Report in which the committee requests to be kept informed of development - Report No 295, November 1994

Case No 1764 (Nicaragua) - Complaint date: 11-MAR-94 - Closed

1. 450. The complaint is contained in a joint communication from the Trade Union of Workers of "El Redentor" Extra Supermarkets and the "Carlos Fonseca Amador" Service and Trade Federation, dated 11 March 1994. The Government responded in a communication of 27 June 1994.
2. 451. Nicaragua has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 452. The Trade Union of Workers of "El Redentor" Extra Supermarkets and the "Carlos Fonseca Amador" Service and Trade Federation allege in their joint communication of 11 March 1994 that the manager of the Extra Supermarkets company dismissed members of the executive committee of the complainant trade union (Carlos Espinoza and Estrella Baca) without obtaining the necessary "lifting of trade union immunity" (authorization) from the Labour Inspectorate, and that the job security of members is being threatened if they continue their membership in the trade union. The complainants add that the manager of this company has filed a request with the judicial authorities for the dissolution of this trade union.

B. The Government's reply

1. 453. In its communication of 27 June 1994 the Government states that the Ministry of Labour has acted in accordance with the law and in an impartial manner. This is proven, for example, by the fact that the Labour Inspectorate issued a resolution ordering the reinstatement of the trade union leader Mrs. Estrella Baca, who was mentioned in the allegations.
2. 454. The Government adds that, after this action was taken, the management of Extra Supermarkets appealed to the Ministry of Labour, alleging that the trade union did not meet the requirements of the law. The Directorate for Trade Union Associations issued an order to inspect the enterprise's premises in order to ascertain whether the requirements of the Labour Code and the Regulations on Trade Union Associations were fulfilled. The findings of the inspection are contained in a document of 24 February 1994. The inspection found that, of the 29 workers who initially formed the trade union, only 21 active members remained, as four were dismissed (including Carlos Espinoza), one was transferred to another branch of the enterprise and later dismissed, one was dismissed and did not hold an employment contract or appear on the payroll, and two members of the trade union's executive committee resigned from their trade union posts and withdrew their membership. In accordance with the inspection's findings, the Directorate for Trade Union Associations issued an order on 2 March 1994 in which it stated that, as it had noted that the Trade Union of Workers of Extra Supermarkets did not have the minimum number of members required by law (25 members, according to section 189 of the Labour Code) and that two of the posts on its executive committee were vacant, it gave the members 15 days in which to comply with the requirements of the law.
3. 455. The Government reports that the trade union held a general assembly on 16 March of this year with the aim of discussing reforms to the union's by-laws, the approval of new members and of elections to fill vacant posts. This notwithstanding, on 23 March 1994 the Directorate for Trade Union Associations issued an order in which it denied registration of the new executive committee because it did not meet the requirements established by the Labour Code and the Regulations on Trade Union Associations. Later, on 11 April 1994, the Director for Trade Union Associations received an official communication from the deputy labour judge, in which the judge ordered her to discontinue treatment of this case, as the decision as to whether the dissolution of the Trade Union of Workers of "El Redentor" Extra Supermarkets was thereafter to be dealt with by the court. The judgement was handed down on 26 April 1994.
4. 456. The judgement of 26 April 1994, which the Government encloses, specifically mentions the following:
   • That ... this authority (the judge) personally inspected the records of the Directorate for Trade Union Associations of the Ministry of Labour, and found that the Trade Union of Workers of "El Redentor" Extra Supermarkets did not meet the requirements of the Labour Code and the Regulations on Trade Union Associations, that the trade union did not comply with the orders of the Directorate for Trade Union Associations of the Ministry of Labour to fill vacancies on its executive committee, and that the majority of its members, including its general secretary, its secretary of finance and its secretary of women's affairs had resigned, leaving the union leaderless and without members.
   • That the Trade Union of Workers of "El Redentor" Extra Supermarkets had introduced a reform to its by-laws to convert it to an enterprise trade union, but that people who did not work at the enterprise were accepted as workers during this special meeting, thus meaning that the union did not have the majority required under section 189 of the Labour Code.
   • Based on these considerations, and the evidence submitted by the plaintiff, this judge can only order the dissolution of the Trade Union of Workers of "El Redentor" Extra Supermarkets, as it has not met the requirements of the law ...

C. The Committee's conclusions

1. 457. The Committee observes that the complainant organizations in this case allege the dismissal of two trade union leaders from the Trade Union of Workers of "El Redentor" Extra Supermarkets (Mr. Carlos Espinoza and Mrs. Estrella Baca); threats against the job security of members who remain in the union; and the introduction of a legal request to dissolve the union, which was submitted by the manager of the Extra Supermarkets company.
2. 458. The Committee takes note of the information provided by the Government, which states that the union was dissolved by a court as it no longer had the legally required minimum number of members (25), the majority of the members of its executive committee had resigned and it was unable to correct this situation at a special assembly subsequently held by it.
3. 459. In this respect, the Committee must highlight that the Government: (1) has not sent observations on the allegations that the union's members have had their jobs threatened; (2) confirms that six members of the union (including Carlos Espinoza) were dismissed, but does not indicate the reasons for their dismissal, although it does specify that it ordered the reinstatement of another trade union leader (Estrella Baca); (3) does not indicate the reasons for which various members of the executive committee withdrew from the trade union. The Committee also notes that it was not asked by the complainant organization to examine whether or not the minimum number of 25 workers to establish an enterprise union was excessive.
4. 460. In these circumstances, the Committee cannot but conclude that the reduction in the number of union members to below the legal minimum of 25 is the consequence of anti-trade union dismissals or threats. Consequently, the Committee requests the Government to conduct an investigation of the real reasons for the dismissals of trade union leaders and members of the Trade Union of Workers of "El Redentor" Extra Supermarkets and of the reasons for the withdrawal of various trade union leaders from their membership in the union, and, should it be concluded that these were anti-trade union dismissals and that the withdrawal from union membership of trade union leaders resulted from pressure or threats from the employer, to impose the penalties provided by the legislation, to reinstate the dismissed workers in their jobs and permit the dissolved trade union to be reconstituted. The Committee requests the Government to keep it informed in this respect.
5. 461. In general, the Committee refers to the fundamental principle that "no person should be dismissed or prejudiced in his employment by reason of his trade union membership or legitimate trade union activities", and to "the importance of forbidding and penalizing in practice all acts of anti-union discrimination in respect of employment" (see 270th Report, Case No. 1460 (Uruguay), para. 63, and 272nd Report, Case No. 1506 (El Salvador), para. 132).

The Committee's recommendations

1. 462. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to conduct an investigation of the real reasons for the dismissals of trade union leaders and members of the Trade Union of Workers of "El Redentor" Extra Supermarkets, and of the reasons for the withdrawal of various trade union leaders from their membership in the union.
   • (b) If this investigation concludes that these were anti-trade union dismissals, the Committee requests the Government to impose the penalties provided by the legislation, to reinstate the dismissed workers in their jobs and to permit the trade union (which was dissolved for not having the legal minimum number of members) to be reconstituted.
   • (c) The Committee requests the Government to keep it informed in this respect.