Report in which the committee requests to be kept informed of development - Report No 318, November 1999

Case No 2020 (Nicaragua) - Complaint date: 30-MAR-99 - Closed

Allegations: Dismissals and other anti-union acts; forced entry into union premises and confiscation of property

1. 309. The complaint in the present case is contained in a communication dated 30 March 1999 from the "Enrique Schmidt Cuadra" Federation of Communications and Postal Workers. The Government sent its observations in a communication dated 6 August 1999.
2. 310. 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. The complainant's allegations

1. 311. In its communication of 30 March 1999, the "Enrique Schmidt Cuadra" Federation of Communications and Postal Workers states that on 14 May 1997 it submitted a list of demands to the Ministry of Labour with a view to negotiating a new collective agreement within the Nicaraguan Telecommunications Company (ENITEL). After 16 months of talks, in which two other trade union organizations of the company participated, deadlock was reached by October 1998. The complainant states that on 19 October 1998 it organized a day of protest, which meant convening meetings of workers throughout the country to inform them that talks had reached deadlock, and that when the meetings ended workers were prevented from going back to work. According to the complainant, from this moment onwards there began a campaign of repression and defamation directed against it. Specifically, the complainant alleges the following:
   • -- the dismissal of 367 workers including 58 union officials (according to the complainant, the company took advantage of damage caused by "Hurricane Mitch" to accuse the dismissed workers of causing damage in the company);
   • -- the seizure of union offices in León, Chinandega, Granada and Matagalpa, as well as the confiscation of union documents and other property;
   • -- the use of pressure on workers to force them to leave the union organization;
   • -- the use of pressure in the form of threats of dismissal in order to force workers to relinquish the benefits of the collective agreement and the representation by the complainant.
2. 312. Lastly, the complainant states that there has been no progress in the administrative actions initiated in connection with the allegations and that although five applications have been brought before the courts to secure the reinstatement of the dismissed workers, 312 of the workers affected have been forced on economic grounds to accept the settlements.

B. The Government's reply

1. 313. In its communication of 6 August 1999, the Government states that on 14 May 1997 the "Enrique Schmidt Cuadra" Federation of Communications and Postal Workers, the National Union of Telecommunications and Postal Workers (SINTRATELCO) and the "Eighth of April" Trade Union submitted a list of demands to the district inspectorate for the construction, transport and telecommunications sector with a view to negotiating a collective agreement with the Nicaraguan Telecommunications Company (ENITEL), following an initial meeting on 30 June 1997. The Government states that by 13 October 1998 only four clauses remained to be negotiated. The Government explains that the Labour Code provides for a period of 23 days for negotiating a collective agreement, but that in practice the period is extended, which leads to the parties becoming aggressive in their demands as talks progress and this creates a climate of distrust. Faced with such a situation, the Ministry of Labour started conciliation proceedings with a view to ending the deadlock. The Government indicates that in the present case, after the parties had been called on to continue talks on 20 October 1998, the workers of the "Enrique Schmidt Cuadra" Federation carried out a stoppage in most sections of ENITEL on 19 October 1998. Following these events, the Ministry of Labour called on the parties to continue talks, which are still in progress. The Government states that during the negotiating sessions a group of workers in positions of trust (more than 470) in ENITEL asked to be excluded from the terms of the collective agreement and requested that no trade union body represent them in the talks. The parties to the talks requested the Ministry of Labour to give a ruling on these requests. A ruling was given and two of the three trade union organizations involved in the talks appealed against it; the appeal did not interrupt the talks, the last session of which took place on 1 June 1999. The Government states that the parties to the talks have been using delaying tactics, and that numerous reasons are given for impeding progress in the talks.
2. 314. As regards the allegations concerning the dismissals of workers following the day of protest in the company ENITEL, the Government states that these occurred following a work stoppage during which members of the "Enrique Schmidt Cuadra" Federation abandoned their posts. This stoppage involved actions aimed at disrupting and hindering the company's technical and administrative operations of providing a public telephone service. These actions were accompanied by acts of violence which resulted in damage being done to company vehicles and disrespect being shown to management and to other company workers. Entrances to company premises in Managua and at various branches throughout the country were blocked, thus preventing non-protesting workers and customers from getting in. The Government adds that the workers broke the company's internal regulations and violated the Labour Code and their own contracts of employment, and that for this reason ENITEL sought the cancellation of the employment contracts of workers who had participated in the day of protest. The Government emphasizes that actions which prevent the State from meeting its obligations to provide the basic services listed in article 105 of the Constitution, including communications services, cannot be tolerated.
3. 315. Lastly, the Government states that as regards the allegations concerning the seizure by paramilitary units of trade union premises in León, Chinandega, Granada and Matagalpa and the confiscation of union documents and property, no complaints concerning such allegations have been received by the administrative authorities.

C. The Committee's conclusions

1. 316. The Committee notes that in the present case, the complainant alleges that during talks on a collective agreement in the Nicaraguan Telecommunications Company (ENITEL) which have been in progress for more than two years, it called a day of protest and that from that moment onwards a campaign of repression and defamation against it began. Specifically, the complainant alleges the following: (1) the dismissal of 367 workers including 58 union officials; (2) the seizure of union offices in León, Chinandega, Granada and Matagalpa as well as the confiscation of union papers and other property; (3) the use of pressure to force workers to relinquish union membership; (4) the use of pressure in the form of threats of dismissal in order to force workers to relinquish the benefits of the collective agreement and the representation by the complainant.
2. 317. As regards the allegation concerning the dismissal of 367 ENITEL workers (312 of whom have accepted settlements) including 58 union officials following a day of protest on 19 October 1998, the Committee notes that the versions of events given by the complainant and the Government are mutually contradictory. While the complainant alleges that the dismissals were part of a campaign of anti-union repression which started after the talks on a collective agreement had reached deadlock, and that the authorities took advantage of damage caused by "Hurricane Mitch" to accuse workers of causing damage in the company, the Government maintains that the workers were dismissed for just cause on the grounds that they had withdrawn their labour, thereby breaking the company's internal regulations and violating the provisions of the Labour Code and the Constitution concerning the provision of a basic service, and had caused damage to company equipment.
3. 318. In this regard the Committee recalls that it has already had occasion to state that telephone services may be regarded as essential services in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population, and that it has admitted that the right to strike may be restricted or prohibited in services of this type, but that the workers must have appropriate guarantees to compensate them (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 544, 547 and 533). However, the Committee also recalls that on a number of occasions it has stated that postal services do not constitute essential services in the strict sense of the term (see Digest, op. cit., para. 545). In this context, the Committee considers that the following points must be taken into consideration: (1) the dismissals occurred during collective talks which began more than two years ago and which are still in progress and that, according to the Government, both parties have used delaying tactics; and (2) the dismissed workers have initiated legal action to secure their reinstatement, although no ruling on this has yet been handed down. Under these circumstances, in order to ensure that the parties can conclude the collective agreement in a harmonious working climate, the Committee requests the Government to endeavour to secure the reinstatement of the trade union officials and workers who were dismissed, at least until the courts give a ruling on the matter. The Committee requests the Government to keep it informed in this regard.
4. 319. In this regard, recalling the importance of participation in good faith by both employers and unions, and of their doing all in their power to reach an agreement, and that genuine and constructive talks are necessary for creating and maintaining a relationship of confidence between the parties (see Digest, op. cit., para. 815), the Committee requests the Government to keep it informed of any developments in the collective talks at the company ENITEL.
5. 320. As regards the allegation concerning the seizure of union premises and the confiscation of union papers and other property in León, Chinandega, Granada and Matagalpa by paramilitary units, the Committee notes the Government's statement to the effect that the administrative authorities have received no complaints regarding these allegations. In this regard the Committee stresses that a climate of violence as reflected in attacks by paramilitary units against union premises and property constitutes a serious obstacle to the exercise of trade union rights, and for this reason such acts should be met with severe measures by the authorities, in particular by bringing the persons responsible before the competent judicial authority. To this end the Committee requests the Government to institute an independent investigation into these allegations and, if they are found to be true, to take the necessary measures to ensure that the union premises, papers and other property are returned and to ensure that those responsible are brought before the competent courts. The Committee requests the Government to keep it informed in this regard.
6. 321. As regards the allegation of pressure brought to bear by senior management in the form of threats of dismissal to persuade workers to relinquish the benefits of the collective agreement, the Committee notes the information provided by the Government, according to which: (i) a group of 470 workers in positions of trust asked to be excluded from the terms of the collective agreement and not to be represented by any trade union organization; and (ii) the parties sought a ruling on this from the administrative authority which, in its decision of 7 May 1999, ruled that the workers in question did not have to be covered by the terms of the collective agreement (an appeal against the decision was lodged by two of the three unions involved). In this regard the Committee notes that the Government does not refer to the alleged pressure in the form of threats of dismissal to force workers to relinquish the benefits of the collective agreement and representation by the complainant. The Committee considers that it may be difficult for a worker in a position of trust to provide proof that pressure has been exerted to induce him to relinquish the benefits of a collective agreement or the representation by a trade union organization. Under these circumstances, the Committee requests the Government to take measures to ensure that an independent inquiry is conducted into these allegations and, if the allegations are found to be true, to ensure that the workers in question can choose freely whether or not to be covered by the terms of the collective agreement and represented by a trade union organization. The Committee also requests the Government to keep it informed of the final outcome of the complainant's appeal on the matter.
7. 322. As regards the allegation that workers in the complainant organization were subjected to pressure to force them to leave it, the Committee regrets that the Government has not provided its own observations on the matter. The Committee recalls the importance of Article 2 of Convention No. 98 on the need to provide workers with adequate protection against acts of anti-union discrimination, including acts calculated to force workers to relinquish trade union membership. Under these circumstances, the Committee requests the Government to take measures to ensure that an independent investigation is carried out in this matter and, if the allegations are found to be true, to ensure that appropriate action is taken to ensure that administrative and legal sanctions are applied and to prevent a recurrence of such acts in future. The Committee requests the Government to keep it informed in this regard.

The Committee's recommendations

1. 323. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the dismissals of 367 workers (312 of whom have accepted settlements), including trade union officials at the Nicaraguan Telecommunications Company (ENITEL) the Committee, taking into consideration the contradictory versions given by the complainant and the Government of the events which led to the dismissals, requests the Government to endeavour to secure the reinstatement of the workers, at least until the courts have given a ruling on the matter. The Committee requests the Government to keep it informed in this regard.
   • (b) The Committee requests the Government to keep it informed of developments in the collective talks at ENITEL.
   • (c) As regards the seizure of trade union premises and confiscation of trade union papers and other property at León, Chinandega, Granada and Matagalpa by paramilitary units, the Committee requests the Government to carry out an independent investigation into these allegations and, if they are found to be true, to take the necessary measures to ensure the immediate return of the premises and property and to ensure that the persons responsible are brought before the competent court. The Committee requests the Government to keep it informed in this regard.
   • (d) As regards the allegation concerning pressure in the form of threats of dismissal to persuade workers to relinquish the benefits of the collective agreement and the representation by the complainant, the Committee requests the Government to take measures to begin an independent inquiry into these allegations and, if they are found to be true, to ensure that these workers in positions of trust can choose freely whether or not to be covered by the collective agreement and be represented by the trade union organization. The Committee also requests the Government to keep it informed of the outcome of the administrative appeal lodged by the complainant in this matter.
   • (e) As regards the allegation concerning the pressure applied to force workers to leave the complainant organization, the Committee requests the Government to take measures to carry out an independent investigation in this regard and, if the allegations are found to be true, to take appropriate steps to apply administrative and legal sanctions and to prevent any future recurrence of such acts. The Committee requests the Government to keep it informed in this regard.