Report in which the committee requests to be kept informed of development - Report No 330, March 2003

Case No 2206 (Nicaragua) - Complaint date: 30-MAY-02 - Closed

Allegations: The complainant organization alleges that the check-off of its members’ trade union contributions has been suspended in violation of national legislation, and that trade union officials have been dismissed from the Supreme Electoral Council.

1. 909. The complaint is set out in a communication from the National Union of Employees (UNE) General Confederation dated 30 May 2002. This organization sent further information in the communication of 27 June 2002. The Public Services International (PSI) supported the complaint made by the UNE in the communications dated 13 June and 8 July 2002. The Government sent its observations in communications of 20 September 2002 and 14 January 2003.
2. 910. 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. 911. In its communication of 30 May 2002, the National Union of Employees (UNE) General Confederation alleges that following a decision made public by the former President of the Republic on 26 February 2001, the Government suspended the check-off of the trade union contributions of UNE members as provided for in current collective agreements and section 224 of the Labour Code, according to which “employers must deduct the ordinary and extraordinary contributions established by the trade union according to its statutes from the salaries of workers who are affiliated to the trade union and give their voluntary authorization”. On the basis of this, the UNE filed a petition before the Appeals Court of the Circumscription of Managua on 21 March 2001. In the text of the petition and that of the Court’s decision to grant the admissibility of the petition, it is specified that the question relates to statements made by the President and “the threat to prohibit and eliminate the deductions made by trade unions from their members as trade union contributions from the state payroll through a presidential agreement”. This situation is financially “asphyxiating” trade unions.
2. 912. In its communication of 27 June 2002, the UNE makes allegations concerning the dismissal in April 2001 of Mr. Edgard Marenco Torres and Mr. Eduardo José Lacayo Castillo, officials from the Trade Union of Workers of the Supreme Electoral Council (SITRACSE). Neither official has been reinstated in his job by the Supreme Electoral Council authorities despite administrative resolutions requesting their reinstatement which date back to May 2002.

B. The Government’s reply

1. 913. In its communications of 20 September 2002 and 14 January 2003, the Government states that the complainant organization indeed filed a petition of amparo (enforcement of constitutional rights) relating to the deduction of trade union contributions from workers, and that the only action to be taken is to wait for the verdict of the judicial authority.
2. 914. As regards the dismissal of Mr. Edgard Marenco Torres and Mr. Eduardo José Lacayo Castillo, the Government states that two petitions have been made relating to this case, the first being through administrative action before the Ministry of Labour, and the second through legal action before the labour courts. The two people concerned submitted a document to the Departmental Labour Inspectorate for the Services Sector of Managua denouncing their dismissal by the employer, the Supreme Electoral Council (CSE), through the CSE General Division of Human Resources and Training – with allegations, inter alia, that the procedures established in section 231 of the Labour Code had been violated. Subsequently, the abovementioned Inspectorate confirmed that the cancellation of the employment contracts of Mr. Marenco Torres and Mr. Lacayo Castillo violated the procedures established in sections 48 and 231 of the Labour Code. The Directorate of Trade Union Associations of the Ministry of Labour issued a statement that both persons in question enjoyed the trade union immunity established in the Labour Code. The Inspectorate subsequently decided to cancel the dismissals and issued a warning that one working day after receiving notification, the employer had to reinstate the workers in question in their previous jobs and with the original salaries. Furthermore, the employer – the CSE – had to respect the resolution of the Departmental Labour Inspectorate in time and form; this was not the case. Since the resolution was not appealed, it remained in force. Following these events, the persons in question presented their case through legal action before the First Labour Court, requesting their effective reinstatement and the payment of lost earnings, thereby opening the respective judicial proceedings. The Labour Court judge issued a resolution ordering their reinstatement and requesting a writ of execution of the sentence given in their favour. It is now up to the parties to institute all necessary proceedings to have the sentence applied.

C. The Committee’s conclusions

1. 915. As regards the allegation concerning the suspension of the check-off of the trade union contributions of UNE members in violation of national legislation, the Committee notes that the Government states that this issue has been referred to the judicial authority, and that the only action to be taken is to wait for the judicial verdict. The Committee recalls that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 435]. The Committee observes that at its November 2002 meeting it examined another complaint against the Government of Nicaragua for the suspension of the check-off facility [see 329th Report, Case No. 2163, paras. 698 and 706]. The Committee concludes with concern that this problem affects several trade union organizations and expresses the hope that the judicial authority will take the aforementioned principle fully into account when formulating its ruling. The Committee requests the Government to send the text of the ruling handed down in this regard.
2. 916. As regards the dismissal of the trade union officials, Mr. Edgard Marenco Torres and Mr. Eduardo José Lacayo Castillo from the Supreme Electoral Council, the Committee notes with interest that, according to the Government, both the administrative authority and the judicial authority confirmed that their dismissal violated national legislation and ordered their reinstatement in their jobs. The Committee urges the Government to ensure that both officials are effectively reinstated without loss of pay in their jobs without delay and to keep it informed in this regard.

The Committee's recommendations

1. 917. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the allegation concerning the suspension of the check-off of the trade union contributions of UNE members in violation of national legislation, the Committee expresses the hope that the judicial authority will take the principle according to which “the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided” fully into account when formulating its ruling. The Committee requests the Government to send the text of the ruling handed down in this regard.
   • (b) As regards the dismissal of the trade union officials Mr. Edgard Marenco Torres and Mr. Eduardo José Lacayo Castillo from the Supreme Electoral Council, the Committee urges the Government to ensure that both officials are effectively reinstated without loss of pay in their jobs without delay and to keep it informed in this regard.