Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 356, Mars 2010

1. 1000. The Committee examined this case at its May–June 2009 session, when it presented an interim report to the Governing Body [see 354th Report, paras 993–1018, approved by the Governing Body at its 305th Session].
2. 1001. The Confederation of Trade Union Unity (CUS) presented new allegations in a communication dated 12 March 2009.
3. 1002. The Government sent its observations in a communication dated 23 July 2009.

A. Previous examination of the case

1. 1003. When it examined this case at its May–June 2009 meeting, the Committee made the following recommendations [see 354th Report, para. 1018]:
2. (a) The Committee stresses the importance of the allegations and regrets that the Government has not sent its observations on this case despite having been invited to do so on several occasions and despite an urgent appeal in that respect; the Committee urges the Government to be more cooperative in the future with regard to its procedural rules.
3. (b) The Committee urges the Government to promote dialogue and negotiation between the Ministry of Transport and the trade unions in order to overcome the various problems that have been raised in this case – including with regard to compliance with the current collective agreement and the bipartite agreement on wage adjustment. The Committee requests the Government to keep it informed in this regard. In these circumstances, the Committee considers it necessary to conduct an independent investigation into the allegations that should cover – with particular attention – the alleged failure by the Ministry of Transport to comply with the judicial and administrative decisions and judgements in favour of the unionists.
4. (c) The Committee urges the Government to send without delay detailed observations on the new allegations by the complainant organization, also including copies of the administrative and judicial decisions concerning the different allegations.
5. (d) Finally, in the absence of any reply from the Government concerning the recommendations it made in May–June 2008, the Committee reiterates the recommendations it made at that time:
6. – With regard to the alleged disregard for and suspension of the bilateral agreement reflected in a memorandum signed on 28 March 2005 between workers and the Ministry of Transport and Infrastructure with regard to the recognition by way of a salary adjustment of the equivalent of 80 additional hours per month for all the drivers, the Committee, while noting that the MTI and the trade union organizations concerned agreed to extend the validity of the collective agreement in the MTI, expects that this matter will be the object of future negotiations if it has not been dealt with yet in the current collective agreement.
7. – With regard to the alleged dismissal of Mr José David Hernández Calderón, secretary of promotion and advertising of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC) on 4 May 2007, the Committee urges the Government to implement the administrative resolutions and to take the necessary measures without delay to ensure that the dismissed union official is reinstated in his post, with payment of outstanding wages and other benefits. The Committee requests the Government to keep it informed in that regard.
8. – With regard to the alleged persecution and harassment in order to later on proceed to the dismissal of Mr González Gutiérrez, finance secretary of the SINATRA–DGTT–MTI, the Committee requests the Government to keep it informed of any legal appeal that the union official, Mr González Gutiérrez, may have presented against the resolution of the General Labour Inspectorate.
9. – The Committee requests the Government to provide information on the specific reasons behind the request to cancel the employment contract of the union official, Mr Javier Ruiz Alvarez, and to inform it of the final outcome of the proceedings before the Departmental Labour Inspectorate.
10. – The Committee requests the Government to communicate its observations with regard to the following allegations: (i) dismissal, without respect for trade union immunity or legal process, of Mr José María Centeno, leader of the SINATRA–DGTT–MTI on 26 April 2007; (ii) transfer of Mr Marcos Mejía López, a member of the Executive Committee of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC); and (iii) workplace harassment of union official Mr Alvaro Leiva Sánchez, Secretary for Labour Matters of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC) – he was dismissed on 11 May and reinstated the same day and is currently again at risk of dismissal.
11. B. New allegations
12. 1004. In its communication dated 12 March 2009, the CUS states that the Government has not complied with the earlier recommendations of the Committee, since the employees of the Ministry of Transport and Infrastructure (MTI) are still confronted by the abuse of authority in the form of violations of their freedom of association. The CUS alleges that the current administration of the Ministry is infringing article 12 of the collective agreement in force concerning the resources that trade unions need to carry out their activities (computer with access to Internet, printer, office supplies, use of a vehicle, etc.) and that these facilities are made available only to a trade union that follows the party line. The CUS also states that stability of employment is not respected in the MTI and that instability is encouraged regardless of workers’ competence and years of service. It alleges that the following employees have been dismissed for anti-union reasons: Ms Perla Marina Corea Zamora, Secretary-General of the Independent Workers Trade Union of the MTI, Ms Yerigel Zúñiga Izaguirre, the finance secretary of that union, Lila Carolina Alvarado Muñoz, first spokesperson of the watchdog unit of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC), Mr Freddy Antonio Velásquez Luna, Secretary-General of the MTI Workers’ Trade Union (SITRAMTI) and Secretary-General of the Democratic Federation of Public Service Workers (FEDETRASEP), Mr Jorge Boanerges Cruz Berríos, organization and information secretary of SITRAMTI and spokesperson for FEDETRASEP, Mr Byron Antonio Tercero Ramos, organization, records and agreements secretary of the union SINTESESIP–MTI and Mr Francisco Zamora Vivas, finance secretary of SITRAMTI.
13. C. The Government’s reply
14. 1005. In a communication dated 29 June 2009, the Government sent its observations in response to the recommendations formulated by the Committee in June 2008 and June 2009.
15. 1006. With regard to the memorandum dated 18 March 2005 concerning the payment of 80 additional hours on a permanent basis, whether worked or not, the Government states that on 14 July 2005 a collective agreement was signed between workers’ organizations and the MTI, which in clause 35 stipulates that “additional hours shall be paid to workers when so authorized by their immediate chief, payable in the first week of the month after they have occurred” and in clause 44 establishes that the undertaking “shall every year pay all workers a bonus based on the average number of additional hours that were due for the three previous months, irrespective of their entitlement to an end-of-year bonus”. The collective agreement thus rendered null and void the terms established unilaterally in the memorandum.
16. 1007. Concerning Mr José David Hernández Calderón, a senior officer of the SEMTIAC, whose reinstatement in his post with payment of outstanding wages and other benefits the Committee requested, the Government states that the request submitted by the union official on 24 May 2009 is currently before the First District Labour Court of Managua, where it is awaiting the Court’s ruling. The Government states that it will in due course inform the Committee of the decision taken by the Court.
17. 1008. With respect to Mr Guillermo González Gutiérrez, the Government states that, in a decision rendered on 22 January 2008, the Civil Chamber No. 1 of the Court of Appeals of the constituency of Managua declared that his appeal for legal protection was irreceivable and dismissed the case.
18. 1009. As regards Mr Javier Ruiz Álvarez, the Government states that in a notarized, written statement addressed to the ad hoc Civil Court, he withdrew his appeal. Mr Ruiz Álvarez is currently working at the MTI in the General Directorate of Water Transport.
19. 1010. Relating to the alleged dismissal without respect for trade union immunity or legal process of Mr José María Centeno, leader of the National Workers’ Trade Union of the DGT–MTI (SINATRA–DGTT–MTI), on 26 April 2007, the Government states that it requested information on the subject from the MTI, which informed it that Mr Centeno had been working as the MTI’s departmental delegate for transport in Nueva Segovia and that his contract, which was for a position of trust, had been terminated in accordance with article 14 of the Civil Service and Administrative Career Act.
20. 1011. With regard to the alleged transfer of Mr Marcos Mejía López, a member of the Executive Committee of SEMTIAC, the Government states that he had lodged an appeal for legal protection against alleged threats of dismissal with Civil Chamber No. 1 of the Court of Appeals of the constituency of Managua. Subsequently, on 30 January 2008, the secretariat of the Civil Chamber informed the Director of Human Resources of the MTI of the decision that had been handed down in connection with the appeals for legal protection involving trade unions of the MTI and directed against MTI officials. By decision of 2.11 p.m. of 17 May 2007, the Civil Chamber informed Mr Mejía López that he needed to ratify his appeal for legal protection in person or through a duly appointed specialized lawyer. Mr Mejía López was notified of this decision at 3.30 p.m. on 28 May 2007 but failed to comply with the order to appear issued by the Civil Chamber, which in accordance with article 28 of the Legal Protection Act decided to treat the matter as if the appeal had not been lodged and so closed the case.
21. 1012. Concerning the alleged workplace harassment of union official Mr Alvaro Leiva Sánchez, Secretary for Labour Affairs of SEMTIAC, who is said to have been dismissed on 11 May 2007 and reinstated the same day and to be again at risk of dismissal, the Government states that it requested information from the MTI, which indicated that the Constitutional Chamber of the Supreme Court of Justice handed down its decision on 16 March 2009. After reviewing the administrative action taken by the impugned MTI officials, the Constitutional Chamber found that, far from having been threatened with dismissal, Mr Leiva Sánchez had been encouraged by the MTI to take part in trade union activities abroad, despite the fact that the file on the case listed a number of memorandums drawing attention to his negligence and irresponsibility in the performance of his duties, without him actually having been dismissed, since he was still employed at the MTI. There are therefore no valid grounds for the appeal for legal protection, or technically speaking, in Mr Leiva Sánchez’s case two of the criteria for lodging an appeal for legal protection are missing, namely, direct, personal and actual (rather than potential) prejudice, and consequently a violation of the Political Constitution. That being so, the Constitutional Chamber is of the opinion that the impugned officials acted in keeping with the law and that, if they resorted to disciplinary measures, it was because the complainant engaged in activities that had nothing to do with the free exercise of his trade union duties, and that he is in no imminent danger of being dismissed for being a member of the Executive Committee of the trade unions at the MTI but merely at the early stages of a procedure that is provided for and authorized by the law. The Constitutional Chamber of the Supreme Court of Justice decided that the appeal for legal protection lodged by Mr Leiva Sánchez in his capacity as Secretary-General of the SEMTIAC was therefore dismissed.
22. 1013. With respect to the new allegations presented by the CUS on 12 March 2009, the Government states the following:
23. – the case of Ms Perla Marina Corea Zamora, port engineer in the port standards department of the MTI’s General Directorate of Water Transport, is currently awaiting a decision by the Constitutional Chamber of the Supreme Court of Justice, as the appeal lodged by the complainant on 2 July 2008 was contested by the MTI’s division of human resources on 29 August 2008;
24. – the case of Ms Yerigel Zúñiga Izaguirre is currently pending with the Constitutional Chamber of the Supreme Court of Justice; the file on the case contains the MTI division of human resources’ response of 23 December 2008 to the appeal lodged by Ms Zúñiga Izaguirre on 14 November 2008;
25. – the case of Ms Lila Carolina Alvarado Muñoz has been dealt with at two levels of jurisdiction: (i) the Standing Committee on Human Rights (CPDH) and the Office of the Public Prosecutor, which have both ruled in favour of the MTI; and (ii) the Constitutional Chamber of the Supreme Court of Justice, where the case is currently pending; the file contains the reply on 27 June 2008 of the division of human resources of the MTI concerning the appeal for legal protection lodged by Ms Alvarado Muñoz on 21 May 2008;
26. – the case of Mr Freddy Antonio Velásquez Luna, Mr José Boanerges Cruz Berríos, Mr Byron Antonio Tercero Ramos and Mr Francisco José Zamora is before the Constitutional Chamber of the Supreme Court of Justice.

D. The Committee’s conclusions

1. 1014. The Committee notes that the Government has sent its observations on pending issues and on the new allegations presented by the complainant organization.
2. 1015. With regard to the alleged disregard for and suspension of the bilateral agreement reflected in a memorandum signed on 28 March 2005 between the workers and authorities of the MTI relating to the recognition by way of a salary adjustment of the equivalent of 80 additional hours per month for all the drivers, the Committee had noted that the MTI and the trade union organizations concerned had agreed to extend the validity of the collective agreement in the MTI and expected that the matter would be the object of future negotiations if it had not been dealt with yet in the collective agreement in force. The Committee notes the Government’s statement that: (1) on 14 July 2005 a collective agreement was signed between workers’ organizations and the MTI, clause 35 of which stipulates that additional hours are paid to workers when so authorized by their immediate chief, payable in the first week of the month after they have occurred, and clause 44 of which establishes that the undertaking pays all workers every year a bonus based on the average number of additional hours that were due for the three previous months, irrespective of their entitlement to an end-of-year bonus; and (2) the collective agreement thus rendered null and void the terms established unilaterally in the memorandum. The Committee takes note of this information with interest.
3. 1016. Concerning the alleged dismissal of Mr José David Hernández Calderón, secretary of promotion and advertising of the SEMTIAC on 4 May 2007, the Committee had urged the Government to implement the administrative resolutions and to take the necessary measures without delay to ensure that the dismissed union official was reinstated in his post, with payment of outstanding wages and other benefits. The Committee notes the Government’s statement that the request submitted by the union official on 24 May 2009 is currently before the First District Labour Court of Managua, where it is awaiting the Court’s ruling, and that the Government will in due course inform the Committee of the decision taken by the Court. The Committee requests the Government to keep it informed of the decision handed down in this regard.
4. 1017. With respect to the alleged persecution and harassment in order to later proceed to the dismissal of Mr González Gutiérrez, finance secretary of the SINATRA–DGTT–MTI, the Committee had requested the Government to keep it informed of any legal appeal that the union official, Mr González Gutiérrez, might have presented against the resolution of the General Labour Inspectorate. The Committee notes the Government’s statement that, in a decision rendered on 22 January 2008, the Civil Chamber No. 1 of the Court of Appeals of the constituency of Managua declared that his appeal for legal protection was irreceivable and dismissed the case. In the light of this information and the fact that the complainant organization has not commented on the dismissal of the case, the Committee will not pursue its examination of these allegations any further.
5. 1018. As regards the alleged request to cancel the contract of employment of union official Javier Ruiz Álvarez, the Committee had requested the Government to provide information on the specific reasons behind that request and to keep it informed of the final outcome of the proceedings before the Departmental Labour Inspectorate. The Committee notes the Government’s statement that Mr Ruiz Álvarez withdrew the appeal that he had lodged with the courts. The Committee takes note with interest that he is currently working at the MTI in the General Directorate of Water Transport.
6. 1019. Relating to the alleged dismissal without respect for trade union immunity or legal process of Mr José María Centeno, leader of the SINATRA–DGTT–MTI on 26 April 2007, the Committee notes the Government’s statement that the MTI had informed it that Mr Centeno’s contract, which was for a position of trust, had been terminated in accordance with article 14 of the Civil Service and Administrative Career Act. While the Committee appreciates that workers in positions of trust can be freely appointed and removed, it observes that the Government does not deny that Mr Centeno held a trade union post and recalls the following: “One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom.” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 799]. In these circumstances, the Committee calls upon the Government to conduct an inquiry into the reasons for terminating the contract of union official Mr Centeno and, in the event it is found that it was due to his legitimate trade union activities, to endeavour to have him reinstated.
7. 1020. With regard to the alleged transfer of Mr Marcos Mejía López, member of the Executive Committee of SEMTIAC, the Committee notes the Government’s statement that Mr Mejía López had lodged an appeal for legal protection against alleged threats of dismissal with Civil Chamber No. 1 of the Court of Appeals of the constituency of Managua but that since he did not appear in court to ratify his appeal, it was decided to treat the matter as if the appeal had not been lodged. The Committee observes that the Government does not deny that union official Mr Mejía López was transferred, and calls on it to take the necessary measures to conduct an inquiry into the reasons for his transfer and, in the event it is found that the transfer was due to his exercise of trade union activities, to ensure that he is transferred back to his previous post.
8. 1021. Concerning the alleged workplace harassment of union official Mr Alvaro Leiva Sánchez, secretary for labour affairs of the SEMTIAC, who is said to have been dismissed on 11 May 2007 and reinstated the same day and to be again at risk of dismissal, the Committee notes the Government’s statement that the union official had lodged an appeal for legal protection with the judicial authorities and that the Constitutional Chamber of the Supreme Court of Justice, in ruling on the matter, found that, far from receiving threats of dismissal, the complainant had been encouraged by the institution to take part in trade union events abroad and had eventually dismissed the appeal. In the light of this information, the Committee will not pursue the examination of this allegation any further.
9. 1022. With respect to the alleged anti-union dismissals of Ms Perla Marina Corea Zamora, Secretary-General of the Independent Workers Trade Union of the MTI, Ms Yerigel Zúñiga Izaguirre, the same union’s finance secretary, Ms Lila Carolina Alvarado Muñoz, first spokesperson of the watchdog unit of the SEMTIAC, Mr Freddy Antonio Velásquez Luna, Secretary-General of the SITRAMTI and Secretary-General of FEDETRASEP, Mr Jorge Boanerges Cruz Berríos, organization and information secretary of SITRAMTI and spokesperson for the FEDETRASEP, Mr Byron Antonio Tercero Ramos, organization, records and agreements secretary of SINTESESIP–MTI and Mr Francisco Zamora Vivas, finance secretary of the SITRAMTI, the Committee notes the Government’s statement that they had lodged appeals which were awaiting the decision of the Constitutional Chamber of the Supreme Court of Justice. The Committee expects that the judicial authority will shortly hand down its decision and requests the Government to keep it informed of the outcome.
10. 1023. Finally, as regards the allegation that the current administration of the MTI is infringing article 12 of the collective agreement in force concerning the resources that trade unions need to carry out their activities (computer with access to Internet, printer, office supplies, use of a vehicle, etc.) and that these facilities are made available only to a trade union that follows the party line, the Committee recalls that “agreements should be binding on the parties” [see Digest, op. cit., para. 939] and notes that both the authorities and the employers must avoid any form of discrimination among trade union organizations that have signed the same collective agreement. That being so, the Committee calls on the Government to conduct an inquiry into the matter and, should it find the allegation to be true, to take steps to bring the parties together and ensure full compliance with the clauses of the collective agreement cited by the complainant organization.