REPRESENTATION (article 24) - NICARAGUA - C095, C117, C122 - 1995

Report of the Committee set up to examine the representation made by the Latin American Central of Workers (CLAT) under article 24 of the ILO Constitution, alleging non-observance by Nicaragua of the Protection of Wages Convention, 1949 (No. 95), the Social Policy (Basic Aims and Standards) Convention, 1962 (No. 117) and the Employment Policy Convention, 1964 (No. 122)

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. I. Introduction
2. 1. By a letter dated 27 May 1994, the Latin American Central of Workers (CLAT) made a representation under article 24 of the Constitution of the International Labour Organisation, alleging non-observance by Nicaragua of the Protection of Wages Convention, 1949 (No. 95), the Social Policy (Basic Aims and Standards) Convention, 1962 (No. 117), and the Employment Policy Convention, 1964 (No. 122).
3. 2. The three Conventions in question were ratified by Nicaragua respectively on 1 March 1976 (No. 95) and on 1 October 1981 (Nos. 117 and 122), and entered into force for this country one year later, as stipulated in the Conventions, i.e. on 1 March 1977 for Convention No. 95 and 1 October 1982 for Conventions Nos. 117 and 122, respectively.
4. 3. The relevant provisions of the ILO Constitution concerning the submission of representations are as follows:
5. Article 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
7. Article 25
8. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
9. 4. The procedure to be followed in case of representation is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session (March 1980).
10. 5. In conformity with article 2, paragraph 1, of the Standing Orders, the Director-General brought the representation before the Officers of the Governing Body.
11. 6. At its 261st Session (November 1994), the Governing Body, on the recommendation of its Officers, decided that the representation was receivable and set up a committee to examine it, composed of Mr. Antonio Ducreux (Government member, Panama; Chairperson), Mr. Walter Durling (Employer member) and Mr. Richard Falbr (Worker member).
12. 7. In accordance with article 4, paragraph 1(a) and (c), of the Standing Orders, the Committee invited the Government to make its observations on the representation by 28 February 1995.
13. 8. The Government submitted its observations on the representation in a communication dated 18 May 1995. (Endnote 1) The Committee met in Geneva on 6 November 1995 to examine the representation as well as the observations.
14. II. Examination of the representation
15. 1. Allegations made by the Latin American Central of Workers (CLAT)
16. 9. In this representation, the Latin American Central of Workers (CLAT) alleges that the Government of Nicaragua has not ensured the application of the obligations contained in the three ratified Conventions, namely the Protection of Wages Convention, 1949 (No. 95), the Social Policy (Basic Aims and Standards) Convention, 1962 (No. 117), and the Employment Policy Convention, 1964 (No. 122), (Endnote 2) as regards some national enterprises and in particular the La Candelaria banana plantation.
17. 10. The facts of the case are as follows: according to the Latin American Central of Workers, workers at the La Candelaria banana plantation have either not received their wages or been paid late since June 1993. Likewise, information available suggests that the company has been buying bananas at a cheaper price from other countries in the region and selling them later as their own produce which, according to the CLAT, is detrimental to national employment and to the workers themselves at La Candelaria.
18. 11. In order to verify in situ the working conditions at La Candelaria, and at the request of the Nicaraguan Workers' Central (CTN), the Commission of Labour and Corporate Issues of the National Assembly visited the La Candelaria plantation and noted the following: (Endnote 3) (a) the enterprise had not complied with the labour authorities' orders to reinstate a large number of dismissed workers; (b) over 600 workers had not received their wages for more than eight months; and (c) the enterprise had had the water and electricity supplies cut off and the schools closed, which had made a harmful effect on the health and living conditions of the workers and their families. It also pointed out that, although the company was invited to present its version of events to the Commission, this was never submitted.
19. 12. As a result of the above, the CLAT considers that there is a case for non-observance of the freedom of workers to dispose of their wages, the protection of these wages against attachment and payment of wages at regular intervals (Articles 6, 10 and 12 of Convention No. 95). The CLAT also considers that the obligation that measures should be taken to ensure a minimum standard of living, as well as ensuring the proper payment of all wages earned and control thereof, has been infringed (Articles 5 and 11 of Convention No. 117). Finally, the CLAT considers that the Government is, as a consequence of these actions, in open violation of Convention No. 122, the aim of which is to stimulate the economic growth and development of the countries that have ratified it.
20. 13. On 10 June 1994 the CLAT sent a new communication to the ILO in which it highlighted the continuing state of affairs referred to in its first communication and drew attention to physical aggression and death threats directed at workers and union leaders of the enterprise, as well as a strike by La Candelaria workers since April. (Endnote 4) On 6 September 1994 the CLAT sent the ILO an information bulletin from the Nicaraguan Workers' Central (CTN) on the participation of the CTN in the ILO and once again emphasized the gravity of the situation and the fact that there had been no change.
21. 14. The CLAT states that it sent the Governing Body of the ILO a copy of a Statement of Commitments signed by the workers and the company in question on 20 December 1994, under the mediation of the Nicaraguan Centre for Human Rights. The CLAT considers that this Statement constitutes only a partial solution to the dispute referred to in the representation in that the levels of compensation agreed upon are below the legally established level and it does not solve the problem of the loss of employment of workers concerned, which is widespread in the region. Taking into account the inability of the Government of Nicaragua to enforce compliance with labour agreements as illustrated by the above-mentioned events, they maintain the representation asking the Governing Body to verify what was agreed upon in the Statement of Commitments.
22. 2. The Government's observations
23. 15. In its communication dated 18 May 1995, the Government indicates that, in its opinion, the Statement of Commitments signed by the representatives of the enterprise and the workers has resolved the situation which gave rise to the representation. It therefore considers that the representation before the Governing Body is no longer relevant.
24. III. Conclusions of the Committee
25. 16. In its observations of 18 May 1995, the Government states that the signing of the Statement of Commitments by both employers and workers of the La Candelaria plantation has by itself resolved the situation which gave rise to the representation. Nevertheless, the CLAT considers that the Statement only partly deals with the problem and does not resolve underlying concerns such as loss of employment. In this context, the Committee points out that a possible solution, in accordance with national law and practice, to certain contentious issues in an enterprise does not per se resolve the problems that might exist with the general application of Conventions Nos. 95, 117 and 122 in Nicaragua. Therefore, it is the Committee's duty to review both the present issues and the allegations that have been made in order to determine whether they are being properly applied.
26. (a) The situation as regards the Protection of Wages Convention, 1949 (No. 95)
27. 17. The Protection of Wages Convention (No. 95) prescribes various procedures and guarantees to safeguard the idea of remuneration due by virtue of a contract of labour, which, in Article 11, paragraphs 1 and 2, it looks upon as constituting a privileged debt. From this standpoint every country that has ratified this Convention should, using the machinery laid down in the Convention, at least be able to guarantee adequate protection which will allow the worker to receive "the remuneration or earnings ... which are payable in virtue of a written or unwritten contract of employment by an employer to an employed person for work done or to be done or for services rendered or to be rendered" (Article 1).
28. 18. Nicaragua, having ratified Convention No. 95, is committed to setting up, both in its law and in practice, an adequate system of protection that permits wages to be paid regularly, with no deductions, attachment or limitations other than those provided for in the country's legislation. Article 82 of the political Constitution accordingly guarantees equal remuneration, in legal tender, and the prohibits attachment of the minimum wage, while the Labour Code of Nicaragua establishes in article 70 et seq. a whole series of principles aimed at guaranteeing that wages are paid on time and in due form. Regarding the payment of wages at regular intervals provided for in Article 12, paragraph 1, of Convention No. 95, section 70 of the Code stipulates that "the parties shall fix the period of time for the payment of wages, which shall be no greater than one week for day labourers, or two weeks for all domestic workers and employees". In order to ensure compliance with the established standards, section 72, paragraph 2, of the Code stipulates that non-payment of wages in the time agreed upon "in addition to the sanctions provided for in the Code ... shall impose an obligation on the employer to pay the worker, for each two-week period following the first, one-tenth more than what was due, unless such non-payment is due to force majeure or unforeseeable circumstances". Similarly, section 352 provides that, in the event of non-compliance with the rules relative to the payment of wages, a cumulative fine of 50 to 500 córdobas will be payable for every week of work where the situation prevails for two or more weeks.
29. 19. In order to ensure the protection of remuneration from attachment and workers' status as privileged creditors sections 75 and 76 of the Labour Code prohibit the assignment of wages and require that workers be treated as privileged creditors of first grade as regards wages due to them in bankruptcy proceedings or judicial liquidation. Section 78 of the Code is based on the idea embodied in the national Constitution that the minimum wage should not be attached.
30. 20. Taking all of the above into account, the Committee considers that this is not so much a problem of legal provisions or incompatibility of national legislation with the Convention, but rather, as can be inferred from the CLAT's representation, the failure to comply in practice with the obligations arising from the provisions of Convention No. 95.
31. 21. After having reviewed the facts and the allegations presented by both parties, the Committee can only come to the conclusion that the wages of the workers at the La Candelaria plantation have not been paid for a very long period of time (some eight months). This is backed by the Commission of Labour Affairs report of 5 February and has been tacitly recognized by point No. 3 of the Statement of Commitments concluded in December 1994, in so far as it provides for the payment of 30,000 córdobas in constant terms as compensation. The Committee considers that, at least for the enterprise in question, the Government, through the body responsible for supervising the application of labour standards (the Labour Inspectorate, according to section 336 of the Labour Code), did not fulfil the requirements of Articles 12 and 15, paragraph (c), of Convention No. 95, inasmuch as it did not guarantee the regular payment of wages or initiate the proceedings for non-compliance in this area laid down by national law.
32. 22. As regards the allegation of non-compliance with Articles 6 and 10 to be found in the representation, the Committee has no information that would allow it to judge whether there has been an attachment or assignment of wages in legal or bankruptcy proceedings, nor is there any specific action that allows it to conclude that the employers have restricted the free disposal by workers of their wages.
33. 23. In the light of the foregoing considerations, and although the Committee notes that the wage dispute has now been resolved in accordance with the Statement of Commitments, the Committee considers that Article 12, paragraph 1, of Convention No. 95 has not been applied as regards payment of wages to some of the workers of the La Candelaria plantation, in so far as the penalties prescribed in sections 72 and 352 of the Labour Code in cases of non-compliance were not initiated by the competent authorities.
34. 24. In order to obviate a recurrence of this situation in the future and in the light of Articles 12, paragraph 1, and 15, subparagraph (c), of Convention No. 95, the Committee emphasizes the need for the Government to take the necessary measures to guarantee compliance by all enterprises with the stipulated requirements, and advises that the requirements of national legislation be effectively put into practice.
35. 25. To verify effective compliance with the requirements of Articles 12, paragraph 1, and 15, item (c), of Convention No. 95, the Committee requests the Government to send the full details required to monitor progress in this area in the application of the said Convention under article 22 of the ILO Constitution.
36. (b) The situation as regards the Social Policy
37. (Basic Aims and Standards) Convention, 1962 (No. 117)
38. 26. As stated in Article 1, paragraph 1, of Convention No. 117, its aim is that "all policies shall be primarily directed to the well-being and development of the population and to the promotion of its desire for social progress". The principle objective in the planning of economic development shall be "the improvement of standards of living" (Article 2).
39. 27. Article 5 of Convention No. 117 accordingly provides that "measures shall be taken to secure ... wage-earners conditions which will give them scope to improve living standards by their own efforts and will ensure the maintenance of minimum standards of living"; Article 5, paragraph 2, states that "in ascertaining the minimum standards of living" factors such as essential family needs, food, etc., shall be taken into account. Article 11 requires that the necessary measures shall be taken to ensure the proper payment of all wages earned.
40. 28. As is evident from the above, the problem in the application of Convention No. 117 is basically the same as that reviewed by the Committee in connection with Convention No. 95, i.e. the non-payment of wages due. As the Committee has already stated, the sole conclusion it can draw from the facts and allegations presented is that the workers of the La Candelaria plantation have not been paid their wages, which is an infringement of Article 11 of Convention No. 117. As to whether Article 5 of the Convention is being applied, the Committee possesses no information that permits it to state that the relevant obligations have not been fulfilled.
41. 29. In the light of the foregoing, the Committee refers to the statements and comments set out in paragraphs 21 and 23 of this report and considers that there is a case of non-compliance with Article 11, paragraph 1, of Convention No. 117. In order to obviate a recurrence of this situation in the future, and as recommended in respect of Convention No. 95, the Committee emphasizes the need for the Government to take the necessary measures to guarantee compliance by all enterprises with the requirements stipulated in this Convention and advises that the requirements of national legislation be effectively put into practice. The Committee refers back to the conclusions set out in paragraph 25 of this report.
42. (c) Situation as regards the Employment Policy Convention, 1964 (No. 122)
43. 30. The aim of Convention No. 122 is that each Member that has ratified it shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment, within the framework of a coordinated economic and social policy and in consultation with representatives of the persons affected in its formulation and execution.
44. 31. Considering the above, the Committee notes that the events referred to by the CLAT involve only one enterprise. It also observes that an increase in dismissals could provoke an increase in unemployment on the labour market, which would not facilitate full compliance with the Convention. Nevertheless, the Committee considers that this situation, which involves what happened between one employer and his workers, does not prevent the Government declaring and pursuing an active employment policy in the sense established by the Convention.
45. 32. Consequently, the Committee considers that the tenor of the allegations presented by the CLAT does not show any grounds pointing to non-compliance with Convention No. 122.
46. IV. The Committee's recommendations
47. 33. The Committee recommends that the Governing Body:
48. (a) approve the present report and, in particular, the conclusions presented in paragraphs 20 to 25, and 29, namely that there is non-compliance with the obligation to pay wages regularly and on time which is contrary to Articles 12 and 15, item (c), of the Protection of Wages Convention, 1949 (No. 95), and to Article 11 of the Social Policy (Basic Aims and Standards) Convention, 1962 (No. 117);
49. (b) invite the Government of Nicaragua, having noted the conclusions set out in paragraphs 20, 21, 23, 24 and 29, to adopt the necessary measures:
50. (i) to ensure that legislation on this subject, and in particular the provisions of the Labour Code relating to the protection of wages, be applied in all enterprises in accordance with the machinery and procedures provided for in national legislation;
51. (ii) to ensure that the national supervisory bodies in charge of overseeing compliance with standards relating to the minimum wage carry out their activities in accordance with national legislation;
52. (c) invite the Government of Nicaragua to include, in its reports submitted under article 22 of the Constitution on the application of Conventions Nos. 95 and 117, full information on the measures taken, in accordance with the above recommendations, to ensure compliance with these Conventions, so that the Committee of Experts on the Application of Conventions and Recommendations can follow up the issue;
53. (d) declare closed the procedure initiated as a result of this representation.
54. Endnote 1
55. In this communication the Government referred to a prior communication on the same subject dated 16 January 1995, which is not on file.
56. Endnote 2
57. The representation has been reproduced as an appendix to the report of the Officers of the Governing Body on its receivability (GB.261/14/11).
58. Endnote 3
59. The report of the Commission is attached to the report of the Officers of the Governing Body on the receivability of this representation (GB.261/14/11).
60. Endnote 4
61. A copy of this communication has been sent to the Committee on Freedom of Association for it to consider whether those clauses contained in Conventions Nos. 87 and 98, on freedom of association and protection of the right to organize and on the right to organize and collective bargaining have been complied with. This complaint will be dealt with by the Committee at its next meeting in November 1995.