Report in which the committee requests to be kept informed of development - Report No 338, November 2005

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

Allegations: The complainant alleges that:

1. (1) the company Hansae Nicaragua S.A. has excluded and continues to exclude the “Idalia Silva” Workers’ Trade Union (STIS) from collective bargaining and concluded a collective agreement with the trade union SDTH, 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; (3) death threats were made against two trade unionists
2. 1100. At its meeting in March 2004, the Committee examined this case and presented an interim report to the Governing Body [see 333rd Report, paras. 788-804, approved by the Governing Body at its 289th Session in March 2004].
3. 1101. The Government sent new observations in a communication dated 17 May 2005.
4. 1102. 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. Previous examination of the case

1. 1103. At its meeting in March 2004, the Committee examined allegations that: (1) the company Hansae Nicaragua S.A. had excluded the “Idalia Silva” Workers’ Trade Union (STIS) from collective bargaining and concluded a collective agreement with the trade union SDTH, 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, had requested the dissolution of STIS, and proceedings were under way in that respect; (3) death threats had been made against two trade unionists. The Committee on that occasion made the following recommendations [see 333rd Report, para. 804]:
2. (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.
3. (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.
4. (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.
5. (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.
6. (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.
7. B. The Government’s reply
8. 1104. In its communication of 17 May 2005, the Government states that the “Idalia Silva” Workers’ Trade Union (STIS) is legally registered under Act of Registration 2704, page 315, volume V, of the Register maintained by the Department of Trade Union Associations. The Government states that the union’s executive body is active in promoting its rights as an organization, and maintains that the Government does not interfere in the internal affairs of unions.
9. 1105. As regards the death threats against trade unionists, the Government states that, under the laws that apply to all Nicaraguans, it is the responsibility of the national police to investigate this kind of offence, and, in accordance with the law, the police referred the case (case file No. 5447-02) to the local criminal court. The Government adds that the complainant has provided no information on this. The Government also states that at all the country’s workplaces, including the export processing zones, the Ministry of Labour promotes a climate conducive to mutual understanding with a view to developing sustained national dialogue and good labour practices – through knowledge of social and labour law – and using the appropriate means provided by tripartism to head off conflicts between different interests and, accordingly, making more frequent use of the available means for resolving labour disputes.
10. 1106. The Government states that it requested information on the complaint from the employer, and that the company Hansae Nicaragua S.A. had given the following information:
11. – As regards the allegation that the company Hansae Nicaragua S.A. has excluded and continues to exclude STIS from collective bargaining and concluded a collective agreement with the trade union SDTH, which has close links to the employer, containing clauses that were damaging to workers, shortly after the establishment of STIS, the company states that its management on 8 July 2002 signed a collective agreement with the executive body of the company union SDTH. It adds that STIS was duly established and submitted the necessary documents on 5 July 2002 to the Department of Trade Union Associations of the Ministry of Labour, which, in accordance with the Regulations on Trade Union Associations and the Labour Code, must take a decision regarding the registration within ten days. As long as the union organization lacks a registration certificate from the Department of Trade Union Associations, it has no legal personality, which prevents it from taking part in any activity such as collective bargaining. For this reason, the company states that, at the time talks on the collective agreement were being conducted, STIS still did not have legal personality (the registration certificate of its executive body was extended on 15 July 2002, seven days after the conclusion of the collective agreement with the Trade Union of Workers of Hansae Nicaragua S.A.). The company states that STIS in the end signed up to the collective agreement concluded with the SDTH, as is shown by the record of the Department of Individual and Collective Conciliation of the Ministry of Labour dated 19 August 2003.
12. – As regards the request to dissolve STIS and the proceedings still pending in relation to this, the company indicates that section 219 of the Labour Code establishes the reasons for which the dissolution of a trade union may be requested and the authorities that are empowered to make such a request. The judicial authorities will give a ruling on the matter, and the company does not interfere in the administration of justice.
13. 1107. Lastly, the Government sends a copy of the new collective agreement concluded between the company Hansae Nicaragua S.A. and the company union SDTH, to which STIS has acceded and which in its view contains no clause detrimental to the interests of the company’s workers.

C. The Committee’s conclusions

1. 1108. As regards the questions still pending (presented in 2003), the Committee notes that the complainant had alleged that: (1) the company Hansae Nicaragua S.A. has excluded and continues to exclude the “Idalia Silva” Workers’ Trade Union (STIS) from collective bargaining and concluded a collective agreement with the SDTH, 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; (3) death threats were made against two trade unionists.
2. 1109. As regards the alleged exclusion by the company Hansae Nicaragua S.A. of STIS from collective bargaining and the conclusion with the union SDTH of a collective agreement containing clauses detrimental to the workers shortly after the establishment of STIS, the Committee notes the statements of the company Hansae Nicaragua S.A. to the effect that: (1) it concluded a collective agreement with the SDTH on 8 July 2002, and that on that date STIS still did not have legal personality and was therefore unable to participate in collective bargaining; and (2) STIS in the end signed up to the collective agreement signed with the SDTH. Under these circumstances, and taking into account the fact that according to the Government STIS has been registered, the Committee will not pursue its examination of these allegations.
3. 1110. As regards the judicial proceedings (initiated by the company and four workers) to annul the registration of the union STIS, the Committee notes that, according to the Government, STIS is legally registered and its executive body is active. The Committee also notes in this connection the statements of the company Hansae Nicaragua S.A., to the effect that: (1) section 219 of the Labour Code specifies the possible reasons for requesting the dissolution of a trade union, and the authorities that may make such a request; (2) the judicial authority will give a ruling on the case and the company does not interfere in the administration of justice. Under these circumstances, the Committee requests the Government to keep it informed of the outcome of the current judicial proceedings initiated on the basis of a request for the dissolution of STIS, and emphasizes that allowing representatives of the company to request the dissolution of a union may give rise to acts of interference by the employer.
4. 1111. As regards the alleged death threats made against trade unionists Marjorie Sequeira and Johana Rodríguez to force them to leave their union, the Committee in its previous examination of the case had noted the Government’s statements to the effect that Marjorie Sequeira made a complaint to the national police, which referred the matter to the judicial authority. The Committee notes that, in the annexes to the complaint, the complainant had included a mediation agreement between the two trade unionists and the two individuals accused of making the death threats, in which the latter undertook to keep away from the trade unionists and not to cause them any problems, and the case was thus closed. The Committee deplored these threats, requested the Government to carry out an investigation and, if the allegations were found to be true, to punish the guilty parties, and to provide protection for the trade unionists in question. In this regard, the Committee notes that, according to the Government, the national police conducted an independent inquiry (case file No. 5447-02) which was handed over to the Third Local Criminal Court. The Committee requests the Government to keep it informed of the measures adopted by the judicial authority following the police inquiry.
5. 1112. Lastly, the Committee recalls that, when it examined this case at its meeting in March 2004, it requested the Government to ensure that all workplaces, especially the export processing zone, were kept free of violence against trade unionists. In this regard, the Committee notes the Government’s statements to the effect that in all the country’s workplaces, including the export processing zones, the Ministry of Labour promotes and seeks to maintain a climate favourable to mutual understanding in order to encourage sustained national dialogue and good national practices.

The Committee's recommendations

1. 1113. In view of the preceding conclusions, the Committee invites the Governing Body to adopt the following recommendations:
   • (a) As regards the judicial proceedings initiated on the basis of a request for the dissolution of the trade union “Idalia Silva” Workers’ Trade Union (STIS), the Committee once again requests the Government to keep it informed of the outcome of these proceedings, and emphasizes that allowing the representatives of a company to request the dissolution of a union may give rise to acts of interference by the employer.
   • (b) As regards the alleged death threats against trade unionists Marjorie Sequeira and Johana Rodríguez, the Committee requests the Government to keep it informed of the measures adopted by the judicial authority following the police inquiry.