Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 356, Marzo 2010

Effect given to the recommendations of the Committee and the Governing Body

1. 110. The Committee last examined this case at its March 2009 meeting. The Committee previously urged the Government to take the necessary steps to ensure that union official Mr Chávez Mendoza was reinstated in his post without loss of pay until the judicial authority had ruled on his dismissal, and asked the Government to keep it informed in that regard and to send a copy of the final ruling as soon as it was handed down. The Committee also requested the Government to take the necessary steps to ensure that an independent investigation was carried out to determine whether there was in fact an anti-union policy against trade unions that were not in agreement with the Government and, if these allegations were shown to be true, to put an immediate end to such anti-union measures and to guarantee free exercise of the trade union activities of those organizations and their officials. At its March 2009 meeting, the Committee noted the Government’s statement that workers in Nicaragua have at their disposal two possible ways of enforcing their rights, namely, administrative, through the Ministry of Labour, and judicial, through the labour courts, that Mr Donaldo José Chávez Mendoza chose the second option, and that proceedings are therefore under way in the competent court. The Committee noted with regret that the Government had not communicated the requested information, which suggested that the Government had not taken the measures called for, and it therefore reiterated its previous recommendations [see 353rd Report, paras 158–160].
2. 111. In its communication dated 4 June 2009 the Government stated, with regard to the recommendation to reinstate Mr Chávez Mendoza in his post pending the judicial authority’s ruling on his dismissal, that this recommendation is legally impossible to implement in Nicaragua for several reasons. Article 129 of the Political Constitution determines the independence of the state authorities and article 159 thereof provides that the judicial power to hand down rulings and enforce them belongs exclusively to the judicial authority. Hence the Government of Reconciliation and National Unity cannot interfere with matters outside its jurisdiction, issuing an order for reinstatement and payment of outstanding wages, which is precisely the matter under dispute in the present case. It is for the judicial authority to determine whether or not the reinstatement and payment of outstanding wages should go ahead. The ILO, being aware of the labour legislation of Nicaragua, knows that the administrative authority has no power to issue any measure once the case is outside its jurisdiction. Moreover, the labour legislation is clear in this respect since section 46 of the Labour Code establishes as every worker’s legitimate right the power to bring an action in a labour court to seek reinstatement and the payment of outstanding wages if the worker considers that there has been an infringement of the labour legislation, a restriction of his or her rights as a worker or an act of retaliation for exercising or seeking to exercise trade union rights. The Government points out that section 46 of the Labour Code provides that where termination of the contract by the employer is proven to have been in breach of the prohibitive provisions of the Labour Code and other labour regulations, or constitutes an act which restricts the worker’s rights, or has the nature of retaliation against the worker for exercising or seeking to exercise labour or trade union rights, the worker shall be able to bring an action in the labour court to request reinstatement in the same post as before and under identical working conditions, the employer being obliged, if the reinstatement is upheld, to pay all outstanding wages and effect the reinstatement. Where the reinstatement is upheld and the employer fails to comply with the judicial ruling, the latter shall be obliged to pay the worker, on top of the compensation due, a sum equivalent to 100 per cent thereof. The labour court must settle such cases within 30 days of the action being filed and in the event of an appeal, the court in question must do so within 60 days of taking over the proceedings. Both deadlines are mandatory and, should any judge or magistrate fail to settle the case within the prescribed deadline, the respective superior shall, at the request of the injured party, impose a fine equivalent to 10 per cent of the salary of the judicial officer concerned.
3. 112. As regards the Committee’s recommendation that the Government take the necessary steps to ensure that an independent investigation was carried out to determine whether there was in fact an anti-union policy against trade unions that were not in agreement with the Government, the Government gives the assurance that the complaint on which this recommendation is based is groundless, for the following reasons. Trade union pluralism has prevailed in Nicaragua since 1979 and this is closely linked to political pluralism. Thousands of workers freely and peacefully join trade unions of their own choosing. The wide range of unions includes the following: Confederation of Trade Union Action and Unity (CAUS); General Confederation of Independent Workers (CGT(I)); Workers’ Federation of Nicaragua (CTN); General Confederation of Education Workers (CGTEN–ANDEN); Federation of Health Workers (FETSALUD); José Benito Escobar Sandinista Workers’ Confederation (CST(JB)); Nicaraguan Workers’ Federation (CNT); Pablo Martínez Sandinista General Workers’ Confederation (CGST); Agricultural Workers’ Association (ATC); National Employees’ Union (UNE); Confederation of Labour Unification (CUS); Autonomous Workers’ Federation of Nicaragua (CTN(A)); Confederation for Worker Unification (CUT); National Teachers’ Confederation of Nicaragua (CNMN); National Workers’ Front (FNT). The above list comprises just the organizations which are national in scope. All of them are linked to various partisan organizations or ideologies and all of them are active in the country, without any limitations imposed. They also include workers from the various public and private economic sectors of the country and all the departments into which Nicaragua is politically divided. They are vigorous in the defence of their union interests and can at any given time present a complaint against the Government of Nicaragua, with highly politicized overtones, to the relevant bodies of the ILO, for alleged violations of freedom of association or for failure to comply with the provisions of a Convention ratified by Nicaragua. Furthermore, they can submit a request to the country’s labour authorities for failure to comply with one or more clauses of the collective agreement or for alleged violations of the national labour legislation. Moreover, freedom of association in Nicaragua is guaranteed by the provisions of the Political Constitution, and the Labour Code ensures trade union immunity for persons who have established, or are in the process of establishing, a trade union. Trade union autonomy is protected inasmuch as unions have the right to: (a) freely draft their statutes and regulations; (b) freely elect their representatives; (c) choose their organic structure, administration and activities; and (d) formulate their programme of action. (Attached to the Government’s reply are statistics showing the numbers of organizations established in various years, as follows: 200 trade unions, 21 federations, three confederations and two central organizations (centrales) in 2007; 171 trade unions, 26 federations and seven central organizations in 2008; and 44 trade unions, six federations and one confederation in 2009.)
4. 113. The Committee notes this information and in particular the statistics sent by the Government in connection with the number of trade unions established between 2007 and 2009. The Committee recalls that when it examined this case in March 2008 it emphasized that Mr Chávez Mendoza was a trade union official and hence should have enjoyed the particular protection afforded by trade union immunity, according to which a trade union official may not be dismissed without the authorization of the Ministry of Labour, a condition which was not fulfilled in this case. The Committee further recalls that the union official in question was dismissed in July 2007, that he took legal action in this connection, and that section 46 of the Labour Code, quoted by the Government, states that judicial proceedings of this type must be settled within 30 days at the first instance and within 60 days at the second instance (the section also states that these deadlines are mandatory and any judges who fail to respect them may be penalized). In this respect, the Committee deeply deplores the fact that even though nearly three years have elapsed since the dismissal no judicial ruling has been issued in this respect. Consequently the Committee, as it has done in previous cases involving excessive delays in judicial proceedings relating to the dismissal of trade union leaders, urges the Government to take all steps at its disposal, while respecting the independence of the state authorities, to have trade union official Mr Chávez Mendoza reinstated in his post – for example, through informal procedures, good offices or mediation – pending a ruling from the judicial authority on his dismissal. The Committee also recalls that justice delayed is justice denied and firmly expects the judicial authority to issue a ruling in the very near future. The Committee requests the Government to keep it informed in this respect.