Rapport intérimaire - Rapport No. 333, Mars 2004

Cas no 2264 (Nicaragua) - Date de la plainte: 25-AVR. -03 - Clos

Allegations: Anti-union dismissals during a collective dispute at the Presitex Corp. S.A. company because of unilateral changes in the methods of production and payment of the workers

1. 771. The Agricultural Workers’ Association (ATC) presented a complaint in a communication dated 24 April 2003. This organization sent further information in a communication dated 26 May 2003. The Government sent its observations in a communication dated 12 September 2003.
2. 772. 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. 773. In its communications of 24 April and 26 May 2003, the Agricultural Workers’ Association (ATC) alleges that the Presitex Corp. S.A. textile company in the export processing zone, which employs 2,045 workers, has committed various violations of trade union rights against the trade union officials of the Lidia Madariaga Trade Union.
2. 774. The complainant organization indicates that, following a number of anti-union dismissals, disputes and obstacles to collective bargaining and violations of the collective agreement in previous years, on 15 January 2003, the company informed the trade union that on 23 January 2003 there would be new methods for production and for payment of wages and it presented a range of decisions that unilaterally changed the method of payment. On 24 January 2003, Evelin Moreno and Lilian Moreno were dismissed for their links with the trade union and their opposition to the unilateral changes in the method of payment. On 27 January 2003, the company prevented the members of the executive committee of the trade union from entering the workplace. On the following day, Miguel Angel Laguna, Secretary-General of the trade union, was attacked by a security employee; the workers protested and stopped work to support this trade union official. On 29 January, company representatives closed the company and on 30 January the company made a formal announcement that it was considering withdrawing its investments in Nicaragua and requested a deferral in order to communicate its definitive decision on 5 February. The complainant organization also refers to pressure that was aggressively and disrespectfully brought to bear by the Embassy of Taiwan and its diplomatic representative on the Ministry of Labour. In the middle of meetings with the authorities and the parties to the dispute, the company requested authorization for the dismissal of the trade union executive committee and the police began to guard the company buildings. Finally, on 3 March 2003, the labour inspectorate authorized the termination of the employment contracts of four trade union officials, a decision that was confirmed on administrative appeal on 14 March.
3. 775. The complainant organization indicates that in this case it is clear that the workers and their trade unions have been compelled to take part in activities involving partial stoppages and temporary strikes as a last resort to succeed in containing the retaliation offensive of their employer. These situations, perhaps lacking in formal legal status but highly legitimate when faced with a lack of state protection for the rights of workers, have also been examined by the bodies of the ILO in other contexts.
4. 776. Finally, the complainant organization states that it has petitioned the legal authorities.

B. The Government’s reply

1. 777. In its communication of 12 September 2003, the Government, referring to the dismissal of four members of the Lidia Madariaga Trade Union executive committee, states that the Presitex Corp. S.A. company requested authorization to dismiss from the Ministry of Labour, as laid down in the legislation. The workers submitted in writing a request for a hearing on a collective basis; a decision indicating a hearing for the workers for the second and last time was issued. The workers stated that if they were not allowed to have a hearing on a collective basis they would not appear. A decision was issued to open the procedure to evidence and testimony to both parties for a period of four days, and the time period was extended to enable the authorities to complete this. The Departmental Inspectorate of Labour of Matagalpa admitted all the evidence, submitted by both parties, endeavouring to obtain compromises from the parties so that in the hearing granted to the workers the dispute might be resolved through understanding and agreement. However, this was impossible as the workers requested a collective hearing and the employer requested that the hearing take place on an individual basis with each worker; both parties submitted photographs as evidence but it was not possible to determine what really occurred just by examining these. The workers submitted 784 signatures in their favour, which were not dated, and none of the three points to which they referred, related to the request in itself or to the authorization for dismissal; the opposite was the case with the 873 signatures submitted by the employer supporting the company.
2. 778. With regard to the witnesses’ statements proposed by the workers, the Government states that the workers restricted themselves to giving their version of what occurred without contradicting the main facts, and this was accepted in the complainant’s favour. However, the witnesses’ statements proposed by the employer, including sworn statements, show that the trade union officials acted disrespectfully towards the employer and work colleagues, reaching the point of abusive words and behaviour, endangering the security of staff and the company and causing economic losses to the company. One of the determining evidentiary elements in this case was a video, which is part of the file and which was seen in the presence of both parties, clearly showing that the trade union officials appearing in said video are those who organized the work stoppage on 28 January 2003.
3. 779. The Government states that the decision issued by the labour inspectorate gave rise to the authorization for dismissal based on the legislation and the internal regulations of the Presitex Corp. S.A. company. The workers appealed the administrative decision of the labour inspector, which allowed workers Miguel Antonio Laguna Laguna, Dulce Lila Osejo Roque, Luisa Ortega Jarquin and Hector Casimiro Centeno Rizo to submit their version of the grievances in reply to those in the abovementioned decision. Subsequently, on 14 March 2003, the General Inspector for Labour of Managua, of the Ministry of Labour, considered that there was sufficient evidence to show that the persons mentioned were directly responsible for the acts of insubordination that took place in the Presitex Corp. S.A. company, as it was they who incited the other workers to abandon their posts and to continue their defiance by not returning to work, which, as a direct consequence, led to a climate of violence and instability in the workplace as these workers did not fulfil the obligations that their respective employment contracts imposed on them, as can clearly be seen in the file.
4. 780. Moreover, the General Inspector for Labour considered that while it is true that the political Constitution of Nicaragua, and the Labour Code, grants workers the right to organize and to carry out any type of demonstration with regard to the fulfilment of their rights, whether they be individual or collective in character, it is nonetheless true that the same law provides, at all times, that the procedures used should be those laid down in the legislation; and that, with their acts of insubordination the persons mentioned above caused economic hardship to the company, which clearly represents non-fulfilment of the obligations that they have as workers. Based on all of the abovementioned, he confirmed entirely the decision appealed against and authorized the termination of the employment contracts of the four trade union officials in question.
5. 781. Furthermore, the Government points out that the same complaint from the complainant organization indicates that “in this case it is clear the workers and their trade unions have been compelled to take part in activities involving partial stoppages and temporary strikes as a last resort to succeed in containing the retaliation offensive of their employer. These situations perhaps lack formal legal status but are highly legitimate when faced with a lack of state protection”. The Government states that protection of freedom of association by the State is particularly exercised against any act that aims to dismiss a worker or to cause prejudice for a worker in any form because of his/her trade union affiliation, but that, in the present case, the confession by the complainants of “activities involving partial stoppages and temporary strikes is clear”. These situations do in fact lack formal legal status; and they can never become in any way legal or officially permitted. The complainant recognizes that the practice used by the trade union executive board was completely inappropriate and illegal when it encouraged the other workers to abandon their work and posts, misrepresenting the trade union right to demonstrate in accordance with the law.
6. 782. The Government concludes by stating that on 24 June 2003, a collective agreement was signed between the Presitex Corp. S.A. company and the Democratic Workers’ Trade Union of the Presitex Corp. S.A. company, for two years from the date of signature.

C. The Committee’s conclusions

1. 783. The Committee notes that the allegations in the present case refer mainly to the dismissal of four members of the executive committee of the Lidia Madariaga Trade Union as a result of a collective dispute relating to the unilateral changes by the Presitex Corp. S.A. company in the methods of production and payment of wages. The Committee notes that the Government justifies the administrative authorization for the dismissal of the four trade union officials by stating that they incited the other workers to abandon their posts and to continue their acts of insubordination by not returning to work, with the direct consequence of a climate of violence and instability as these workers did not fulfil the obligations imposed upon them by their respective employment contracts; the Government also states that these acts of insubordination led to economic hardship for the company, and that the complainant organization recognizes in its complaint that partial stoppages and temporary strikes lacked formal legal status; according to the Government’s reply the trade union officials acted disrespectfully towards the employer and work colleagues, reaching the point of abusive words and behaviour.
2. 784. The Committee notes, however, that, although this is a collective dispute, the Government recognizes that in the procedure carried out by the labour inspectorate, the workers requested a collective hearing and the employer requested that the hearing be on an individual basis with each worker and that because of this it was impossible for the dispute to be resolved through understanding and agreement. Moreover, the complainant organization highlighted pressure from the Embassy of Taiwan and its diplomatic representative on the Ministry of Labour, and the threat of the company to withdraw its investments in Nicaragua. Furthermore, the Government has not indicated whether, as maintained by the complainant organization as the cause of the dispute, the employer unilaterally imposed new methods of production and payment of the workers; neither has it provided its observations on the previous dismissal of two workers belonging to the trade union (Evelin Moreno and Lilian Moreno) as a result of their opposition to the unilateral changes in the method of payment, nor on the attack that the Secretary-General of the trade union suffered at the hands of a security employee of the company.
3. 785. The Committee requests the Government to send information on: (i) the alleged unilateral decision of the Presitex enterprise to modify the methods of production and the system of wage payments without consulting the union; (ii) the reasons why the enterprise and the Ministry refused to accept the collective audience requested by the workers aimed at obtaining the conclusion of a collective agreement; (iii) the alleged pressure exercised by diplomatic representatives of a foreign country on the Ministry of Labour. The Committee requests the Government to promote an appropriate procedure for collective bargaining at the enterprise and to ensure that no outside pressure is brought to bear on the collective bargaining process in violation of Convention No. 98.
4. 786. In these circumstances, the Committee requests the Government to provide it with a copy of the decision handed down by the judicial authorities on the dismissal of the four members of the trade union executive committee, as well as information on the specific facts that were cause for the dismissal of the trade union members Evelin Moreno and Lilian Moreno. The Committee also requests the Government to ensure that those concerned are reinstated in their jobs without loss of pay if it is shown that their dismissals were due to anti-union motives.

The Committee's recommendations

1. 787. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to send information on: (i) the alleged unilateral decision of the Presitex enterprise to modify the methods of production and the system of wage payments without consulting the union; (ii) the reasons why the enterprise and the Ministry refused to accept the collective audience requested by the workers aimed at obtaining the conclusion of a collective agreement;and (iii) the alleged pressure exercised by diplomatic representatives of a foreign country on the Ministry of Labour. The Committee requests the Government to promote an appropriate procedure for collective bargaining at the enterprise and to ensure that no outside pressure is brought to bear on the collective bargaining process in violation of Convention No. 98.
   • (b) The Committee requests the Government to provide it with a copy of the decision handed down by the judicial authorities on the dismissal of the four members of the trade union executive committee, as well as information on the specific facts that were cause for the dismissal of trade union members Evelin Moreno and Lilian Moreno. The Committee also requests the Government to ensure that those concerned are reinstated in their jobs without loss of pay if it is shown that their dismissals were due to anti-union motives.