Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 304, Junio 1996

1. 395. The Committee examined this case at its June 1994 meeting (see 294th Report, paras. 653-682, approved by the Governing Body at its 260th Session (June 1994)), at which it reached interim conclusions. Subsequently, the National Employees' Union (UNE) submitted further allegations and additional information in communications dated 17 May and 15 July 1994.
2. 396. The Government sent partial observations in communications dated 2 September and 10 October 1994 and 31 January and 11 March 1996.
3. 397. Nicaragua has ratified both 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. 398. In its previous examination of the case, which dealt with alleged acts of violence against trade union leaders and members, the Committee requested the Government to communicate as soon as possible its observations on the following allegations that were still pending: the alleged death threats against unionized workers at the La Candelaria plantation and against Mr. Isaïas Jiménez and other trade union officials at the La Florida ranch; the harassment and repression of trade union officials Pedro Turcios, Efrén Sánchez and Juan Vásquez of the National Development Bank, as well as the police persecution of the last-named official; and the violent eviction of 44 workers at the Penwalt enterprise who had gone on a hunger strike in front of the headquarters of the Central American Bank for Economic Integration (see 294th Report, paras. 669 and 682(b)).
2. 399. The Committee also examined allegations with respect to anti-union dismissals and made the following recommendations (see 294th Report, para. 682(c) and (d)):
   • The Committee requests the Government to inform it as to the results of the appeals filed by dismissed workers at the San Pablo plantation and the Amerrisque abattoir. The Committee also requests the Government to inform it of the decision handed down by the Supreme Court of Justice concerning the expulsion of the general secretary of the National Union of Education Workers - National Association of Teachers (ANDEN) from the National Educational Council.
   • The Committee also requests the Government to point out the specific reasons for the dismissals at the Alfonso Angelina plantation (15 union members), the El Paraíso ranch (the Secretary-General of the Union, Mr. Tránsito Torres Pérez) and the La Florida ranch (nine union members), so that it can issue an opinion in this respect.
3. 400. Finally, the Committee invited the complainant organizations to provide specific information concerning the alleged dismissal of workers affiliated to the National Union of Employees, since the Government stated that it could not reply if it did not have more details (names, work site, position) (see 294th Report, paras. 657 and 682(g)).

B. New allegations and additional information

1. 401. With respect to the Committee's request that the National Union of Employees (UNE) provide additional information on the alleged anti-union dismissal of union leaders and members in the public administration, the UNE states in its communication of 17 May 1994 that 144 union leaders and members working in various customs offices in the country were dismissed following the Ministry of Labour's declaration on 27 May 1993 that their strike was illegal. The organization adds that the 144 union leaders and members dismissed include the entire executive body of the National Federation of Customs Workers, and that they were not dismissed for restructuring but as a reprisal for having led and participated in a strike in the customs sector. The complainant organization also states that the National Federation of Customs Workers lodged an appeal with the Appeals Court, and that the General Directorate of Customs reinstated other workers (314) who had been dismissed but not the union leaders and members.
2. 402. Finally, in its communication of 15 June 1994 the UNE states that the court rejected the appeal lodged by the National Federation of Customs Workers on the grounds that workers in the public administration are not entitled to use strike action in support of union demands.

C. The Government's reply

1. 403. In its communication of 2 September 1994 concerning the UNE's allegations, the Government states that they concern a strike in essential services which is clearly prohibited under section 22 of the Labour Code and that the same section provides for compensatory measures such as submitting disputes between the parties to the labour courts for decision. The Government adds that, by refusing to comply with the Managua Appeals Court's decision that they resume negotiations or join the conciliation board, they failed to follow this procedure and instead went on strike.
2. 404. In its communication of 10 October 1994 concerning the allegations that were still pending in June 1994, the Government states that:
   • - with regard to the alleged threats against Mr. Isaïas Jiménez and other workers at the La Florida ranch, according to the workers' own statements to the police the threats came from the rebels (the Government encloses a statement to the police by the administrator of the ranch). The Government adds that the death threats did not come from the employer but from persons outside the ranch;
   • - with regard to the harassment and repression of workers of the National Development Bank and the police persecution of a union official, and the violent ejection of strikers from the Penwalt enterprise, the Ministry of Labour has asked the Ministry of the Interior for information;
   • - with regard to the alleged dismissals at the Alfonso Angelina and La Florida ranches, no administrative appeal has been filed. In the case of the El Paraíso ranch, Mr. Mr. Tránsito Torres Pérez decided to go and work in another ranch and, one year later, returned and asked for his permanent job back, which the owner of the ranch refused;
   • - the courts have not yet handed down their judgement on the appeals filed by the dismissed workers of the Amerrisque abattoir and the San Pablo plantation, or on the appeal lodged with the Supreme Court of Justice in connection with the expulsion of the secretary-general of ANDEN from the National Council of Education.
3. 405. In its communications of 31 January and 11 March 1996 the Government states that: (1) the incidents at the origin of the alleged acts of violence in 1993 have been completely resolved; (2) the relevant court judgements (Amerrisque abattoir, San Pablo plantation and ANDEN) have not yet been handed down; and (3) it reiterates the information it communicated previously regarding the dismissals at the Alfonso Angelina, El Paraíso and La Florida ranches. Finally, the Government states that, since the allegations in this case date back several years, it is impossible for it to obtain further information on certain aspects of the original allegations.

D. The Committee's conclusions

1. 406. The Committee observes that the allegations that were still pending when it last examined the case referred to death threats and acts of violence against union leaders and members and to anti-union dismissals in various enterprises. The Committee further observes that the new allegations refer to anti-union dismissals in the public administration.
2. 407. Regarding the alleged death threats against Mr. Isaïas Jiménez and other union leaders at the La Florida ranch, the Committee notes the Government's comment that the persons concerned stated to the police that the threats came from the rebels (the Government encloses a declaration to the police to this effect by the administrator of the ranch).
3. 408. Regarding the alleged acts of violence against union leaders and members (the harassment of trade union leaders Pedro Turcios, Efrén Sánchez and Juan Vásquez of the National Development Bank, and the police persecution of the last-named of these leaders; and the violent expulsion by force of 44 workers from the Penwalt enterprise who had gone on hunger strike in front of the headquarters of the Central American Bank for Economic Integration), the Committee notes the Government's statement in 1994 that it has requested information from the Ministry of the Interior. The Committee further notes that the Government has not sent any observations on the alleged death threats made against workers affiliated to the La Candelaria plantation trade union.
4. 409. Noting that the Government also states that, because most of the allegations date back to 1993, it is impossible for it to obtain further information to respond to certain aspects of the original allegations and that the incidents that were at the origin of the complaint have been resolved, the Committee emphasizes that it cannot accept these arguments and regrets that, in spite of the time that has passed and its various requests for information, the Government has either sent incomplete information or has made no observation at all. That being so, the Committee emphasizes that "freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed" and that, "in the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 46 and 53). Bearing in mind the aforementioned principles, therefore, the Committee calls on the Government to arrange for judicial inquiries to be instituted immediately into the alleged acts of violence.
5. 410. Regarding the alleged dismissals in the Alfonso Angelina plantation (15 union members), the El Paraíso ranch (the Secretary-General of the Union, Mr. Tránsito Torres Pérez) and the La Florida ranch (nine union members), the Committee notes the Government's statement that no administrative appeals against dismissal have been filed at the Alfonso Angelina and La Florida ranches, and that in the case of the El Paraíso ranch Mr. Tránsito Torres Pérez decided to go and work in another ranch and returned one year later asking for his permanent job back, which the owner of the ranch refused.
6. 411. The Committee deeply regrets that the Government has not investigated whether the alleged incidents were due to the trade union office or activities of the persons concerned. That being so, the Committee calls on the Government to arrange for an inquiry to be held at the Alfonso Angelina and La Florida ranches and, should the allegations prove true, for compensation to be provided for any acts of discrimination that may have been committed and that the persons concerned be reinstated in their jobs.
7. 412. Regarding the alleged anti-union dismissal of 144 union leaders and members affiliated to the UNE following a strike that had been declared illegal by the administrative authorities, the Committee notes that according to the Government: (i) the strike took place in essential services, which is clearly prohibited by section 22 of the Labour Code; (ii) the same section of the Labour Code provides for compensatory measures such as submitting disputes between the parties to the labour tribunals for resolution; and (iii) by refusing to comply with the Managua Appeals Court's decision that they resume negotiations or join the conciliation board, the complainants failed to make use of this compensatory measure and went on strike instead.
8. 413. The Committee wishes to recall that "recognition of the principle of freedom of association in the case of public servants does not necessarily imply the right to strike" (see Digest, op. cit., para. 531) and that it has stated on many occasions that the right to strike may be restricted or prohibited in the public service in the case of officials who exercise authority in the name of the State. Noting that in the present case almost all the union leaders and members who took part in the strike were employed in various customs offices in the country - and can therefore be looked upon as public servants exercising authority in the name of the State - the Committee considers that the ban on workers in this sector taking part in a strike is not contrary to the principles of freedom of association, especially bearing in mind that the workers concerned benefit from compensatory guarantees, for example in the form of participation in negotiations on a conciliation board.
9. 414. However, the Committee wishes to remind the Government that "dismissals of strikers on a large scale involve a serious risk of abuse and places freedom of association in grave jeopardy" and that "the competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association that such dismissals involve" (see Digest, op. cit., para. 604). That being so, the Committee calls on the Government, with a view to encouraging a return to harmonious industrial relations, to endeavour to facilitate the reinstatement in their jobs of the UNE leaders and members dismissed in the customs sector. The Committee requests the Government to keep it informed of developments.
10. 415. Finally, the Committee regrets the extremely long delay - some of the judicial proceedings date back to 1992 - in the judicial authorities' ruling on the appeals lodged by the workers dismissed from the San Pablo plantation and Amerrisque abattoir and on the expulsion of the secretary-general of ANDEN from the National Council of Education and reminds it that "cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the dismissed trade union leaders, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned" (see Digest, op. cit., para. 749). In these conditions, the Committee firmly expects that the judicial authorities will hand down their decision as soon as possible and requests the Government to keep it informed of the outcome of the proceedings in question.