Informe provisional - Informe núm. 336, Marzo 2005

1. 655. The complaint is contained in a communication from the General Confederation of Education Workers of Nicaragua (CGTEN-ANDEN) dated May 2004. In communications dated 3 and 8 June 2004, the International Confederation of Free Trade Unions (ICFTU) and Education International (EI) supported the complaint.
2. 656. The Government sent its observations in communications dated 22 September and 14 October 2004.
3. 657. 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. 658. In its communication dated 20 May 2004, the General Confederation of Education Workers of Nicaragua (CGTEN-ANDEN) states that between June and July 2003, agreements were signed between the Ministry of Education, Culture and Sport (MECD) and the trade unions in the education sector. The agreements are the culmination of a long struggle by the teaching profession since early 2003.
2. 659. Nevertheless, the complainant organization alleges the following violations of Conventions Nos. 87 and 98 by the Government:
3. (1) the Government, via the MECD, is trying to dismiss union leader Mr. Julio Jimmy Hernández Paisano, labour secretary of the Departmental Federation of Teaching Staff in Managua, and since April his salary has been withheld and his right to other benefits suspended;
4. (2) the management of the “Rubén Darío” educational establishment in the municipality of Tipitapa has tried to dismiss union leaders Mr. Norlan José Toruño Araúz, publicity and dissemination secretary of the Union of Teaching Workers of the municipality of Tipitapa, and Mr. Joel Ismael Rodríguez Soto, section head at the “Rubén Darío” educational establishment. An application was made to the departmental labour inspectorate requesting the termination of the contracts of both leaders in flagrant anti-union persecution, given that attempts had been made last year to terminate the contracts using the same arguments but the general labour inspectorate’s decision had gone in favour of the union leaders;
5. (3) union leader Mr. Manuel Sebastián Mendieta Martínez, general secretary of the Departmental Federation of Teaching Staff of Carazo, has been the victim of anti-union persecution from the director of the “Diriángen” National Institute of the municipality of Diriamba, who assigned a person to monitor the union leader’s movements;
6. (4) the Government refuses to comply with judicial rulings ordering the reinstatement of union leaders and the payment of outstanding salaries (the union leaders include Ms. Miriam Gutiérrez, Mr. Róger Benito Acevedo Jiménez, Ms. Miriam Olivas Ardón and Mr. José Antonio Zepeda);
7. (5) the Government, through the MECD, has repeatedly given preferential treatment to other trade unions in the sector, openly supporting them by guaranteeing them office facilities and other benefits such as use of the institution’s telephones, provided that they are loyal servants of the institution and are willing to support the Government line, with the sole aim of obstructing the struggle of the teaching profession. The organizations which receive preferential treatment from the Government are: the National Confederation of Schoolteachers of Nicaragua (CNMN), the MECD “Josefa Toledo de Aguerri” Departmental Union of Workers and Teachers, the Trade Union Federation of Schoolteachers (FESINMA), the Federation of Free Democratic Workers and Teachers of Managua, the “MECD 29 June” Federation of Workers and Teachers, the MECD Federation of Workers and Teachers and the MECD Headquarters Union of Workers;
8. (6) the Government has refused to grant paid trade union leave to CGTEN-ANDEN officials, while doing so freely to the other organizations mentioned above;
9. (7) the Government fails to recognize the legality of CGTEN-ANDEN and does not allow it to participate in the National Education Commission, notwithstanding section 8(3) of the Educational Careers Act, which reads as follows: “A National Education Commission shall be established, comprising one representative from each organization of teachers that is national in character and legally constituted”;
10. (8) the Government is ordering educational establishments in writing to bar CGTEN ANDEN leaders in the municipalities of San Isidro and Tipitapa from entering the “Rubén Darío”, “Andrés Castro” and “Los Laureles” rural education centres (NERPE) and the “Divina Inmaculada” school;
11. (9) the MECD has suspended payments of performance-related pay provided for in clause 13 of the sectoral collective agreement to workers who have taken part in actions supporting trade union demands; the complainant organization also alleges that, in violation of the collective agreement, the MECD does not honour the “zone allowance” of more than 20,000 teachers or implement agreed salary increases;
12. (10) the Ministries of Labour and Education declare, in violation of article 83 of the Political Constitution of the Republic, that any strike would be illegal, and;
13. (11) the MECD prohibition on paying dues to the complainant organization is in breach of clause 12 of the collective agreement.
14. 660. Finally, the complainant organization states that the MECD refuses to initiate negotiations as provided for by law, claiming that it is not yet time to do so since the budget has not been approved, but above all it calls on its affiliated organizations to manoeuvre and display reluctance to negotiate.

B. The Government’s reply

1. 661. In its communications dated 22 September and 14 October 2004, the Government states that there is full freedom in Nicaragua for workers and employers to establish the organizations they consider relevant for watching over and protecting their interests, and that the right to organize as trade unions is a constitutional right for both parties to the labour relationship. The Political Constitution lays down that there is unlimited freedom for organizing as trade unions or for not doing so.
2. 662. With respect to the complaint in question, the Government indicates that it maintains a clear policy of negotiation (employers and workers), guaranteeing the human rights of workers and employers, in particular the principles of freedom of association and trade union pluralism.
3. 663. As regards the situation of the union officials referred to by the complainant organization, the Government points out that it is the State’s obligation to guarantee that workers’ representatives enjoy effective protection against any harmful act committed on account of their union status or activities. This is the concept of trade union immunity, which employers are obliged to accept and in accordance with which they may not interfere in any way with the formation or operation of trade unions. Anyone enjoying trade union immunity may not be punished or dismissed without just cause previously authorized by the Ministry of Labour. Labour legislation invokes clear grounds for termination of a contract and authorization by the Ministry of Labour to dismiss those to whom the law affords special protection. The Government adds that the holding of union office does not confer such immunity on the holder as to allow him to break the law: trade union immunity shall and does protect lawful acts. When a worker is continually absent from work without the employer’s permission, it does not constitute a violation of the freedom of association.
4. 664. The Government makes the following specific points:
   • - with respect to Mr. Julio Jimmy Hernández Paisano, labour secretary of the Departmental Federation of Teaching Staff in Managua, the appropriate channels under current labour legislation were used to secure his compliance with his obligations, in view of the fact that, in full violation of his contractual obligations, he refused to perform his duties consistently (according to the Government, he is not on trade union leave);
   • - as regards Mr. Norlan José Toruño Araúz, member of the union affiliated to ANDEN, the head of NERA “Rubén Darío” education centre in the municipality of Tipitapa in the department of Managua appeared before the departmental labour inspectorate to request authorization to terminate his contract. The administrative proceedings opened with a four-day period involving both parties. The respondent alleged that the departmental labour inspectorate was not competent to handle proceedings concerning his dismissal, since there are specific labour provisions which take precedence over the General Act establishing the Labour Code, and he therefore asked that the inspectorate be taken off the case. During the evidentiary period, the complainant submitted abundant evidence to support the grounds invoked by the employer, laid down by section 48(d) of the Labour Code. Proof was given of the misconduct of which the teacher had been guilty, failing to discharge the obligations laid down in his contract and those contained in the General Regulations on Primary Education. According to testimonies from the employer, the teacher took it upon himself to set parents and members of the school council against the headmaster. The school suffered serious harm from interruptions to classes, the organization of protests, the closure of gates preventing staff access, and from his dereliction of duty for the purpose of performing tasks not specified by his plan of work, all these actions having no legal authorization. The departmental inspector issued an order for the termination of the contract. Availing himself of his rights under labour law, the worker appealed against the order (the Government also refers in its reply to another worker who was not mentioned by the complainant organization);
   • - concerning union leader Mr. Manuel Sebastián Mendieta Martínez, the Government requests further information in this respect, since to date, no action has been brought before the Ministry of Labour by either the employer or the worker.
5. 665. With regard to the alleged non-compliance with judicial rulings ordering the reinstatement of dismissed union officials and the payment of outstanding wages, the Government points out that where the employer unilaterally cancels the contract of a union official, the latter may apply to the labour judge to request reinstatement and the payment of outstanding wages and benefits, within 30 days following the dismissal. If the labour judge orders the reinstatement, the employer is obliged to implement it and pay the wages and benefits owed to the workers in question. The Government indicates that the Labour Code provides that the employer may pay double the seniority indemnity to a worker in respect of whom a definitive reinstatement order has been issued. According to case law, union officials have the choice either to accept the double indemnity or actually to be reinstated.
6. 666. Regarding the premises for union meetings in the education sector, the MECD reiterates its undertaking to provide facilities for trade unions which are signatories to the collective agreement. The said unions are provided with the use of the facilities of departmental study centres for holding assemblies or meetings or undertaking any other union activity.
7. 667. As regards trade union leave, the collective agreement provides the unions with up to 60 days each for activities which they consider appropriate. The MECD has a fund of up to NIC45,000 to cover replacements for leave granted for union training, seminars and congresses. Leave with pay is granted by the Central Human Resources Department no later than two days after the request is made. The unions undertake in turn to ensure that leave is used appropriately and in accordance with the applicable conditions.
8. 668. The Government emphasizes that at the MECD there are 23 organizations of education workers duly constituted and registered with the Directorate of Trade Unions at the Ministry of Labour, and that CGTEN-ANDEN and the other unions are joint signatories to the collective agreement in force for 2004-2006. There is therefore no violation of freedom of association or social/labour rights as claimed in the present complaint.
9. 669. With regard to the alleged exclusion of CGTEN-ANDEN from the National Education Commission, the Government indicates that this statement has no legal basis, as proved by the memo issued on 26 July 2004 by the President of the National Education Commission placing on record that there is no application for membership from the representatives of CGTEN-ANDEN in the Commission’s files.
10. 670. With respect to the exercise of the right to strike, the Government indicates that Article 83 of the Political Constitution recognizes the right to strike and that the right to strike of workers and their organizations constitutes one of the fundamental means at their disposal for promoting and defending their interests. According to the Government, holding public demonstrations is an important aspect of union rights. Nevertheless, the distinction must be made between demonstrations with purely union aims and demonstrations which have other objectives, such as criticizing the Government’s economic and social policy. The important thing is that those means are exercised peacefully in accordance with the principles of freedom of association laid down in ILO Convention No. 98.
11. 671. With regard to trade union dues, the Government states that the opening of a check-off code for CGTEN-ANDEN was authorized in April 2004. Every duly constituted trade union in the education sector, such as CGTEN-ANDEN, can access the codes in order to receive its respective trade union dues as laid down by section 224 of the Labour Code.
12. 672. Finally, the Government declares that Article 88(2) (in Chapter V, Labour Rights) of the Political Constitution reads as follows: “The inalienable right of workers to conclude collective agreements with employers in defence of their individual or union interests is guaranteed.”. The MECD has followed the procedures and conducted the negotiations prescribed by law with the various unions of education workers which have been duly constituted and registered with the Directorate-General of Trade Unions at the Ministry of Labour, concluding a collective labour agreement which guarantees economic, social and employment-related improvements for education workers. This is confirmed and demonstrated by the conclusion of the 2004-2006 collective agreement, negotiated with six confederations (including CGTEN-ANDEN), six federations, four departmental unions and seven unions.

C. The Committee’s conclusions

1. 673. The Committee observes that the complainant organization alleges acts of anti-union persecution against its leaders, non-compliance with orders for the reinstatement of dismissed union leaders and the payment of outstanding wages, the granting of benefits (offices, use of telephones, etc.) to pro-Government organizations in the sector, the denial of union leave to its leaders, the impossibility of participating in the National Education Commission, the violation of agreements between the Ministry of Education, Culture and Sport (MECD) and educational establishments, the failure to pay salary increases agreed upon in the collective agreement, the declaration by the authorities that a strike in the sector would be illegal, the refusal to deduct members’ union dues at source, the MECD’s refusal to launch the negotiations prescribed by law or to allow union leaders access to various educational establishments.
2. 674. As regards the allegations concerning acts of anti-union persecution against leaders of the complainant organization, Messrs. Julio Jimmy Hernández Paisano, Norlan José Toruño Araúz, José Ismael Rodríguez Soto and Manuel Sebastián Mendieta Martínez, the Committee notes that the Government indicates that: (1) with regard to Mr. Julio Jimmy Hernández Paisano, who is not on union leave, the latter has refused to comply with his obligation to resume his duties; (2) as regards Mr. Norlan José Toruño Araúz: (a) the management of NERA “Rubén Darío” education centre requested authorization to terminate his contract; (b) an administrative investigation was set in motion and evidence was given of misconduct on the part of the official in question (the entrance gates were closed, barring entry to the staff, and he abandoned his duties for the purpose of engaging in tasks not specified by his plan of work); (c) the departmental inspectorate issued an order for termination of his contract and he lodged an appeal against the order; and (3) with regard to union official Mr. Manuel Mendieta Martínez, further information is needed since no proceedings have been brought before the Ministry of Labour by either the worker or the employer.
3. 675. In this respect, the Committee requests the Government to keep it informed: (1) on the work situation of union leader Mr. Julio Jimmy Hernández Paisano (specifically, whether he has been dismissed for dereliction of duty) and on whether he has lodged an appeal in this respect; and (2) on the result of the appeal made by union leader Mr. Norlan José Toruño Araúz against the administrative decision to authorize the termination of his contract. In addition, the Committee requests the Government to carry out an investigation in relation to the work situation of union official Mr. José Ismael Rodríguez Soto, with respect to whom it was also alleged that the termination of his contract had been requested, and to keep it informed in this respect.
4. 676. With regard to the allegation that union leader Mr. Manuel Sebastián Mendieta Martínez was the victim of anti-union persecution, having had a person assigned to watch his movements, the Committee requests the Government to take steps to carry out an investigation into these allegations and to send its observations in this respect.
5. 677. As regards the alleged failure to implement judicial orders for the reinstatement of union officials and the payment of outstanding wages (the complainant organization refers by name to the officials concerned), the Committee notes that the Government states that: (1) if an order for reinstatement is issued by the labour judge, the employer is obliged to comply with it and pay the outstanding wages; and (2) the Labour Code stipulates that the employer may pay double the seniority indemnity to a worker covered by a definitive reinstatement ruling and, according to case law, union leaders have the choice either to accept the double indemnity or actually to be reinstated. Under these circumstances, the Committee requests the Government to ensure that the union officials named above by the complainant organization may opt freely for the implementation of the judicial decision or to accept the said indemnity. The Committee requests the Government to keep it informed in this respect.
6. 678. Concerning the alleged preferential treatment of certain unions by the MECD, providing office facilities and other benefits such as the use of telephones in return for supporting the Government, the Committee notes the Government’s statement that the MECD repeats its undertaking to provide facilities for those unions which are signatories to the collective agreement and accordingly provides them with facilities at departmental study centres so that they can hold assemblies, meetings or any other activity. In this respect, observing that all the unions which are representative in the sector may benefit from the use of the premises for carrying out their activities, the Committee requests the Government to take measures to guarantee that, in compliance with the undertaking mentioned above, the complainant organization may enjoy the same benefits as the other unions of the sector. The Committee requests the Government to keep it informed in this respect.
7. 679. As regards the allegations concerning the refusal of the MECD to grant paid union leave to officials of the complainant organization, while doing so for other unions in the sector, the Committee notes the Government’s statement that: (1) up to 60 days each for all the unions is laid down in the collective agreement so that they can carry out whatever union activities they see fit, and (2) paid leave is granted by the Central Human Resources Department no later than two days after the request is made, and the unions undertake in turn to ensure that leave is used appropriately. In this respect, the Committee requests the Government to ensure that, in accordance with the terms of the collective agreement, the officials of the complainant organization can avail themselves of paid union leave. The Committee requests the Government to keep it informed in this respect.
8. 680. With regard to the allegation concerning the Government’s refusal to allow CGTEN ANDEN to participate in the National Education Commission, the Committee notes the Government’s statement that in the Committee’s records there is no application to join the Committee from the complainant organization. In this respect, observing that the Government does not oppose the complainant organization’s participation in the National Education Commission, the Committee requests the Government, if CGTEN-ANDEN formally applies for membership, to take steps to allow its admission.
9. 681. Concerning the allegation that the MECD does not allow the check-off of union dues from members of the complainant organization, the Committee notes with interest the Government’s statement that in April 2004 the opening of a check-off code for CGTEN ANDEN was authorized and that any duly constituted trade union in the education sector may access the codes in order to receive its respective union dues as laid down by section 222 of the Labour Code. The Committee hopes that CGTEN-ANDEN will be able to receive its members’ union dues in the near future and requests the Government to keep it informed in this respect.
10. 682. With respect to the allegations concerning statements by the Ministry of Labour and the MECD that a strike in the sector would be illegal, the Committee notes the Government’s statement that the right to strike of workers and their organizations constitutes one of the fundamental means at their disposal for promoting and defending their interests, but that a distinction must be made between demonstrations with purely union aims and demonstrations for other purposes, such as criticising the Government’s economic and social policy. The Committee recalls in this respect that organizations responsible for defending workers’ socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 480].
11. 683. With regard to the allegations concerning the non-observance of a collective agreement in the teaching sector with respect to the payment of performance-related pay, the right to a “zone allowance” and other benefits, and to the allegation that the MECD refuses to start negotiations claiming that the budget has not been approved, the Committee notes with interest the Government’s statement that CGTEN-ANDEN and other trade unions in the sector have concluded a collective agreement for 2004-06 which guarantees economic, social and employment-related improvements for education workers. Taking this information into account, the Committee will not make any further examination of these allegations.
12. 684. Finally, with respect to the allegations concerning the written orders from the MECD to educational establishments to bar entry to CGTEN-ANDEN leaders, the Committee observes that the Government has not communicated its observations in this respect. In these circumstances, the Committee requests the Government to take steps to ensure that CGTEN-ANDEN officials can have access to educational establishments in the context of the exercise of their union duties. The Committee requests the Government to keep it informed in this respect.