Effect given to the recommendations of the committee and the Governing Body - Report No 321, June 2000

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

Effect given to the recommendations of the Committee and the Governing Body

1. 42. The Committee last examined this case, which concerns dismissals and other anti-union measures - seizure of union offices and confiscation of property - at its meeting in November 1999 [see 318th Report, paras. 309-323]. At the time the Committee had made the following recommendations:
   • (a) The Committee requested the Government to endeavour to secure the reinstatement of the 367 dismissed workers, at least until the courts have given a ruling on the matter.
   • (b) The Committee requested the Government to keep it informed of developments in the collective talks at ENITEL.
   • (c) The Committee requested the Government to carry out an independent investigation into the seizure of trade union premises and the confiscation of trade union papers and other property in León, Chinandega, Granada and Matagalpa by paramilitary units and, if these allegations are found to be true, to take the necessary measures to ensure the immediate return of the premises, papers and property to the trade unions concerned and to ensure that the persons responsible are brought before the competent court.
   • (d) The Committee requested the Government to take measures to begin an independent inquiry into the allegations concerning pressure in the form of threats of dismissal to persuade workers to relinquish the benefits of the collective agreement and their representation by the complainant 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.
   • (e) The Committee requested the Government to take measures to carry out an independent investigation into the allegations concerning the pressure applied to force workers to leave the complainant organization 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 requested the Government to keep it informed in this regard.
2. 43. In a communication dated 22 March concerning the reinstatement of the 367 dismissed workers, the Government states that the authorization to dismiss a number of former employees of ENITEL for abandoning their duties on 19 October 1998 was justified. Moreover, the 312 workers who accepted settlements cannot be reinstated as the matter has been resolved once and for all. Regarding the workers who did not accept settlements, on the other hand, the Government cannot determine whether or not their reinstatement is justified, even temporarily, as that would constitute interference by the Executive in matters that come within the purview of Judiciary. Finally, the Government states that the workers and employers reached a satisfactory agreement in the course of the conciliation procedure, wherein the workers negotiated and accepted the conditions of their cessation of work and explicitly notified the judicial authorities that they were abandoning their demand for reinstatement.
3. 44. The Committee regrets that the Government has not interceded on behalf of the dismissed workers and recalls the principle that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 707].
4. 45. The Government further states that ENITEL signed a new collective agreement with the complainant organization and its two other trade union associations on 28 February 2000 (the new trade union executive board took up office on 16 January 1999).
5. 46. The Committee takes note of this information.
6. 47. Regarding the allegations that trade union premises were seized and various trade union papers confiscated, the Government states that there are no paramilitary units in Nicaragua and that no trade union premises were seized.
7. 48. The Committee regrets that the Government has not provided any information on the outcome of the administrative appeal lodged by the complainant organization in this respect or on the findings of the independent investigation into these allegations that had been requested. The Committee therefore recalls that the right of the inviolability of trade union premises also necessarily implies that the public authorities may not insist on entering such premises without prior authorization of their occupants or without having obtained a legal warrant to do so [see Digest, op. cit., para. 175].
8. 49. The Government further gives its assurances that no pressure was exercised on the workers to induce them to relinquish the benefits of the collective agreement with ENITEL and also that no pressure was brought to bear on the workers to force them to leave the complainant organization.
9. 50. The Committee observes that, in its reply, the Government does not provide sufficient information concerning the pressure allegedly brought to bear on the workers to persuade them to relinquish their representation by the complainant organization and to leave it, or to the outcome of the independent inquiry that had been called for into these allegations. It recalls that when examining various cases in which workers who refuse to give up the right to collective negotiation were denied [certain rights], the Committee considered that it raised significant problems of compatibility with the principles of freedom of association, in particular as regards Article 1(2)(b) of Convention No. 98 [see Digest, op. cit., para. 913]. It also emphasizes that workers [...] without distinction whatsoever have the right to establish and [...] to join organizations of their own choosing without previous authorization [see Article 2 of Convention No. 87].
10. 41. El Comité toma nota de esta comunicación.