Effect given to the recommendations of the committee and the Governing Body - Report No 353, March 2009

Case No 2394 (Nicaragua) - Complaint date: 26-OCT-04 - Closed

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

1. 152. At its November 2007 meeting, the Committee took due note of the Government’s information that, as a result of the judgement issued by the Trade Union Associations Directorate on 21 May 2007, the executive committee of the Trade Union of Employees in Higher Education “Ervin Abarca Jimenes” (SIPRES-UNI, ATD) was registered, and that, on 4 June 2007, the parties were notified. The Committee requested the Government to take the necessary measures to ensure that the union dues were paid over to the trade union in question, and to promote collective bargaining and keep it informed in that respect [see 348th Report, paras 130–132].
2. 153. In a communication of 7 August 2008, the SIPRES-UNI, ATD states that the Trade Union Associations Directorate in June 2008 registered the executive committee in the light of the ruling given by the Civil Chamber of the Supreme Court of Justice, but some weeks ago revoked the registration, citing a judicial order which it claims was issued by the Constitutional Chamber of the Supreme Court to suspend the union’s registration in order to deprive the union of its leadership and render it powerless to exercise its rights, the ruling in question not being subject to further appeal. As regards trade union membership dues, the Labour Affairs Chamber of the Managua Appeals Court, instead of ensuring that the dues in question were paid in accordance with the ruling of the First Civil Affairs Judge, overturned that ruling and disallowed any further appeal. As a result of this, the dues in question have to date still not been paid to the union. As regards the negotiation of a collective agreement, the Ministry of Labour authorities refuse to resume collective bargaining despite a number of requests to do so.
3. 154. In a communication of 2 December 2008, the Government states that this case, since 2000, has resulted in a number of administrative and judicial actions on the part of the two unions in dispute. Both unions have sought recourse to the authorities, which in some cases has led to disputes regarding competence that have had to be resolved by the Constitutional Chamber of the Supreme Court. The most recent of these rulings was given on 30 June 2008 by the Constitutional Chamber. The Trade Union Associations Directorate and the Labour Relations Directorate of the Ministry of Labour were informed in a writ of the following decision resulting from the application for constitutional protection (amparo) (No. 557-07) filed by Mr Silvio Joel Araica Aguilar: “The court considers that: (i) the effect of suspension blocks or suspends the decision claimed by the petitioner to be unconstitutional, which must in consequence not be implemented; (ii) once an order has been given to suspend an official decision, the authorities concerned must refrain from further action of whatever nature to implement that decision, as failure to do so will constitute disregard for the explicit decision of the authority ordering the suspension which has the effect of prohibiting any action by the responsible authorities to carry out the action in question. Consequently this Chamber hereby decides: that in accordance with section 49 of the Act on constitutional protection (amparo) in force, the current Director of Trade Union Associations of the Ministry of Labour, Mr Roberto José Rodríguez Arias, is required to comply with the suspension of the decision issued by Civil Chamber 1 of Managua Appeals Court; and (iii) the registration of the executive board of the Trade Union of Employees in Higher Education “Ervin Abarca Jimenes” (SIPRES-UNI, ATD), comprising the General Secretary, Mr Julio Noel Canales, and other members, is suspended and has no legal force until such time as the Constitutional Chamber give a ruling on the substance of the claim”.
4. 155. This decision by the Constitutional Chamber of the Supreme Court of Justice is of crucial importance for the Ministry of Labour, as it is legally binding. Article 184 of Nicaragua’s Political Constitution states that the following are constitutional laws: the Electoral Act (Ley Electoral), the Emergencies Act (Ley de Emergencia) and the Act regarding constitutional protection (Ley de Amparo). In other words, the Act on constitutional protection has constitutional status and is an integral part of the fundamental framework of Nicaraguan law. Article 188 of the Nicaraguan Constitution stipulates that an application for constitutional protection can be made “against any provision, act or decision and in general against any action or omission by any official, authority or agent thereof, that violates or is intended to violate the rights and guarantees enshrined in the Political Constitution”. According to article 164 of the Political Constitution, it is the function of the Supreme Court of Justice: “… (3) to examine and resolve applications for constitutional protection arising from violations of rights established in the Constitution, in accordance with the Act concerning constitutional protection”. Lastly, article 167 of the Constitution stipulates that “Rulings and decisions of courts and judges must be implemented by the state authorities, organizations and natural or legal persons concerned by them ”
5. 156. Given this legal framework, Ministry of Labour officials are required to implement Supreme Court rulings. It is not within the competence of the state authorities to qualify such rulings; they are required to comply with them or face criminal proceedings for contempt. That means that, according to the ruling in question, no department of the Ministry of Labour may carry out any act that could be interpreted as non-compliance with what has been decided by the Constitutional Chamber of the Supreme Court. The parties to the dispute similarly must comply with what has been ordered by the Constitutional Chamber until such time as the latter has ruled on the substance of the dispute. Lastly the Government indicates that the certification given by the Directorate for Trade Union Associations on 10 June 2008, concerning the SIPRES-UNI, ATD was issued following a recommendation by the ILO’s Committee on Freedom of Association, but also pursuant to the aforementioned ruling of the Constitutional Chamber; the latter is the “final ruling of the Constitutional Chamber, which will rule on the substance of the matter”, and orders a suspension of further action on this case. The Directorate of Trade Union Associations suspended the certification of the executive body in question until such time as the application for constitutional protection could be resolved. The parties concerned have, to their credit, availed themselves of the remedies provided for by national legislation, both administrative and legal.
6. 157. The Committee takes note of this information. It trusts that the judicial authorities will hand down a ruling very soon regarding the registration of the executive board of SIPRESUNI, ATD and that the necessary measures will be taken to ensure that the trade union membership dues are paid to the union in question and to promote collective bargaining. The Committee requests the Government to keep it informed in this regard.