Interim Report - Report No 333, March 2004

Case No 2275 (Nicaragua) - Complaint date: 29-MAY-03 - Closed

Allegations: The complainant alleges that: (1) the Hansae de Nicaragua S.A. enterprise excluded and continues to exclude the “Idalia Silva” Workers’ Trade Union (STIS) from collective bargaining and concluded a collective agreement with the (SDTH) trade union, which has close links to the employer, containing clauses that were damaging to workers, shortly after the establishment of STIS; (2) the enterprise, and subsequently four workers and an adviser paid by the enterprise, requested the dissolution of STIS, and proceedings are under way in this respect, which led the Ministry of Labour to refuse to register the reorganization of the STIS executive committee and to suspend the collective bargaining process with STIS; (3) death threats were made against two trade unionists; (4) trade union officers were not involved in the procedure for approving the internal regulations of the enterprise; and (5) a labour inspection was conducted with the participation of only the SDTH trade union

1. 788. The complaint is contained in a communication from the National Federation of “Heroes and Martyrs” Trade Unions of the Textile, Clothing, Leather and Footwear Industry (FNSHM) dated 29 May 2003. This organization sent additional information in the communication of 19 July 2003. The Government sent its observations in a communication of 29 September 2003.
2. 789. 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. 790. In its communications of 29 May and 19 July 2003, the National Federation of “Heroes and Martyrs” Trade Unions of the Textile, Clothing, Leather and Footwear Industry (FNSHM) refers to anti-union practices at the Hansae de Nicaragua S.A. export processing zone enterprise against the “Idalia Silva” Workers’ Trade Union (STIS) (affiliated to the Sandista Workers’ Confederation). More specifically, the complainant alleges that shortly after the establishment of this trade union on 5 July 2002, the enterprise concluded a collective agreement on 8 July 2002 with the Democratic Trade Union of Workers at Hansae de Nicaragua S.A. (SDTH); that this trade union is affiliated to the Autonomous Confederation of Nicaraguan Workers (which is financially supported by the export processing zone enterprises) and has close links to the enterprise; in fact, its executive committee was granted a four-month extension by the Ministry of Labour following the expiry date of its one-year term. According to the complainant, the collective agreement that was concluded contained clauses that were damaging to workers in terms of dismissals and overtime, and negotiations with STIS were put aside; the Ministry of Labour authorized this collective agreement. The enterprise refuses to negotiate with STIS despite having been called to the Ministry of Labour for this purpose.
2. 791. On the other hand, the enterprise, and subsequently four workers and an adviser paid by the enterprise, requested the authorities to dissolve STIS and the corresponding proceedings were initiated. In this context, the Ministry of Labour refused to register the reorganization of the STIS executive committee and suspended the collective bargaining process.
3. 792. The complainant also alleges that trade unionists Ms. Marjorie Sequeira and Ms. Johana Rodríguez filed a complaint on 22 August 2002 with the state police and the competent court regarding death threats issued by persons linked to the enterprise’s administration (the plant manager and a former employee) who attempted to make them leave STIS.
4. 793. Furthermore, the Ministry of Labour approved the internal regulations of the enterprise on 19 August 2002 without taking into account the involvement of trade union officers or workers. In March 2003, the Labour Inspectorate conducted an inspection which involved only the SDTH which has close links with the employer.

B. The Government’s reply

1. 794. In its communication of 29 September 2003, the Government refers to two requests to cancel the registration of the “Idalia Silva” Workers’ Trade Union (STIS) and its executive committee; the Ministry of Labour stated that it was incompetent to deal with these requests and ordered the file on this case to be closed. The Government indicates that when STIS requested the registration of the reorganization of its executive committee on 21 October 2002, the Directorate for Trade Union Associations rejected the request owing to the legal proceedings under way against STIS (relating to the cancellation of the registration of the trade union and its committee). On 28 October, the appeal against this decision was rejected, but, following a new appeal, the Directorate for Trade Union Associations notified STIS on 13 January 2003 that the registration of the committee’s new structure had been processed.
2. 795. The Government states that, contrary to the allegations, the Directorate for Trade Union Associations only extended the SDTH executive committee for a period of one month (from 10 July to 9 August 2002), and that this had been at the request of the trade union.
3. 796. As regards the alleged death threats against STIS officers at the Hansae de Nicaragua S.A. enterprise, the Government states that Ms. Marjorie Sequeira filed a complaint with the state police in district No. 6 against Mr. César Jarquín Reyes and Mr. Orlando Vallecillo for having issued death threats. On 3 September 2002, the case was referred to the Third Local Criminal Court of Managua.
4. 797. With reference to the signing of the internal regulations without the involvement of STIS officers, the Government indicates that Hansae de Nicaragua S.A. enterprise submitted a draft of the disciplinary internal regulations to the Labour Inspectorate for them to be duly revised and approved. The Inspectorate subsequently issued a document to inform workers that they had 72 hours to put forward any comments they saw fit on the draft internal regulations submitted by the employer. This was also notified to the General Secretary of SDTH who appeared and provided the trade union’s comments. Once the draft had been revised and corrected accordingly, the Inspectorate proceeded to authorize the internal regulations on 18 August 2002. The STIS was not notified of the draft because this trade union had still not been established.
5. 798. The Government rejects the allegation that STIS was excluded from the comprehensive labour inspection conducted at the enterprise in March 2003. In fact, the document containing the observed infractions and the corrective measures to be taken within specific deadlines was signed by the General Secretary of STIS and by a representative of the other trade union (SDTH).

C. The Committee’s conclusions

1. 799. The Committee observes that in the present case the complainant alleges that: (1) the Hansae de Nicaragua S.A. enterprise excluded and continues to exclude the “Idalia Silva” Workers’ Trade Union (STIS) from collective bargaining and concluded a collective agreement with the SDTH trade union, which has close links to the employer, containing clauses that were damaging to workers, shortly after the establishment of STIS; (2) the enterprise, and subsequently four workers and an adviser paid by the enterprise, requested the dissolution of STIS, and proceedings are under way in this respect, which led the Ministry of Labour to refuse to register the reorganization of the STIS executive committee and to suspend the collective bargaining process with STIS; (3) death threats were made against two trade unionists; (4) trade union officers were not involved in the procedure for approving the internal regulations of the enterprise; and (5) a labour inspection was conducted with the participation of only the SDTH trade union. The Committee considered that information was lacking on this case. In particular, the Committee requests the Government to approach the employers’ organizations concerned by the questions at issue, with a view to having at its disposal the views of the enterprise concerned.
2. 800. Regarding the allegation that a collective agreement was concluded, without the involvement of STIS, containing clauses that were damaging to workers, with a trade union that has close links to the employer, the Committee observes that the complainant has not sent a signed copy of the collective agreement, and that the Committee is unable to assess the clauses contained in this agreement. Furthermore, the annexes provided by the complainant clearly show that STIS requested the possibility of bargaining jointly with the other trade union. Furthermore, it emerges from the documentation sent by the complainant that legislation allows for the signing of a second collective agreement with STIS, and that the other trade union has made various demands similar to those of STIS. Under these circumstances, the Committee requests the Government to send a copy of the collective agreement in question, so as to be able to pronounce itself in this respect.
3. 801. With reference to the request made by the enterprise, and subsequently by four workers, for the dissolution of STIS, the Committee notes that the Government confirms that this issue (the cancellation of the trade union’s registration) was submitted to the judicial authority, observes that STIS is still operational, and requests the Government to send the rulings handed down in the two proceedings under way. The Committee regrets that the administrative authority used this situation to refuse to register the reorganization of the STIS executive committee for several months (as emerges from the allegations and the Government’s statements) and (according to the complainant) to suspend the collective bargaining process initiated by STIS. Nonetheless, the Committee observes that, following a second appeal, the reorganization of the STIS executive committee was registered. The Committee regrets the delay in registration of the executive committee due to an initial refusal and requests the Government to refrain from interfering in trade union affairs in the future.
4. 802. As regards the alleged death threats against trade unionists Ms. Marjorie Sequeira and Ms. Johana Rodríguez so that they would leave the trade union, the Committee notes the Government’s statements, according to which Ms. Marjorie Sequeira filed a complaint with the national police, which referred the complaint to the judicial authority. Furthermore, the Committee observes that the annexes of the complaint include a mediation agreement between the two trade unionists and the two persons accused of issuing the threats. In this agreement the latter agrees that they will not visit the trade unionists in question or cause them any future problems, thereby bringing the case to a close. It requests the Government to take the necessary measures to institute an independent investigation in this respect and, if the allegations are found to be true, to punish the guilty parties and immediately provide adequate protection to the trade unionists in question. The Committee condemns these threats and requests the Government to ensure that all workplaces and especially the export processing zone remain free from violent acts against trade unionists.
5. 803. Lastly, the Committee notes the Government’s statements rejecting the idea that STIS was excluded from the labour inspection conducted at the enterprise in March 2003, and points out that the General Secretary of this trade union signed the inspection document. Furthermore, the Committee notes that STIS could not have been consulted (as was not the case with SDTH) when drawing up the internal regulations of the enterprise, since at this point in time it had still not been established.

The Committee's recommendations

1. 804. In the light of its foregoing interim conclusions, the Committee requests the Governing Body to approve the following recommendations:
   • (a) The Committee considered that information was lacking on this case. In particular, the Committee requests the Government to approach the employers’ organizations concerned by the questions at issue, with a view to having at its disposal the views of the enterprise concerned.
   • (b) The Committee requests the Government to keep it informed of the outcome of the two proceedings under way in which the cancellation of the registration of STIS was requested. Moreover the Committee regrets the delay in the registration of the STIS executive committee due to an initial refusal and requests the Government to refrain from interfering in trade union affairs in the future.
   • (c) The Committee condemns the death threats against trade unionists Ms. Marjorie Sequeira and Ms. Johana Rodríguez and requests the Government to take the necessary measures to institute an independent investigation in this respect and, if the allegations are found to be true, to punish the guilty parties and immediately provide adequate protection to the trade unionists in question.
   • (d) The Committee requests the Government to ensure that all workplaces and especially the export processing zone remain free from violent acts against trade unionists.
   • (e) With regard to allegations that a collective agreement, containing clauses that were damaging to workers, was concluded with a trade union that has close links with the employer, the Committee requests the Government to send a copy of the collective agreement in question so as to be able to pronounce itself in this respect.