Interim Report - Report No 281, March 1992

Case No 1586 (Nicaragua) - Complaint date: 13-JUN-91 - Closed

1. 420. The Sandinista Workers' Confederation (CST) and the National Union of Workers (UNE) presented a complaint against the Government of Nicaragua alleging the violation of trade union rights in a communication of 13 June 1991. The CST submitted new allegations in communications of 29 October and 12 December 1991, and the UNE submitted additional information in a communication of September 1991. The Public Services International (PSI), in a communication of 3 July 1991, endorsed the complaint. The Government sent its observations in communications of 29 October 1991 and 10 January 1992.
2. 421. Nicaragua has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 422. In its communication of 13 June 1991, the Sandinista Workers' Confederation (CST) and the National Union of Workers (UNE) state that since the new Government headed by Mrs. Violeta Barrios de Chamorro took office, there has been systematic and uninterrupted series of serious violations of international labour standards.
2. 423. The complainant organisations state that within only two weeks of its inauguration, the new Government promulgated Decree No. 8-90, which suspended the Civil Service Act, and ordered the renegotiation of collective agreements in force throughout the country. The complainant organisations add that 3,000 public administration workers were dismissed and that collective agreements were arbitrarily suspended by virtue of this Decree. Likewise, the complainant organisations contend that the Government is insensitive to social issues, has left 46 per cent of the working age population unemployed and has caused deteriorations in basic social services (health and education).
3. 424. In this context, the complainants specifically allege that:
   • (a) the Government has, through the Ministry of Labour, forced the renegotiation of collective agreements, although it has no legal power to do so, after having annulled the collective agreement for the National Social Security and Welfare Institute (INSSBI), and annulled and replaced the collective agreement for the Telecommunications and Postal Service (TELCOR);
   • (b) the Government does not respect legislation regarding strikes, having declared illegal such strikes as have been called. Likewise, there has been police repression against striking workers in the following cases:
     • - The national strike of July 1990. Pro-Government shock troops attacked striking workers, leaving four dead and 49 injured.
     • - The customs workers' strike of 7 March 1991. Police forces attacked striking workers, injuring some and arresting others.
     • - The strike of the workers of Banco Inmobiliaro, of 9 April 1991. The police assaulted the striking workers and seriously wounded seven of them.
     • - The strike of the workers of the Banco Nacional de Desarrollo, of 11 April 1991. The police wounded five workers.
     • - The strike of the workers of the OLOF PALME Convention Centre. Riot police squads assaulted striking workers, injuring 14 of them.
   • (c) the Government has organised, promoted and financed pro-Government trade unions in the Ministry of Health, the INSSBI, the Telecommunications and Postal Service, the Ministry of Education, the National Financial System, and other agencies;
   • (d) under a ministerial resolution of June 1990, the Government banned payroll deductions of trade union dues, even where workers had agreed to such deductions and where agreements to this effect existed between trade unions and employers;
   • (e) all workers and trade union leaders in the international communications department of the Telecommunications and Postal Service, who participated in the second national strike, have been removed, dismissed or transferred from their posts;
   • (f) the three major leaders of the National Social Security Workers' Federation, Messrs. Oscar Vargas, Marvin Sovalbarro and Omar Miranda, were dismissed from the INSSBI for having denounced the personal use of institutional assets and property by the head of this Ministry.
     • In its communication of 20 September 1991, the UNE encloses documents in support of its allegations (first-hand accounts of the dismissal of trade union leaders, notices regarding the reinstatement of workers issued by the Ministry of Labour, etc.).
   • 425. In its communication of 29 October 1991, the CST states that in the first weeks of the month of October, workers in the E. Chamorro enterprise, located in Granada, set up a trade union. Subsequently, over 50 workers were dismissed from the enterprise, including all trade union leaders. The complainants add that on 15 October, while the workers of the enterprise were holding a meeting of solidarity with their dismissed colleagues, they were assaulted by special police forces; a number of workers were arrested and subsequently released. The CST also states that the Ministry of Labour refused to recognise the legal personality of the trade union owing to omissions and formal deficiencies in the minutes and by-laws submitted, in blatant disregard for the procedure provided for by law for the correction of formal deficiencies in documents of this kind. The complainant organisation also indicates that the Government directed the establishment of a supervisory mechanism covering all the Customs Department staff, and in particular union leaders.
4. 426. Lastly, in its communication of 12 December 1991, the CST states that the Government has for several months been conducting an intense and selective campaign of police and military repression against the Confederation's leaders, and has instituted unfounded legal proceedings against Mr. Antonio Somoza Samorio, the General Secretary of the Ramón Salvatierra trade union, which organises workers in the Ingenio Azucarero Germán Pomares Ordoñez enterprise. He is charged with a common law crime (felonious homicide), as a result of events which transpired in connection with a trade union protest at the workplace.

B. The Government's reply

1. 427. In a communication of 29 October 1991, the Government states that the Government for National Reconciliation is based on democratic principles and the respect of human rights, including social and labour rights such as the right to strike, freedom of association, collective bargaining, etc. It adds that the National Workers' Front (FNT), which includes several Sandinista trade unions, is capitalising on the country's economic problems to manipulate the working class, and refers specifically to acts of violence which took place on 22 October, when the Ministry of Labour convened a meeting of the National Minimum Wage Commission (these events had no direct relation to the allegations).
2. 428. In its communication of 10 January 1992 the Government states that the complainants' allegations concerning the infringement of the right to collective bargaining are completely false, since it was not until the third quarter of 1991 that 13 collective agreements and nine wage agreements were negotiated and signed by several independent and Sandinista trade union organisations. It adds that, in accordance with Decree No. 8-90, all collective agreements signed between 25 February and 25 April 1990, in other words, during the period of transition from the Sandinista Government to the National Salvation Government, were revised for the purpose of ensuring that the economic prospects of various enterprises would not be jeopardised by highly onerous agreements whose political aim was to destabilise the country as the new Government assumed power in catastrophic economic conditions.
3. 429. As regards the collective agreement of the National Social Security and Welfare Institute (INSSBI), the Government states that it was signed in the period 25 February to 25 April 1990; in accordance with the ministerial resolution, it was subject to review and subsequently found not to comply with the administrative and legal provisions established in sections 303 and following of the Labour Code; moreover, it was determined that the individual who signed the agreement did not belong to the Conciliation Department, but had merely been appointed as a worker in the Trade Union Associations Department, and that the agreement was never filed with the Inspection Service, as required by law. Nevertheless, the Government points out that the rights acquired by the workers remained in force and are being applied by the Institution. As regards the Postal and Telecommunications Service (TELCOR) agreement, it was, like the INSSBI agreement, reviewed with the consent of several trade unions and the enterprise. The Government points out that the Sandinista trade union participated in several stages of the review, but refused to ratify the conclusions.
4. 430. As regards the right to strike, the Government states that its actions are consistent with the principles of a state of law, where every effort is made to guarantee that the parties to a dispute will find a solution which maintains a fair balance between their respective interests, and that it believes in and supports the right to work, the right to associate freely and the right to strike. The Government states that social agreements as well as bilateral talks between the Government and the opposition party, the Frente Sandinista, have called for a repudiation of violence and the strengthening of dialogue as a way of solving the problems faced by the country, but that the CST, which is affiliated to the FNT, fails to abide by these agreements and follows a policy which seeks to destabilise the Government, a policy of destruction and aggression, and that it is not engaged in the solution of trade union problems but has strictly political objectives.
5. 431. The Government reports that in Nicaragua, under the National Salvation Government, freedom of association is full and unrestricted, and that nothing in the law prevents workers from joining the trade union of their choice. Regarding the ministerial resolution of June 1990, which refers to trade union contributions, the Government adds that this resolution aims at protecting workers by ensuring that compulsory contributions do not undermine freedom of association, while protecting the full freedom of workers to contribute to the trade union of their choice.
6. 432. Lastly, as regards the dismissals of trade unionists Oscar Vargas Ortiz, Omar Miranda Carrión and Marvin Sovalbarro Sandoval, of the INSSBI, the Government states that the Minister of Labour issued a resolution ordering that these workers be reinstated, and that the enterprise complied with this resolution by reinstating them to their previous posts, with the same responsibilities and remuneration.

C. The Committee's conclusions

1. 433. The Committee notes that the allegations presented by the complainant organisations refer to the following questions:
   • (a) the mandatory renegotiation and annulment of collective agreements;
   • (b) the declaration of strikes as illegal and police repression against striking workers;
   • (c) the organisation, promotion and financing of pro-Government trade unions;
   • (d) the ban on trade union check-off; and
   • (e) the dismissal of workers and trade union leaders in several enterprises.
2. 434. As regards the allegations concerning the mandatory renegotiation and annulment of existing collective agreements, the Committee notes that the Government states that the difficult social and economic situation in which the new Government assumed office led it to promulgate Decree No. 8-90, which called for the review of collective agreements signed between 25 February and 25 April 1990, the transitional period between the Sandinista Government and the National Salvation Government, for the purpose of ensuring that the economic prospects of various enterprises would not be jeopardised by highly onerous agreements; this review, however, did not extend to the agreed wage policy. Referring specifically to the collective agreements in the INSSBI and TELCOR, the Government states that both of these agreements were reviewed owing to the fact that they had been signed during the period mentioned in Decree No. 8-90; the INSSBI agreement was annulled because it contained several anomalies, while the TELCOR agreement was modified with the consent of several trade unions, although these modifications were not ratified by the Sandinista trade union. In general, the Committee considers that legislation which requires the renegotiation of agreements in force is contrary to the principles of free and voluntary collective bargaining enshrined in Convention No. 98; nevertheless, the Committee has taken full note of the fact that the circumstances of the case were clearly exceptional and that the agreements subject to renegotiation are those signed in the time of Government transition, and that trade unions were invited to participate in the renegotiation of these collective agreements; likewise, the Committee has taken note of the difficult social and economic situation then facing the country. The Committee considers, nevertheless, that the Government should have endeavoured to ensure that the renegotiation of collective agreements in force resulted from an agreement reached between the parties concerned.
3. 435. As regards the allegation that the Government has not followed legal procedures in declaring strikes illegal, and allegations concerning the illegal repression of striking workers, the Committee notes that the Government has merely stated in a general manner that the actions of Sandinista trade unions aim at strictly political ends, are designed to destabilise the Government, and do not seek solutions to trade union problems; the complainant organisations, for their part, have highlighted the country's difficult economic and social situation. The Committee regrets to note that the Government has not furnished specific information in its reply concerning the reasons which the complainants attribute to the Government for declaring strikes illegal, nor concerning the allegations of police repression in connection with the strikes of July 1990 (which left four dead and 49 injured), the strike of 7 March 1991, the strike of 9 April 1991 (seven persons injured), the strike of 11 April 1991 (five persons injured) and the strike of 18 April 1991 (14 workers injured). The Committee emphasises the seriousness of these allegations and expresses its deep concern. The Committee requests the Government to state whether it has complied with legal procedures, to clarify the specific reasons which led it to declare these strikes illegal and to state whether judicial investigations have been instituted for the purpose of clarifying the facts surrounding the reported death and injury of workers participating in these strikes.
4. 436. As regards the alleged organisation, promotion and financing of pro-Government trade unions, the Committee notes that the complainant organisations mention only the names of state agencies in which these trade unions are alleged to exist, without, however, identifying them by name, nor stating how the Government has promoted or financed them. Therefore, the Committee requests the complainant organisations to provide further information on this aspect of the case.
5. 437. As regards the ministerial resolution which prohibits employers from deducting trade union dues at the source, the Committee requests the Government to supply further information on the situation in the past and at present concerning the deduction of trade union dues at the source, and to indicate the consequences upon the freedom of workers to choose their trade union organisations.
6. 438. As regards the dismissal of workers and trade union leaders in several enterprises, the Committee notes that the Government has replied only to the allegations concerning the INSSBI, by stating that Messrs. Oscar Vargas Ortiz, Omar Miranda Carrión and Marvin Sovalbarro Sandoval have been reinstated to their previous posts, with the same responsibilities and remuneration. The Committee regrets that the Government has not sent information concerning the alleged dismissal of all workers and trade union leaders from the international communications department of the Telecommunications and Postal Service (TELCOR) who participated in the second national strike, and requests the Government to state the reasons for these dismissals. The Committee emphasises the principle according to which no worker should be dismissed or subjected to reprisals on the grounds of his or her trade union activities.
7. 439. As regards the allegation concerning the establishment of machinery for the control of customs workers, especially as regards trade union leaders, and the order which bars trade union meetings, the Committee requests the complainant organisations to supply more specific information and to indicate what type of machinery has been applied.
8. 440. Lastly, the Committee notes that the Government has not sent observations on the allegations concerning the dismissal of 50 workers and trade union leaders from the E. Chamorro enterprise, the violent repression by police forces of the meeting held to demonstrate solidarity with workers who had been dismissed, the refusal to recognise the legal personality of this enterprise's trade union, and the alleged campaign of military and police repression against the trade union leaders of the Sandinista Workers' Confederation (specifically, the legal proceedings against Mr. Antonio Somoza Salorio, General Secretary of the Ramón Salvatierra trade union of the Ingenio Azucarero Germán Pomares Ordoñez enterprise, for an alleged common law crime). The Committee notes that these are recent allegations and requests the Government to reply as soon as possible.

The Committee's recommendations

1. 441. In the light of the foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to state whether there has been compliance with the legal procedures for declaring strikes illegal as regards the strikes mentioned by the complainants, to state the specific reasons for declaring these strikes illegal, and to state whether judicial investigations have been instituted for the purposes of clarifying circumstances surrounding the death and injury of trade unionists participating in the strikes mentioned in the complainants' communications; the Committee emphasises the seriousness of these allegations and expresses its deep concern.
   • (b) The Committee requests the Government to supply further information on the situation in the past and at present concerning the deduction of trade union dues at the source and to indicate the consequences upon the freedom of workers to choose their trade union organisations.
   • (c) The Committee requests the Government to provide information concerning the reasons for the alleged dismissal of all workers and trade union leaders in the international communications department of the Telecommunications and Postal Service (TELCOR), who participated in the second national strike.
   • (d) The Committee requests the Government to send its observations on the recent allegations according to which 50 workers and trade union leaders have been dismissed from the E. Chamorro enterprise, the police repression of the meeting held to show solidarity with the dismissed workers, the refusal to recognise the legal personality of this enterprise trade union, and the campaign of military and police repression against the trade union leaders of the Sandinista Workers' Confederation, specifically as regards the legal proceedings against Mr. Antonio Somoza Samorio.
   • (e) The Committee requests the complainant organisations to state which trade union organisations are alleged to have been organised and financed by the Government, to state on what facts these allegations are based, and to specify in detail the machinery used to control customs administration staff.
   • (f) Whilst noting that the circumstances of the case were clearly exceptional and that trade unions were invited to participate in the renegotiation of the collective agreements in force, the Committee nevertheless considers that the Government should have endeavoured to ensure that the renegotiation resulted from an agreement between the parties concerned.