Interim Report - Report No 354, June 2009

Case No 2601 (Nicaragua) - Complaint date: 27-SEP-07 - Closed

Allegations: The Confederation of Trade Union Unity (CUS) alleges that trade union officials have been dismissed, as part of a campaign to get rid of trade union organizations that do not agree with the Government; in addition it is alleged that collective agreements are being broken

1. 993. The Committee examined this case at its May–June 2008 session and submitted an interim report to the Governing Body [see 350th Report, paras 1423–1451, approved by the Governing Body at its 302nd Session (June 2008)].
2. 994. The Confederation of Trade Union Unity (CUS) submitted new allegations and additional information in a communication dated 24 February 2009.
3. 995. At its March 2009 session, the Committee observed that, despite the time that had elapsed since the previous examination of the case, it had not received the information that had been requested of the Government. The Committee issued an urgent appeal to the Government drawing its attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it might present a report on the substance of the case at its next meeting if the requested observations had not been received in full and in due time. Accordingly, it urged the Government to send its observations as a matter of urgency [see 353rd Report, para. 10].
4. 996. Since then, the Committee has not received the information requested of the Government concerning this case.
5. 997. 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. 998. At its June 2008 session, the Committee made the following recommendations on the matters that remained pending [see 350th Report, para. 1451]:
   • (a) With regard to the alleged disregard for and suspension of the bilateral agreement reflected in a memorandum signed on 28 March 2005 between workers and the Ministry of Transport and Infrastructure with regard to the recognition by way of a salary adjustment of the equivalent of 80 additional hours per month for all the drivers, the Committee, while noting that the MTI and the trade union organizations concerned agreed to extend the validity of the collective agreement in the MTI, expects that this matter will be the object of future negotiations if it has not been dealt with yet in the current collective agreement.
   • (b) With regard to the alleged dismissal of Mr José David Hernández Calderón, secretary of promotion and advertising of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC) on 4 May 2007, the Committee urges the Government to implement the administrative resolutions and to take the necessary measures without delay to ensure that the dismissed union official is reinstated in his post, with payment of outstanding wages and other benefits. The Committee requests the Government to keep it informed in that regard.
   • (c) With regard to the alleged persecution and harassment in order to later on proceed to the dismissal of Mr González Gutiérrez, finance secretary of the SINATRA-DGTT-MTI, the Committee requests the Government to keep it informed of any legal appeal that the union official, Mr González Gutiérrez, may have presented against the resolution of the General Labour Inspectorate.
   • (d) The Committee requests the Government to provide information on the specific reasons behind the request to cancel the employment contract of the union official, Mr Javier Ruiz Alvarez, and to inform it of the final outcome of the proceedings before the Departmental Labour Inspectorate.
   • (e) The Committee requests the Government to communicate its observations with regard to the following allegations: (i) dismissal, without respect for trade union immunity or legal process, of Mr José María Centeno, leader of the SINATRA-DGTT-MTI on 26 April 2007; (ii) transfer of Mr Marcos Mejía López, a member of the Executive Committee of the Union of Employees of the MIT “Andrés Castro” (SEMTIAC); and (iii) workplace harassment of union official Mr Alvaro Leiva Sánchez, Secretary for Labour Matters of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC) – he was dismissed on 11 May 2007 and reinstated the same day and is currently again at risk of dismissal.

B. The complainant’s new allegations

1. 999. In its communication of 24 February 2009, the CUS alleges that the Ministry of Transport and Infrastructure has not yet complied with the requests to hold a meeting with the trade unions representing all the workers at that Ministry, even though this request has been made since January 2007. The CUS adds that the Government has still not complied with the recommendations made by the Committee on Freedom of Association at its session in May–June 2008 and has not yet complied with many of the clauses of the collective agreement, including with regard to recruitment, dismissal procedures and union facilities (offices, etc.), or the drivers’ bilateral agreement, in particular with regard to the salary adjustment.
2. 1000. The CUS adds that the decision to dismiss union official Alvaro Leiva Sánchez was overturned by the Director of Human Resources in May 2007, on the grounds that it had been an error, but his job is currently again in imminent danger as a result of the preparation of a memorandum which falsely states that it had been necessary to issue warnings to the individual in question, questions the image that he presents of the institution and accuses him, on the basis of pure unsubstantiated speculation, of removing documents from the Assistance Desk Unit; this is clearly a case of harassment. Finally, on 18 September 2008, he was suspended from work.
3. 1001. The CUS also alleges that the union official Ms Perla Corea Zamora started to be subjected to sexual harassment and work pressure from her immediate supervisor, and two months later, on 5 March 2008, not having given in to the demands of her supervisor, she was suspended from work, pending her dismissal; although the Civil Service Appeals Committee stated that the dismissal was not appropriate and ordered that her rights be restored, the Ministry has appealed to a court against this decision; the unionist in question has filed amparo proceedings (protection of constitutional rights).
4. 1002. According to the allegations, the Ministry of Transport has illegally suspended the duties of trade union official Mr Javier Ruiz Alvarez (this allegation was discussed in the previous examination of the case); although it is clear – according to the complainant organization in its latest communication – that he was absent from work due to illness, a claim that is substantiated by an official certificate, the Ministry of Transport refuses to take into account the decision of the Labour Inspectorate in favour of this unionist. Likewise, it is alleged that after dismissing union official Mr Guillermo Rafael González, the Ministry wants to liquidate his benefits without taking into account the fact that the injured party has filed amparo proceedings before the Supreme Court of Justice.
5. 1003. According to the allegations, the Ministry has transferred unionist Ms Tania Castillo Centeno, in violation of the legal procedural rules.
6. 1004. Furthermore, it is alleged that in the context of a special hearing, without legal grounds, the trade union official Ms Yerigel Zúñiga Izaguirre was suspended from work and subsequently dismissed. This dismissal decision was suspended pending an appeal, which the Ministry refuses to accept.
7. 1005. The complainant organization indicates that, in early January 2008, the unions exercised their right to strike on the grounds of the violation of the current collective agreement, and that the Ministry of Labour ruled that the union complaint was admissible (a decision which was ignored by the Ministry of Transport). Later, the Ministry of Labour – under the guidance of the Executive Branch – declared the strike illegal and arbitrary on 7 January 2008. The unions filed amparo proceedings.
8. 1006. According to the allegations, on 24 July 2007, union member Nelson Antonio Martínez was illegally suspended from work for allegedly committing gross misconduct for having participated in a protest by workers in January 2008 against the Ministry of Transport’s failure to comply with the collective agreement. The Civil Service Appeals Committee declared the disciplinary proceedings invalid, but nevertheless the Ministry did not comply with this decision, and the injured party had to file an appeal, which was found to be admissible; nevertheless, the Ministry has not complied with this legal decision.
9. 1007. According to the allegations, the Ministry of Transport has suspended union officials Mr Freddy Antonio Velázquez Luna, Mr José Boanerges Cruz Berrios, Mr Byron Antonio Tercero Ramos and Mr Francisco Zamora Viva from work (with a request to cancel their employment contracts) for opposing the construction of a concrete wall blocking the emergency exits in the western part of the Ministry; furthermore, it reported them to the police for allegedly causing criminal damage; in fact, blocking the exits put the lives and safety of workers at risk. The injured parties have lodged an appeal which resulted in the charges being set aside and the Civil Service Appeals Committee declared the acts of the Ministry of Transport to be invalid. However, the Ministry has not complied with the aforementioned decisions.
10. 1008. Finally, the complainant organization points out that, on the basis of a report by the Labour Inspectorate dated 17 September 2008 indicating that the Ministry of Transport complies with only 13 per cent of the collective agreement, union official Mr Alvaro Leiva Sánchez has filed a criminal complaint with the Office of the Public Prosecutor against the Minister of Transport and other senior officials at the Ministry for the crimes of “abuse of authority” and “disobedience by a public servant to official authority”.

C. The Committee’s conclusions

1. 1009. The Committee regrets that, despite the time that has elapsed, the Government has not sent the requested observations, although it has been invited on several occasions, including by means of an urgent appeal, to present its observations on the case.
2. 1010. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 1011. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom, in law and in practice. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments, on their side, must recognize the importance of formulating, so as to allow objective examination, detailed replies to the allegations brought against them.
4. 1012. The Committee urges the Government to be more cooperative in the future with regard to the Committee’s procedural rules especially in the present case as the complainant organization has submitted a long list of allegations concerning violations of trade union rights, the importance of which is unquestionable.
5. 1013. The Committee observes that, in the present case, the complainant had alleged that with a view to destroying and getting rid of the trade unions that are not in agreement with the ideas of the present Government, trade union officials have been dismissed and collective agreements or accords are being broken. Specifically, the complainant alleged: (i) disregard for and suspension of the bilateral agreement reflected in a memorandum signed on 28 March 2005 between the authorities and workers at the Ministry of Transport and Infrastructure (MTI) regarding the recognition by way of a salary adjustment, the equivalent of 80 extra hours per month for all the drivers; (ii) violation of numerous clauses of the current collective agreement by the MTI (regarding among other things the use of vehicles assigned to the trade unions on weekends, the use of the premises by the General Secretary of the Independent Trade Union of the MTI and of the auditorium used by this trade union for holding its meetings, etc.); (iii) dismissals, without respect for trade union immunity or legal process, of José María Centeno, leader of the SINATRA-DGTT-MTI on 26 April 2007, and of José David Hernández Calderón, secretary of promotion and advertising of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC) on 4 May 2007; (iv) workplace harassment of union official Mr Alvaro Leiva Sánchez, Secretary for Labour Matters of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC) – he was dismissed on 11 May 2007 and reinstated the same day and is currently again at risk of dismissal; (v) the transfer of Mr Marcos Mejía López, a member of the Executive Committee of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC); (vi) suspension from work of Mr Javier Ruiz Alvarez, publications and press secretary of the Independent Union of Workers of the MTI; and (vii) persecution and harassment in order later on to proceed to the dismissal of Mr González Gutiérrez, finance secretary of the SINATRA-DGTT-MTI.
6. 1014. The Committee notes the new allegations of the complainant organization, indicating that the Government has ignored the Committee’s recommendations and that the authorities of the Ministry of Transport continue to violate the terms of the collective agreement (87 per cent of the clauses, according to the labour inspectorate) and ignore the judicial and administrative decisions in favour of the union officials and members. In its new allegations, the complainant organization refers to cases concerning the suspension and dismissal of union officials and unionists and to the Ministry of Labour’s refusal to comply with administrative or judicial decisions in favour of those unionists. According to the allegations, the Minister of Transport continues to refuse to accept the leaders of the unions that operate in the Ministry. The Committee urges the Government to send without delay detailed observations on these new allegations by the complainant organization, also including copies of the administrative and judicial decisions concerning the different allegations.
7. 1015. In the absence of observations by the Government on the recommendations made by the Committee during its previous examination of the case, and bearing in mind the new allegations, the Committee notes a serious deterioration in industrial relations at the Ministry of Transport, a negative attitude towards dialogue among the authorities in the Ministry of Transport, a significant number of acts of anti-union discrimination and an unwillingness among the authorities of the Ministry to comply with the terms of the collective agreement.
8. 1016. The Committee urges the Government to promote dialogue and negotiation between the Ministry of Transport and the trade unions to overcome the various problems raised in this case – including compliance with the current collective agreement and the bipartite agreement on wage adjustment. The Committee requests the Government to keep it informed in this regard. In these circumstances, the Committee considers it necessary to conduct an independent investigation into the allegations that should cover – with particular attention – the alleged failure by the Ministry of Transport to comply with judicial and administrative decisions and judgements in favour of the unionists. The Committee requests the Government to keep it informed in this regard. The Committee emphasizes that excessive litigation in labour matters is in the interests neither of the employer nor of the union.
9. 1017. Finally, in the absence of any reply from the Government concerning the recommendations it made in May–June 2008, the Committee reiterates the recommendations it made at that time.

The Committee's recommendations

1. 1018. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee stresses the importance of the allegations and regrets that the Government has not sent its observations on this case despite having been invited to do so on several occasions and despite an urgent appeal in that respect; the Committee urges the Government to be more cooperative in the future with regard to its procedural rules.
   • (b) The Committee urges the Government to promote dialogue and negotiation between the Ministry of Transport and the trade unions in order to overcome the various problems that have been raised in this case – including with regard to compliance with the current collective agreement and the bipartite agreement on wage adjustment. The Committee requests the Government to keep it informed in this regard. In these circumstances, the Committee considers it necessary to conduct an independent investigation into the allegations that should cover – with particular attention – the alleged failure by the Ministry of Transport to comply with the judicial and administrative decisions and judgements in favour of the unionists.
   • (c) The Committee urges the Government to send without delay detailed observations on the new allegations by the complainant organization, also including copies of the administrative and judicial decisions concerning the different allegations.
   • (d) Finally, in the absence of any reply from the Government concerning the recommendations it made in May–June 2008, the Committee reiterates the recommendations it made at that time:
     • – With regard to the alleged disregard for and suspension of the bilateral agreement reflected in a memorandum signed on 28 March 2005 between workers and the Ministry of Transport and Infrastructure with regard to the recognition by way of a salary adjustment of the equivalent of 80 additional hours per month for all the drivers, the Committee, while noting that the MTI and the trade union organizations concerned agreed to extend the validity of the collective agreement in the MTI, expects that this matter will be the object of future negotiations if it has not been dealt with yet in the current collective agreement.
     • – With regard to the alleged dismissal of Mr José David Hernández Calderón, secretary of promotion and advertising of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC) on 4 May 2007, the Committee urges the Government to implement the administrative resolutions and to take the necessary measures without delay to ensure that the dismissed union official is reinstated in his post, with payment of outstanding wages and other benefits. The Committee requests the Government to keep it informed in that regard.
     • – With regard to the alleged persecution and harassment in order to later on proceed to the dismissal of Mr González Gutiérrez, finance secretary of the SINATRA-DGTT-MTI, the Committee requests the Government to keep it informed of any legal appeal that the union official, Mr González Gutiérrez, may have presented against the resolution of the General Labour Inspectorate.
     • – The Committee requests the Government to provide information on the specific reasons behind the request to cancel the employment contract of the union official, Mr Javier Ruiz Alvarez, and to inform it of the final outcome of the proceedings before the Departmental Labour Inspectorate.
     • – The Committee requests the Government to communicate its observations with regard to the following allegations: (i) dismissal, without respect for trade union immunity or legal process, of Mr José María Centeno, leader of the SINATRA-DGTT-MTI on 26 April 2007; (ii) transfer of Mr Marcos Mejía López, a member of the Executive Committee of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC); and (iii) workplace harassment of union official Mr Alvaro Leiva Sánchez, Secretary for Labour Matters of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC) – he was dismissed on 11 May and reinstated the same day and is currently again at risk of dismissal.