Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Nicaragua (Ratification: 1967)

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The Committee notes the observations of the International Organisation of Employers (IOE), received on 7 March 2023, in which it expresses deep concern at the ministerial decisions adopted on 3 March 2023 through which the Government arbitrarily and unlawfully annulled the legal personality of the Higher Council for Private Enterprise of Nicaragua (COSEP), the most representative employers’ organization in Nicaragua established three decades ago and a member of the IOE, as well as its 18 affiliated associations. The Committee notes the Government’s indication in its reply, received on 14 March 2023, that: (i) neither COSEP nor the 18 associations are registered in the Directorate of Trade Union Associations of the Ministry of Labour, as COSEP is a non-profit-making organization to which the Ministry of Labour does not grant legal status; and (ii) the IOE’s arguments bear no legal relation to the functions of the ILO. The Committee observes that these issues were examined during the discussion held in the Committee on the Application of Standards of the Conference (hereinafter the Conference Committee) in June 2023 on the application of the Convention by Nicaragua.

The Committee also notes the observations of the IOE received on 1 September 2023, in which it reiterates the comments made to the Conference Committee and indicates that several Employer delegates to the International Labour Conference in 2023 submitted a complaint under article 26 of the ILO Constitution alleging non-compliance by Nicaragua with this Convention, as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The Committee notes that the complaint was declared receivable by the Governing Body at its 349th Session (October 2023) and that its content will be examined by the Governing Body at its session in March 2024.

Follow-up to the conclusions of the Committee on the Application of Standards (International labour Conference, 111th Session, June 202 3 )

The Committee notes the discussion at the Conference Committee at the 111th Session of the Conference (2023) and observes that, after noting with deep concern the persistent climate of intimidation and harassment of independent workers’ and employers’ organizations, and the allegations of the arrest and detention of employer leaders and the further deterioration of the situation, as well as the absence of any progress and cooperation on the part of the Government since last year, the Conference Committee urged the Government to:

• ensure that workers and employers can establish their own organizations and operate without interference, including the COSEP;
• immediately cease all acts of violence, threats, persecution, stigmatization, intimidation or any other form of aggression against individuals or organizations in connection with both the exercise of legitimate trade union activities and the activities of employers’ organizations, including COSEP, and adopt measures to ensure that such acts are not repeated including the return of the Nicaraguan nationality of those who have been deprived of it for this reason;
• immediately release any employer or trade union member who may be imprisoned in connection with the exercise of the legitimate activities of their organizations and provide information on all the measures taken in that regard;
• promote social dialogue without further delay through the establishment of a tripartite dialogue round table under the auspices of the ILO, that is presided over by an independent chairperson who has the trust of all sectors, that duly respects the representativeness of employers’ and workers’ organizations in its composition and that meets periodically, as recommended by the Committee in 2022;
• repeal Act No. 1040 on the regulation of foreign agents, the Special Act on Cybercrimes and Act No. 1055 on the defence of the rights of the people to independence, sovereignty and self-determination for peace, which limit the exercise of freedom of association and freedom of expression.

The Conference Committee also urged the Government to avail itself of ILO technical assistance to ensure full compliance with its obligations under the Convention in law and practice.

The Committee notes that the Government refers in its report to the recommendations made by the Conference Committee and indicates that it has consulted the most representative social partners in the country in this regard. The Government claims that full freedom of association exists in the country without any type of discrimination, that there are no trade union leaders who have been deprived of their freedom for exercising the right to organize or engaging in trade union activities, that there are no restrictions on the right to organize and that there is no trade union persecution or repression. The Government adds that it is continuing to take initiatives in support of the right to organize and emphasizes that, although there is full freedom to organize in the country and there is no persecution of different ideas or views, there are legal provisions in the country that have to be complied with. The Government reiterates that since 2007 it has been working to ensure the restoration and protection of the labour rights of workers through tripartite dialogue and consensus as the principal means of achieving labour stability and peace.

While taking due note of the above indications, the Committee observes with deep concern that the Government does not indicate in its report that it has taken any action to give effect to the recommendations made by the Conference Committee in 2022 and 2023. The Committee also deeplyregrets to note that, despite the Conference Committee urging the Government on both occasions to promote social dialogue without delay through the establishment of a tripartite dialogue round table under the auspices of the ILO and to avail itself of ILO technical assistance to ensure full compliance with its obligations under the Convention, the Government has not commented on this subject.

The Committee notes that various United Nations bodies, including the Human Rights Council, the Group of Human Rights Experts on Nicaragua and the Inter-American Commission on Human Rights have indicated in various reports and resolutions issued in 2023 that human rights violations and abuses in the country are continuing and are worsening, and have expressed profound concern at the deterioration of restrictions on civic and democratic activities. The Committee also recalls that in its previous comments it noted with deep concern that, as denounced by the IOE, the President, Vice-President and former President of COSEP had been arbitrarily detained and that both the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights had urged the Government to proceed to their immediate release. The Committee observes that, according to the indications provided during the discussion in the Conference Committee, those employer leaders were released from prison in February 2023, expelled from the country and stripped of their nationality. The Committee deplores all these events and observes that the Conference Committee urged the Government to immediately cease all acts of violence, threats, persecution, stigmatization, intimidation or any other form of aggression against individuals or organizations in connection with both the exercise of legitimate trade union activities and the activities of employers’ organizations, including COSEP, and to adopt measures to ensure that such acts are not repeated, including the return of Nicaraguan nationality to those who have been deprived of it for this reason.

The Committee expresses deep concern at the fact that, despite its reiterated comments and the recommendations made by the Conference Committee over the past two years, not only has it not been possible to observe any progress in this regard, but it appears from the Government’s report that there is no recognition of the need to take action to give effect to these recommendations. Under these conditions, the Committee is once again bound to urge the Government in the strongest terms to adopt as soon as possible, in consultation with the social partners, each and every measure that it has been urged to take by the Conference Committee. It also requests the Government to provide information on all the measures adopted to ensure that effect is given to each of the recommendations made by the Conference Committee and on any progress achieved in the implementation of these measures. The Committee also urges the Government, with a view to achieving tangible progress in this regard, to establish without delay the tripartite dialogue round table recommended by the Conference Committee and to have recourse to ILO technical assistance to ensure full compliance with its obligations under the Convention.

Article 3 of the Convention. Right of workers’ organizations to organize their activities in full freedom and to formulate their programmes. The Committee recalls that for over a decade it has been referring to the need to take measure to amend sections 389 and 390 of the Labour Code, which provide that collective disputes shall be referred to compulsory arbitration once 30 days have elapsed since the calling of the strike. The Committee notes in this respect that the Government reiterates that, as a sovereign nation, it does not see the need to amend the wording of sections 389 and 390 of the Labour Code, as those provisions do not restrict trade union activities as, to reach such an extreme situation, the parties will have had to hold 23 negotiating sessions. The Committee is once again bound to remind the Government that the imposition of compulsory arbitration to end a strike, beyond the cases in which a strike may be limited or even prohibited, is contrary to the right of workers’ organizations to organize their activities and to formulate their programmes in full freedom. The Committee therefore once again strongly urges the Government to take the necessary measures to amend sections 389 and 390 of the Labour Code in order to ensure that compulsory arbitration is only possible in cases in which strikes may be limited or even prohibited, namely in cases of disputes in the civil service involving officials exercising authority in the name of the State, in essential services in the strict sense of the term or in the event of an acute national crisis. The Committee requests the Government to report any developments in this respect and firmly hopes that progress will be achieved in compliance with the Convention.

Article 11. Protection of the right to organize. In its previous comment, the Committee noted the statistical information on the establishment of new trade unions, as well as the updating of existing unions, and recalled that the rights conferred upon the employers’ and workers’ organizations protected by the Convention are totally void of meaning when there is no respect for fundamental freedoms, the right to protection against arbitrary detention and imprisonment and the right to a fair trial by an independent and impartial tribunal. Further recalling that Article 11 of the Convention establishes the requirement to take all necessary and appropriate measures to ensure that workers and employers can freely exercise the right to organize, the Committee requested the Government to report on the initiatives taken to guarantee the exercise of this right by workers and employers, and to provide information on their results. The Committee notes the Government’s indication that it is continuing to promote initiatives in support of the right to organize, that policies have been adopted to promote and encourage trade union organization and that, between 2018 and the first quarter of 2023, 156 new trade unions were established with a membership of 5,586 workers and that the existing 4,992 unions that have 352,454 members were updated. While noting the information provided by the Government, the Committee recalls once again that the rights of employers’ and workers’ organizations protected by the Convention are totally void of meaning when there is no respect for fundamental freedoms, the right to protection against arbitrary detention and imprisonment and the right to a fair trial by an independent and impartial tribunal. The Committee therefore once again requests the Government, in light of the above and taking into account the recommendations made by the Conference Committee, to provide detailed information on the initiatives adopted to guarantee the free exercise of the right to organize by both workers and employers.