "Ronald Altamiro Revolutionary Union of Workers of the San Antonio Sugar Enterprise". However, on 12 February 1981, 354 workers at the enterprise organised a union which, shortly afterwards, consisted of no more than 135 of the highest paid workers at the enterprise. They were not threatened by any government authority; the Ministry of Labour simply refused to register them as they failed to meet the conditions laid down by law, the Government states.
6. 100. Concerning the alleged threats by the Sandinist Confederation of Workers, this is a false charge according to the Government since, with 90 per cent of the workers at the enterprise belonging to it, the Ronald Altamiro Revolutionary Union of Workers, affiliated to the CST, does not need to threaten its rival on the contrary, its policy is the complete freedom of affiliation of the workers. Furthermore, the workers of the San Antonio enterprise have not disaffiliated from the Ronald Altamiro Union and the CST. The Government explains that this tiny trade union of 135 workers continues moreover, to exist and is affiliated to the CUS.
7. 101. As regards the grievance relating to the Drivers' Union of Chinandega (SITRAVOCHI), the Government states, first, that the three largest workers' confederations in terms of numbers of members are, in descending order the Sandinist Confederation of Workers (CST), the Association of Rural Workers (ATC) and the General Confederation of Self-Employed Workers (CGTI) and not the Central of Workers of Nicaragua (CTN) and the Confederation of Trade Union Unity (CUS). The CST embraces 62 per cent of the country's workers, the ATC 23 per cent, the CGTI 4.8 per cent, the CTN 2.6 per cent and the CUS 1.3 per cent. According to the Government, since 1976 SITRAVOCHI has been affiliated to the Federation of Workers of Chinandega (FETRACHI), which is affiliated to the CUS. The election referred to in the complaint was held on 4 December 1981 and only confirmed the continued existence of the union, as shown by the document attached by the Government to its communication.
8. 102. As regards the grievance concerning the disqualification of the General Secretary of SITRAVOCHI from driving, on being consulted by the Government, the Chinandega police stated that he was disqualified from driving after he had been stopped three times for speeding and had been found to be drunk.
9. 103. As regards the grievance concerning the alleged harassment of members of the Federation of Agricultural Workers of Chinandega (FETRACAMCHI), the complaint indicates neither the authorities responsible nor those who, it is alleged, were actually harassed. The Federation in question did not lodge a complaint with the ministry of Labour, with which, however, it keeps up regular correspondence, as can be seen from the documentation attached to the Government's reply.
10. 104. Finally, the Government considers that it has fully demonstrated that the complaint is unfounded. It recalls, further, that trade union organisations in opposition to the revolutionary government, such as the Central of Workers of Nicaragua (CTN), have publicly recognised that the official responsible for associations in the Ministry of Labour recently granted, impartially and conscientiously, legal personality to the Union of Drivers, an opposition trade union, as proved by the press cutting from the newspaper "La Prensa" of 3 February 1982 attached to the Government's communication.

C. The Committee's conclusions

1. 105. The complaint alleges legal and factual restrictions on the exercise of trade union rights by the workers of Nicaragua.
2. 106. With regard to the general suspension of the right to strike and the imposition of a system of compulsory arbitration for settling labour disputes, the Committee, while noting that Decree No. 812 which made participation in illegal strikes punishable by up to three years' imprisonment has been repealed, nevertheless notes that the Government itself admits that the right to strike has been temporarily suspended and that labour disputes must be settled by a flexible procedure, without recourse to strikes, by means of conciliation and arbitration machinery. Since, according to the Government, the suspension of the right to strike and the settlement of disputes by arbitration will last as long as the state of economic emergency is in force, and since this state of emergency is renewed month by month because of acts of violence and sabotage, the Committee recalls, as it has pointed out on numerous occasions, that measures of this type constitute a major restriction on one of the essential means whereby the workers and their organisations can promote and defend their interests and that they should be imposed solely as temporary measures in a situation of acute national crisis.
3. 107. Consequently, the Committee expresses the firm hope that the Government will take measures to restore the right to strike and to lift the provisions concerning compulsory arbitration apart from that in essential services in the strict sense of the term, that is those whose interruption would endanger the existence or well-being of the whole or part of the population. It wishes to draw the attention of the Committee of Experts on the Application of Conventions and Recommendations on this aspect of the case.
4. 108. Concerning the allegations relating to the victimisation of the workers of the "San Antonio" sugar enterprise for wishing to leave the pro-Government Sandinist Confederation in order to establish a union affiliated to the Confederation of Trade Union Unity, the Committee has taken note of the detailed explanations provided by the Government. It notes, however, that even according to the Government 135 persons, comprising, allegedly, the highest paid workers in the enterprise, established a union and that the public authorities refused to register it on the ground that the organisation failed to meet the conditions laid down by law.
5. 109. Generally speaking, the Committee has recalled on several occasions that the principle of freedom of association might remain a dead letter if employers and workers were required to obtain any previous authorisation to enable them to establish an organisation, be it authorisation concerning the formation of the trade union organisation itself, the need to obtain discretionary approval of the constitutional rules of the organisation, or, again, authorisation for taking steps prior to the establishment of the organisation. This does not mean that the founders of an organisation are freed from the duty of observing formalities as to publicity or other similar formalities which may be prescribed by law. However, such requirements must not be such as to be equivalent in practice to previous authorisation, or as to constitute such an obstacle to the establishment of an organisation that they amount in practice to outright prohibition. Even in cases where registration is optional, if such registration confers on the organisation the basic rights enabling it to "further and defend the interests" of its members, the fact that the authority competent to effect the registration has discretionary power to refuse this formality leads to a situation that is not very different from that in cases where previous authorisation is required.
6. 110. In the case in point, the Committee has taken cognisance of the legislation of Nicaragua regarding the establishment of a trade union organisation. It notes that under section 189 of the Labour code, as amended in 1979, a works union can he established only if it comprises the absolute majority of the workers at the work centre. Since, as the Government points out, the Ronald Altamiro Revolutionary Union of Workers of the San Antonio enterprise, affiliated to the Sandinist Confederation of Workers, already represents the interests of the workers in the enterprise, according to the legislation currently in force in Nicaragua, the 135 workers at the San Antonio sugar enterprise who wished to establish a union therefore met with a refusal on the part of the authorities responsible for registration.
7. 111. As was noted by the Committee of Experts on the Application of Conventions and Recommendations in its observations of 1981 and 1982 on Nicaragua's application of Convention No. 87, the present section 189 of the Code, which does not authorise the establishment of a second union in an enterprise, fails to comply with Article 2 of the Convention, ratified by Nicaragua and guaranteeing workers the right to establish and join organisations of their own choosing without previous authorisation. Consequently, the Committee requests the Government, as did the Committee of Experts, to amend its legislation on this matter in order to allow the establishment of more than one union in an enterprise if the workers of such enterprise so wish.
8. 112. Concerning the Union of Drivers of Chinandega (SITRAVOCHI) and the alleged measures of intimidation against the union leaders, including the disqualification of its General Secretary from driving, on the pretext that the union had recently affiliated to the opposition Confederation (CUS), the Committee has noted the explanations provided by the Government. It appears, according to the Government, that SITRAVOCHI's affiliation to the CUS dates from 1976 and that the results of the elections of 4 December 1981 merely confirmed the previous situation. Again, the disqualification of the union's General Secretary from driving was stated to have been, according to the police, for speeding and drunken driving. In these circumstances, the Committee considers that this aspect of the case does not call for further examination.
9. 113. Finally, as regards the allegation of harassment suffered by workers of the Federation of Agricultural Workers of Chinandega for belonging to the Confederation of Trade Union Unity (CUS) in opposition to the Government, the latter states that the complaint indicates neither the authorities responsible for the harassment, nor those who had actually been harassed, and that the above Federation has not lodged a complaint.
10. 114. The complainant organisation consulted on this allegation only states in its communication of 1 September 1982 that it is not in a position to supply further information because of the obvious fears of the members of that Federation. The Committee therefore does not have sufficient information to continue its examination of this aspect of the case.

The Committee's recommendations

1. 115. In these circumstances, the Committee recommends the Governing Body to approve the following conclusions:
   • (a) Concerning the general suspension of the right to strike and the imposition of a compulsory arbitration system to settle labour disputes, the Committee recalls that measures of this type constitute a major restriction on one of the essential means whereby the workers and their organisations can promote and defend their interests, and that they should be imposed solely as temporary measures in a situation of acute national crisis. While noting the Government's statement that these provisions are of a temporary nature, the Committee expresses the firm hope that the Government will take measures to lift these restrictions on the free exercise of freedom of association. It considers it appropriate to draw the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.
   • (b) Concerning the allegation of reprisals against some workers of the "San Antonio" sugar enterprise for wishing to leave the pro-Government Confederation and establish an opposition union, the Committee notes that according to the Government itself the union was not granted registration because it failed to meet the required conditions. The Committee, as well as the Committee of Experts on the Application of Conventions and Recommendations, has noted that the legislation prevents the establishment of more than one trade union in the same enterprise if the workers so wish, contrary to the provisions of Article 2 of Convention No. 87, ratified by Nicaragua. The Committee therefore requests the Government to amend section 189 of the Labour Code on this point to allow the establishment of more than one union in an enterprise if the workers of such enterprise so wish.
   • (c) Concerning the allegation of reprisals against workers of the Federation of Agricultural Workers of Chinandega for having affiliated to the opposition confederation (CUS), in view of the Government's statement that the Federation has not lodged a complaint and in view of the complainant's indications in its communication of 1 September 1982 to the effect that it is not in a position to supply further information because of the fears of the members of the Federation, the Committee does not have sufficient information to pursue its examination of this aspect of the case.
   • (d) Finally, concerning the allegation of harassment of the leaders of the SITRAVOCHI union affiliated to the CUS, and in particular to the disqualification of its General Secretary from driving, the Committee has taken note of the explanations provided by the Government and considers that this aspect of the case does not call for further examination.