COMPLAINT (article 26) - 1987 - NICARAGUA - C087, C098, C144

1. Henri Georget, Employers' delegate, Niger, 2. Johan von Holten, Employers' delegate, Sweden, 3. Hiroshi Tsujino, Employers' delegate, Japan, 4. Javier Ferrer Dufoll, Employers' delegate, Spain, 5. Arthur Joao Donato, Employers' delegate, Brazil, 6. Raoul Inocentes, Employers' delegate, Philippines, 7. Wolf Dieter Lindner, Employers' delegate, Federal Republic of Germany, 8. Tom D Owuor, Employers' delegate, Kenya, 9. Ray Brillinger, Employers' delegate, Canada

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REPORT OF THE COMMISSION OF INQUIRY appointed under article 26 of the Constitution to examine the observance by Nicaragua of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

REPORT OF THE COMMISSION OF INQUIRY appointed under article 26 of the Constitution to examine the observance by Nicaragua of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

Report of the Commission of Inquiry in PDF (1991)

Complaint Procedure

I. THE COMPLAINT AND THE PROCEEDINGS
CHAPTER 1
FILING OF THE COMPLAINT AND APPOINTMENT OF THE COMMISSION
Filing of the complaint
1. By a letter dated 17 June 1987 addressed to the Director-General of the International Labour Office, several Employers' delegates attending the 73rd Session (1987) of the International Labour Conference, filed a complaint under article 26 of the Constitution of the International Labour Organisation (ILO) against the Government of Nicaragua, concerning the infringement of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The complaint is worded as follows:
Sir,
We the undersigned Employer delegates to the 73rd Session of the International Labour Conference hereby lodge a complaint under article 26 of the Constitution of the International Labour Organisation to the effect that the Government of Nicaragua has failed to secure effective observance of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). Nicaragua, a Member of the ILO, ratified Conventions Nos. 87 and 98 in 1967 and Convention No. 144 in 1981.
We base the complaint on the following facts:
I. In respect of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
Since 1981 at least 21 complaints have been lodged with the ILO by workers' and employers' organisations in respect of violations by the Government of Nicaragua of its obligations under Convention No. 87. These violations consisted in murder (Case No. 1007), physical aggression (Cases Nos. 1031, 1129, 1169, 1185, 1298), torture (Cases Nos. 1283, 1344), arbitrary arrests (Cases Nos. 1007, 1031, 1047, 1084, 1129, 1148, 1169, 1185, 1208, 1283, 1298, 1344, 1351), breaking into homes (Cases Nos. 1129, 1148), sacking of offices (Cases Nos. 1129, 1298), confiscation of property (Case No. 1344), travel restrictions (Cases Nos. 1103, 1114, 1129, 1317, 1351), violation of freedom of expression (Cases Nos. 1084, 1129, 1283) and many other matters including non-recognition of independent organisations of workers until complaints were made to the ILO. Any organisation of employers or workers that does not submit to the authority of the Sandinist National Liberation Front (FSLN) is subjected to repression by the Government either through its officials or through organised mobs.
Nicaragua has been virtually under a state of emergency for several years. This state of emergency is constantly extended, most recently by Decree No. 245 of 9 January 1987. The state of emergency is being used by the Government to suppress all rights and freedoms essential to the effective observance of Convention No. 87. In fact it is used to suppress all opposition to the ruling interests.
Further, a new Constitution was proclaimed in 1987 which implicitly denies to employers the right to associate which they had had previously, while according that right to many other categories of persons. This is in clear violation of Article 2 and paragraph 2 of Article 8 of Convention No. 87.
II. In respect of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)
Decree No. 530, issued by the Government on 24 September 1980, has since that date subjected collective agreements to the approval of the Ministry of Labour for reasons of economic policy, and this effectively renders meaningless the freedom to bargain collectively. Despite the fact that competent bodies of the ILO have repeated that this is in violation of Convention No. 98, the Government has done nothing to correct the situation. Wages in particular cannot be the subject of collective bargaining as they are determined by the National Labour and Wages Organisation System which classifies every conceivable form of employment and specifies the wages for each of them. This violation of Article 4 of the Convention has been the subject of a recommendation by the Committee of Experts on the Application of Conventions and Recommendations.
III. In respect of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144)
The most representative organisation of employers in Nicaragua is the Consejo Superior de la Empresa Privada (COSEP). COSEP is covered by Article 1 of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). However, the Government has failed to consult COSEP on the procedures to ensure effective consultations envisaged in Article 2 of the instrument. The Government has, contrary to what it states in its report on the application of the Convention, also failed to consult COSEP on the matters covered by Article 5 of the Convention. The Government has respected none of its obligations under the Convention as far as consultations with COSEP are concerned.
The undersigned request that this complaint be considered and reported upon by a Commission of Inquiry as envisaged in paragraph 3 of article 26 of the Constitution of the ILO, especially since the Government ignores the recommendations of the Freedom of Association Committee of the Governing Body and the Committee of Experts on the Application of Conventions and Recommendations, which have already pronounced themselves on all the above matters.
Yours sincerely,
(Signed)
Henri Georget,
Employers' delegate, Niger.
Raoul Inocentes,Employers' delegate, Philippines.
Johan von Holten,
Employers' delegate, Sweden.
Wolf Dieter Lindner,
Employers' delegate, Federal Republic of Germany.
Hiroshi Tsujino,
Employers' delegate, Japan.
Tom D. Owuor,Employers' delegate, Kenya.
Javier Ferrer Dufoll,
Employers' delegate, Spain.
Ray Brillinger,Employers' delegate, Canada.
Arthur Joao Donato,Employers' delegate, Brazil.
2. In two communications received in the ILO on 19 June 1987, Messrs. Roberto Favelevic, Employer delegate of Argentina, and Vincente Bortoni, Employer delegate of Mexico, associated themselves with the complaint.
Provisions of the ILO Constitution relating to complaints concerning the application of ratified Conventions
3. Nicaragua ratified Conventions Nos. 87 and 98 on 31 October 1967 and Convention No. 144 on 1 October 1981. These Conventions entered into force for this country on 31 October 1968 and 1 October 1982 respectively. The complainants, Messrs. H. Georget, J. van Holten, H. Tsujino, J.F. Dufoll, A.O. Donato, R. Inocentes, W.D. Lindner, T.D. Owuor, R. Brillinger, R. Favelevic and V. Bortoni, at the date of presenting their complaint, were Employer delegates of their respective countries to the 73rd Session of the Conference and, as such, were competent to present a complaint under article 26, paragraph 4, of the Constitution of the ILO.
4. The provisions relating to complaints concerning the application of ratified Conventions appear in articles 26 to 29 and 31 to 34 of the Constitution of the ILO and are drafted in the following terms:
Article 26
1. Any of the Members shall have the right to file a complaint with the International Labour Office if it is not satisfied that any other Member is securing the effective observance of any Convention which both have ratified in accordance with the foregoing articles.
2. The Governing Body may, if it thinks fit, before referring such a complaint to a Commission of Inquiry, as hereinafter provided for, communicate with the government in question in the manner described in article 24.
3. If the Governing Body does not think it necessary to communicate the complaint to the government in question, or if, when it has made such communication, no statement in reply has been received within a reasonable time which the Governing Body considers to be satisfactory, the Governing Body may appoint a Commission of Inquiry to consider the complaint and to report thereon.
4. The Governing Body may adopt the same procedure either of its own motion or on receipt of a complaint from a delegate to the Conference.
5. When any matter arising out of article 25 or 26 is being considered by the Governing Body, the government in question shall, if not already represented thereon, be entitled to send a representative to take part in the proceedings of the Governing Body while the matter is under consideration. Adequate notice of the date on which the matter will be considered shall be given to the government in question.
Article 27
The Members agree that, in the event of the reference of a complaint to a Commission of Inquiry under article 26, they will each, whether directly concerned in the complaint or not, place at the disposal of the Commission all the information in their possession which bears upon the subject-matter of the complaint.
Article 28
When the Commission of Inquiry has fully considered the complaint, it shall prepare a report embodying its findings on all questions of fact relevant to determining the issue between the parties and containing such recommendations as it may think proper as to the steps which should be taken to meet the complaint and the time within which they should be taken.
Article 29
1. The Director-General of the International Labour Office shall communicate the report of the Commission of Inquiry to the Governing Body and to each of the governments concerned in the complaint, and shall cause it to be published.
2. Each of these governments shall within three months inform the Director-General of the International Labour Office whether or not it accepts the recommendations contained in the report of the Commission; and, if not, whether it proposes to refer the complaint to the International Court of Justice.
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Article 31
The decision of the International Court of Justice in regard to a complaint or matter which has been referred to it in pursuance of article 29 shall be final.
Article 32
The International Court of Justice may affirm, vary or reverse any of the findings or recommendations of the Commission of Inquiry, if any.
Article 33
In the event of any Member failing to carry out within the time specified the recommendations, if any, contained in the report of the Commission of Inquiry, or in the decision of the International Court of Justice, as the case may be, the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance therewith.
Article 34
The defaulting government may at any time inform the Governing Body that it has taken the steps necessary to comply with the recommendations of the Commission of Inquiry or with those in the decision of the International Court of Justice, as the case may be, and may request it to constitute a Commission of Inquiry to verify its contention. In this case the provisions of articles 27, 28, 29, 31 and 32 shall apply, and if the report of the Commission of Inquiry or the decision of the International Court of Justice is in favour of the defaulting government, the Governing Body shall forthwith recommend the discontinuance of any action taken in pursuance of article 33.
Summary of the measures taken by the Governing Body following the filing of the complaint
5. At its 238th Session (November 1987) the Governing Body had before it a report by its Officers concerning the subject of the complaint. This report included the following passages:
No discussion on the merits of the complaint is admissible at the present stage. It would be inconsistent with the judicial nature of the procedure provided for in article 26 and the following articles of the Constitution that there should be any discussion in the Governing Body on the merits of a complaint while a proposal to refer it to a Commission of Inquiry is pending before the Governing Body and until the Governing Body has before it the observations of the Government against which the complaint is filed, together with an objective evaluation of these observations by an impartial body.
It will be recalled, in this connection, that the Committee on Freedom of Association has been examining various complaints alleging violations of freedom of association in Nicaragua presented by a number of organisations of workers and employers. In some of these cases the Governing Body has already approved interim conclusions reached by the Committee, one case has been adjourned by the Committee pending receipt of the Government's observations. It may also be recalled that the Committee of Experts on the Application of Conventions and Recommendations has recently addressed comments to the Government of Nicaragua concerning the application of the Conventions referred to in the complaint now presented under article 26 of the Constitution, and that the Conference Committee on the Application of Conventions and Recommendations, in 1987, discussed questions concerning the application, in law and practice of Convention No. 87.
The Governing Body has already agreed in the past (154th Report of the Committee on Freedom of Association, paragraph 33) that in cases such as the present one, where various complainants have resorted to the different procedures established by the Organisation concerning the application of Conventions and the protection of trade union rights, it would be desirable to co-ordinate the procedures and to take account of the role entrusted to the Committee on Freedom of Association for the examination of complaints concerning these matters. In the present case the complaint presented by the delegates to the Conference under article 26 of the Constitution mainly concerns questions which are already before the Committee within the context of the special procedure concerning freedom of association. As regards this latter procedure, the Committee will continue to examine the cases pending before it. It would be useful for the Governing Body to have the recommendations of the Committee on these cases and on the complaint under article 26 in order to reach a decision as to what action should be taken concerning the latter complaint.
6. The Governing Body adopted the following decisions on the recommendation of its Officers:
(a) The Government of Nicaragua, as the Government against which the complaint has been filed, should be requested by the Director-General to communicate its observations on the same so as to reach the Director-General not later than 15 January 1988.
(b) The Governing Body should, at its 239th Session, consider, in the light of: (i) the recommendations of the Committee on Freedom of Association concerning the aspects of the complaint relative to freedom of association; (ii) the information which may be furnished by the Government of Nicaragua on the complaint, and (iii) the recommendations of the Committee on Freedom of Association concerning the cases which are still pending before it, whether the complaint should be referred to a Commission of Inquiry.
The Government's replies to the allegations in the complaint
7. The Government's first reply to the allegations made in the complaint submitted under article 26 of the Constitution is contained in a letter dated 5 January 1988. The Government stated that although it was true that several complaints have been presented alleging infringement of freedom of association, it was also true that these matters were closed since the Government had shown that they had nothing to do with freedom of association but involved offences punishable under common law.
8. The Government stated that on 9 January 1987, by virtue of Decree No. 245, it had re-established the state of emergency as a legal means of defence in the war waged by the United States against Nicaragua; enforcement of this state of emergency was thus intended to forestall counter-revolutionary activities, thereby preserving the rights of Nicaraguan citizens. The statement that Decree No. 245 suspended several trade union rights was quite wrong since none of the rights suspended was of a strictly trade union nature. The only suspended right involving labour matters was the right to strike, which is not a trade union right but a right of workers whether or not they belong to a union.
9. The Government stated that the establishment of the state of emergency was in line with the provisions of Article 4 of the International Covenant on Civil and Political Rights and Article 27 of the American Convention of Human Rights. The state of emergency had in no way prevented the development of the trade union movement or the freedom of workers to join occupational organisations. From 1980 to 1986 workers in both town and countryside set up a total of 1,203 trade unions.
10. The Government considered that it was important to recall that the ruling handed down by the International Court of Justice on 27 June 1986 gave fundamental legal support to the Government and to its right to defend its sovereignty, territorial integrity and economic and political independence through the international legal order. According to the Government, it was a policy of aggression against Nicaragua and not the state of emergency that was the cause of the difficult and exceptional circumstances being experienced by Nicaraguan society as a whole. The Government emphasised that it hoped to suspend the state of emergency when the causes underlying it no longer obtained.
11. The Government went on to say that the fact that the right of employers to organise was not embodied in the Constitution was not to be understood as a prohibition since article 49 of the Political Constitution set forth the general principle of the right to organise of all persons in order to defend their interests. Moreover, the employers' right to organise was established in the Labour Code and in the regulations governing occupational associations.
12. As regards Decree No. 530 of 1980, the Government stated that the provisions in question in no way constituted an infringement of the right of employers' and workers' organisations to negotiate collective agreements and, in accordance with the ILO's principle of tripartism, provision was made for the intervention of the Ministry of Labour. The other conditions of employment were negotiated through a conciliation procedure. If the latter broke down, the Ministry of Labour could not impose the terms of a collective agreement on the parties and the matter had to be resolved, during a state of emergency, by the Arbitration Tribunal, a body of the judicial authorities, and, in normal times, through the procedure relating to the right to strike.
13. The national system for organising labour and wages (SNOTS) enables employers and workers to take part in discussing the bases of the content of work in order to determine wages according to criteria of quantity and complexity.
14. Lastly, the Government considered that Convention No. 144 had not been infringed since the consultations referred to by the complainants had taken place with the organisations which the Government, in its sovereignty, considered to be the most representative. Nevertheless, the Government had no objection to consulting the COSEP also in due course.
15. In a further communication, dated 19 January 1988, the Government supplied the text of a communiqué stating that as from 19 January the state of emergency was suspended throughout the country. The Government also stated in this communiqué that it intended to apply Amnesty Act No. 33 as soon as a cease-fire took place and the groups which had taken up arms returned to civilian life. If no such cease-fire took place, the Government would release the persons concerned if the Government of the United States or a Central American government decided to accept them and authorise them to return to Nicaragua when the war ended.
16. In a subsequent communication, dated 28 January 1988, the Government supplied the text of Decrees Nos. 296 abolishing the people's anti-Somoza courts, and 297 lifting the state of emergency throughout the country and restoring the rights and guarantees laid down in the Nicaraguan Constitution.
Procedure before the Governing Body and appointment of the Commission of Inquiry
17. The Governing Body examined on six occasions the reports of the Committee on Freedom of Association on the cases pending before it and on the complaint presented under article 26 of the Constitution together with the Government's successive replies (see 255th, 258th, 261st, 264th, 267th and 269th Reports).
18. During its 244th Session, on 15 November 1989, the Governing Body approved the recommendation of the Committee on Freedom of Association to refer the examination of the whole matter to a Commission of Inquiry, in accordance with article 26, paragraph 3, of the Constitution of the ILO (see 269th Report). The corresponding conclusion and recommendation of the Committee in this connection read as follows:
Nevertheless, the Committee must observe that the Government has not supplied replies to some of the questions put by the Committee at its previous meeting, in particular in relation to the establishment of a standing committee on tripartite consultations concerning international labour standards and in relation to certain decrees violating freedom of economic information. In addition, the Government has not replied to the allegations made by the IOE in June and August 1989 concerning the confiscation of land belonging to employers' leaders and the refusal to pay compensation and to restore farms to their owners. It also appears that, for a number of points at issue, contradictions still remain between the statements made by the complainants and by the Government, particularly regarding consultations on the preparation of the new Labour Code.
In the light of its foregoing conclusions, the Committee recommends to the Governing Body that it transmit this affair as a whole to a commission of inquiry for examination, in conformity with article 26, paragraph 3, of the Constitution of the ILO. In making this recommendation, the Committee in no way is prejudging the situation in Nicaragua and even less is attributing blame to or expressing condemnation of the Government. On the contrary, it is convinced that the establishment of this commission will enable, in collaboration with the authorities and the social partners, a positive contribution to be made to solving the issues facing this country in the field of labour and industrial relations, issues which the Government has, on several occasions, stated that it wishes to resolve. (See 269th Report, paras. 34 and 35.)
19. At the same session (November 1989), the Governing Body decided to appoint the following persons to the Commission:
Chairman:
Mr. José Sette Camara (Brazil), former Vice-President of the International Court of Justice.
Members:
Mr. René Ricardo Mirolo (Argentina), Professor of Law at the University of Córdoba; and
Mr. José Vida Soria (Spain), Professor of Labour Law and Social Security and former President of the University of Granada.
CHAPTER 2
PROCEDURE FOLLOWED BY THE COMMISSION
First session
Solemn declaration
20. The Commission of Inquiry held its first session in Geneva from 12 to 14 February 1990.
21. At the start of the session the members of the Commission made a solemn declaration in the presence of Mr. Heribert Maier, Deputy Director-General of the International Labour Office. In inviting them to make this declaration, Mr. Maier expressed himself as follows:
You have been nominated to constitute a Commission of Inquiry by virtue of article 26 of the Constitution of the International Labour Organisation, in order to examine complaints of violations of freedom of association made against the Government of Nicaragua.
The task entrusted to you is to establish the facts without fear or favour and in full independence and impartiality. You will therefore take your place on the Commission in an individual and personal capacity.
It is for your Commission itself to fix the procedure it wishes to follow. It may, however, in fixing its procedure, bear in mind the rules adopted by the earlier Commissions set up under article 26 of the Constitution. One of these basic rules is that a Commission of Inquiry has not to confine itself to examining the information that the parties may submit but that it must also itself take all the necessary measures to obtain the fullest and most objective information possible on the questions at issue.
The Governing Body of the International Labour Office has approved the terms of a solemn declaration by which the members of a Commission of Inquiry undertake to perform their duties and exercise their powers "honourably, faithfully, impartially and conscientiously". The terms of this declaration correspond to those of the declaration made by the judges of the International Court of Justice.
I therefore invite you to make the solemn declaration in turn.
22. The members of the Commission then made the following declaration:
I solemnly declare that I will honourably, faithfully, impartially and conscientiously perform my duties and exercise my powers as a member of the Commission of Inquiry appointed by the Governing Body of the International Labour Office at its 244th Session (November 1989), in pursuance of article 26 of the Constitution of the International Labour Organisation to examine the observance by the Government of Nicaragua of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).
Communication of additional or new information
23. During the course of its first session, the Commission took note of the complaint and decided on the procedure it was to follow to carry out its tasks.
24. The Commission decided to invite the Government of Nicaragua to communicate to it before 1 April 1990, any written statement it might wish to offer, indicating that, in view of the fact that the Commission had available all information previously submitted to the supervisory bodies, any additional information be confined to supplementary or new information and items. The Commission also invited the representatives appointed by the complainants to communicate to it, before 1 April 1990, any supplementary or new information or observations they might wish to submit. It decided that these should be transmitted to the Government of Nicaragua for possible comments before 1 May 1990.
25. In addition, the Commission decided to offer the opportunity of presenting supplementary or new information to organisations having consultative status with the ILO, which had presented complaints before the Committee on Freedom of Association in connection with this matter, namely, the International Confederation of Free Trade Unions (ICFTU), the World Confederation of Labour (WCL) and the International Organisation of Employers (IOE). Likewise, the Commission also offered the opportunity of presenting any communication it might wish on the matters raised in the complaint by 1 April 1990 to an international workers' organisation which had not presented a complaint before the Committee of Freedom of Association in connection with this matter, namely, the World Federation of Trade Unions (WFTU).
26. The Commission notified the international organisations mentioned in the foregoing paragraph that all information received in connection with these cases would be transmitted to the Government and to the complainants for possible comment before 1 May 1990.
27. The Commission informed the Government of Nicaragua and the complainants, as well as the international organisations of employers and workers, that since its sole function was to examine the observance by Nicaragua of its obligations deriving from the ratification of Conventions Nos. 87, 98 and 144, it followed that matters beyond the sphere of trade unionism did not come within its competence, that any papers that might be submitted to it should relate to the matter that had been placed before it and that it would not examine any matter outside its terms of reference.
28. The Commission informed the Government of Nicaragua and the complainants that it intended to perform its tasks with complete objectivity, impartiality and independence. It made clear that it did not consider its role to be confined to an examination of the information furnished by the parties themselves or in support of their contentions, and that it would take all appropriate measures to obtain information as full and objective as possible on the matters at issue.
Measures adopted with a view to the second session and the subsequent work of the Commission
29. The Commission decided to hold its second session in Geneva as from 10 May 1990, and to start the hearing of the parties' representatives on 11 and 12 May 1990. Likewise, it invited the ICFTU, WCL and IOE to make a statement at this session, and notified the Government of Nicaragua and the complainants of this invitation.
30. The Commission invited the Government of Nicaragua to nominate a person empowered to represent it before the Commission with any substitutes it might wish. The Commission took note of the fact that the complainants, in accordance with article 26 of the Constitution of the ILO, appointed as their representatives Messrs. Johan von Holten, Javier Ferrer Dufoll and Raphael Lagasse. The Commission also invited the international organisations of employers and workers to nominate a representative for the above-mentioned hearing.
31. The Commission adopted certain rules of procedure that it intended to follow during its second session for the hearing of the representatives of the parties and of certain international organisations. These rules were brought to the notice of the Government of Nicaragua, the representatives of the complainants and the organisations of employers and workers concerned. (The text of these rules appears in the annex to this chapter.)
32. The Commission proposed to undertake a visit to Nicaragua starting 14 May 1990, for a period of approximately two weeks, in accordance with modalities to be established later, in order to obtain full information on the matters submitted to it. The Commission notified the Government that, if such a visit in May proved inconvenient, the visit would take place no later than the first week of July 1990.
33. The Commission notified the Government of Nicaragua that during its visit to Nicaragua the Commission should enjoy full freedom of movement and the right to hold private meetings and interviews in the absence of witnesses. Persons who may come into contact with the Commission should not, at any time, be the object of any measure of coercion, sanction or discipline owing to such contacts. The Commission requested the Government to confirm its acceptance of the above-mentioned dates and the conditions necessary for the fulfilment of the Commission's tasks.
34. The Commission authorised its chairman to deal with any questions of procedure that might arise between sessions, in consultation with the other members if he considered this necessary. It also authorised the Secretariat to prepare and sign routine communications to be sent to the parties and other organisations.
35. The Government of Nicaragua, the complainants and the international organisations of employers and workers mentioned above were each informed of the decisions adopted during the Commission's first session.
Change of Government in Nicaragua
36. On 25 February 1990, general elections were held in Nicaragua during which the National Liberation Sandinista Front (FSLN) Party was defeated, thus resulting in a basic change in the situatiuon in the country. The new Government under the presidency of Mrs. Violetta Barrios de Chamorro took office on 25 April 1990.
37. In view of the outcome of the elections and the date the new Government took office, the Commission set new dates for its second session finally as 13, 14 and 15 June and it had to carry out its visit as from 4 July 1990.
Communications received since the first session of the Commission
38. After the Commission decided to afford the Government of Nicaragua, the complainants and the employers' and workers' organisations having consultative status with the ILO the opportunity to submit additional or new information on the issues raised in the complaint, the Commission received the following communications.
Communication from the complainants
39. The representatives appointed by the complainants, Messrs. Lagasse, von Holten and Ferrer Dufoll, sent a communication dated 30 March 1990, with an annex, in which they elaborated on and confirmed the allegations presented in the complaint. The communication is divided into several sections. The first section lists the allegations presented to the Committee on Freedom of Association from November 1980 to June 1987, indicating the cases in which they were examined by the Committee. The complainants state that a considerable number of issues are still pending, as the Government has not replied to allegations or to the Committee's questions or has failed to fulfil its promises to investigate a given situation. (Endnote 1) Another section of the complainants' communication refers to observations made by the Committee of Experts on the Application of Conventions and Recommendations on Nicaraguan legislation and its application in practice with respect to the principles of freedom of association, collective bargaining and tripartite consultation on international labour standards. The communication notes the contradiction between the attitude of the Government of Nicaragua to the observations of the ILO supervisory bodies and its failure to comply with them in practice.
40. The complainants further refer to a series of violations of freedom of association and civil liberties as a result of various measures which continued to occur even after the complaint was presented in June 1987, such as the detention and conviction of the director of an economic research institute linked to the Supreme Council of Private Enterprise (COSEP); the confiscation in June 1989 of property of three directors of a coffee producers' association affiliated to COSEP for having refused to participate in a government agrarian policy; failure to consult COSEP on the amendment of the Labour Code; and failure to set up a tripartite consultation commission promised by the Government. According to the complainants, the situation in law and in practice has, for the most part, not improved, and has deteriorated in certain respects.
41. Lastly, the complainants request the Commission to pronounce on a number of points raised in the complaint and to hear various witnesses listed in the communication.
42. The annex to the communication contains a list of allegations regarding which the complainants wish the Commission to make a pronouncement.
Communication of the Government of Nicaragua
43. The Permanent Mission of Nicaragua in Geneva sent a communication dated 20 April 1990 days before the new Government took office, which refers to the following matters. It points out that the Governing Body had decided that the Commission of Inquiry would begin its work at the beginning of March 1990, as Nicaragua would be in the midst of elections until 25 February 1990. This was the understanding which had been reached in the Governing Body, and the Government was therefore surprised that the Commission held its first meeting on 12-14 February 1990.
44. The communication also points out that although international law provides for continuity of the legal personality of the State and of the obligations undertaken in the event of a change of government, in this case the situation is rather anomalous as regards the entity against which proceedings are being instituted. As from 25 April, the Government of Nicaragua will be identified with, or rather might be mistaken for, the complainant, the COSEP, a Nicaraguan affiliate of the IOE. This assertion is based on the fact that, as the Government has repeatedly pointed out, the COSEP is not an employers' body, but is in fact a political party which supported the new President in her election campaign and puts forward candidates for office in ministries and autonomous branches. Moreover, the IOE acted as an international of political parties and participated in the elections as an observer.
45. According to the communication, the IOE intends to continue the procedure with a political aim in view, i.e. to convict a government which is no longer in office.
46. The communication further refers to the note submitted by the complainants, dated 30 March 1990, requesting the Commission to pronounce upon a series of events which have already been overcome and regarding which the Committee on Freedom of Association has already formulated final conclusions. The communication examines these various issues, maintaining that they should not be reopened once the Committee has formulated final recommendations on the subject, and suggest witnesses who should be heard by the Commission.
47. Lastly, the communication provides information on new legislation enacted by the National Assembly of Nicaragua: the adoption of the Agricultural and Agro-industrial Co-operatives Act, an amendment of the Civil Service Act, and the General Amnesty and National Reconciliation Act.
Communications of international employers' and workers' organisations
48. In a communication dated 30 March 1990, the International Organisation of Employers (IOE) stated that it supported the communication submitted by the complainants on the same date.
49. For its part, the International Confederation of Free Trade Unions (ICFTU) stated in a communication dated 3 April 1990 that it had nothing to add to the complaint that it had submitted at the time concerning Nicaragua.
Second session
50. The Commission held its second session from 13 to 15 June 1990. Two sittings, on 14 and 15 June, were devoted to a hearing of the parties and the international organisations which had presented its complaints before the Committee on Freedom of Association: the IOE, the ICFTU and the World Confederation of Labour (WCL).
51. The Government was represented by Mr. Francisco Rosales Argüello, the Minister of Labour; Ambassador Gustavo Adolfo Vargas, Permanent Representative in Geneva; and Mrs. Mayling Lau Gutiérrez, a ministry official. The complainants were represented by Messrs. Raphaël Lagasse, Johan von Holten and Javier Ferrer Dufoll, accompanied by Mr. Mario Garache Castellón, Nicaraguan Employers' delegate to the International Labour Conference. The IOE was represented by Mr. Jean-Jacques Oechslin, President of the organisation, accompanied by Mr. Antonio Peñalosa, its Executive Secretary; the ICFTU by Mr. Guy Ryder, Assistant Director of the Geneva office ; and the WCL by Mr. Luis Enrique Marius, deputy secretary-general of the Latin American Central of Workers (CLAT).
52. At the beginning of the hearing, the Chairman of the Commission recalled certain rules of the applicable procedure and pointed out that, in accordance with the rules of procedure sent in due time to the participants, the Commission is not competent to deal with matters of a purely political nature and bearing no relation to the issues it has to examine. It will only accept information and statements referring to the exercise of trade union rights and the standards laid down in Convention No. 144.
53. During the hearing, statements were made by Mr. Rosales Argüello, the Minister of Labour, and Messrs. von Holten, Ferrer Dufoll, Lagasse, Oechslin, Ryder and Marius. In addition, Mr. Rosales Argüello replied to questions addressed to him by members of the Commission and representatives of the complainants.
54. The information gathered during the hearing is analysed in the part of this report which deals with the examination of the case by the Commission.
55. In reply to the Commission's statement in its communication sent to the Government following its first session, with regard to the facilities it should enjoy during its visit to Nicaragua and the conditions necessary to enable it to carry out the tasks entrusted to it (see paragraph 33), the Minister of Labour expressed full agreement with these principles. According to the Minister, the Commission would enjoy complete freedom and all of the guarantees necessary to inteview whomever it wished, without interference of any kind.
56. As regards the visit, Messrs. Ferrer Dufoll and Lagasse expressed the wish that a representative of the complainants participate in the hearing of the witnesses proposed by the complainants in their communication dated 30 March 1990. On this point, the Commission decided to interview various persons to be chosen in the light of their knowledge of the facts and law under examination. In this respect, the Commission will of course also take the suggestions of the parties into account. Unlike the hearings in Geneva and in line with the practice adopted by all of the previous Commissions of Inquiry, these interviews will be held in private, that is without the parties being present.
Communications received after the second session
57. The representatives of the complainants sent the following communication to the Commission, dated 18 June 1990, reiterating and elaborating on the matter already raised by Mr. Lagasse after the Commission took its decision at the hearing with regard to the interviews during the visit to Nicaragua:
(Translation)
The complainants wish to refer to the statement you made on 15 June on behalf of the Commission of Inquiry, to the effect that the parties will not be permitted to be present during the contacts the Commission intends to establish next month in Managua with the persons they listed as witnesses in their communication of 30 March.
We are not unaware of the fact that the Commission is free to determine its procedure, although the various commissions have always endeavoured to base themselves on the rules and principles which have traditionally guided the Commissions of Inquiry of the ILO. It would be regrettable if the Commission went through with this decision, since the result of the envisaged procedure would be that, at the end of the Commission's work, the parties would not have had the opportunity, either in Geneva or in Nicaragua, to hear the persons officially called as witnesses or to question them, should they so wish. When they listed 13 witnesses directly involved in the alleged facts in their communication of 30 March, the complainants were moved by the same concern as the Governing Body of the ILO when it instituted the Commission of Inquiry, that is, to ascertain the facts and dispel the uncertainty surrounding them due to the contradictions which still persist between the complainants' allegations and the Government's replies.
It is clear from the Official Bulletin containing the reports of the Commissions of Inquiry which examined the complaints against Haiti, the Dominican Republic, Poland and the Federal Republic of Germany that the witnesses presented by the parties were heard in the presence of the parties and that the latter thus had the opportunity to question them. The mere fact that in the above-mentioned cases the witnesses were actually heard at ILO headquarters does not appear to us to be a relevant argument to evade compliance in the present case with what we consider to be an essential principle recalled in the complainants' initial statement and sanctioned by practice, that the parties must be able to have their witnesses heard, to hear them - and to hear any witnesses presented by the opposing party - and to have the opportunity to question them should they so wish.
We would appreciate it if the Commission, in the light of the above, would agree to hear the witnesses presented by the parties and grant the latter the opportunity to participate in this hearing.
58. The Chairman of the Commission sent the following reply to the complainants in a communication dated 22 June 1990:
I refer to your communication of 18 June 1990 regarding the interviews to be held by the Commission of Inquiry during its visit to Nicaragua.
I should like to refer to the procedure decided by the Commission for the case of Nicaragua. This is, in fact, a case in which the Committee on Freedom of Association has examined, over nine years, an important number of complaints containing different allegations of violations of freedom of association affecting both employers and workers. In addition, the Nicaraguan trade union and collective bargaining legislation and the situation of tripartite consultations on ILO standards have been repeatedly examined by the Committee of Experts on the Application of Conventions and Recommendations, as well as during the discussions in the Committee on the Application of Standards of the International Labour Conference. In the course of these various procedures two direct contact missions were carried out in 1981 and 1983, and there was a study mission in 1988.
In this manner a large volume of information supplied by the parties involved in this case has been collected, thus allowing the Commission to have extensive knowledge of the facts of the situation.
In these circumstances, the Commission considered that it was not necessary to hear witnesses during the hearings held in Geneva. Thus it limited the hearings to the parties to the complaint and to the international organisations of employers and workers that had filed complaints with the Committee on Freedom of Association.
In accordance with the precedents of all the other Commissions of Inquiry and similar bodies, the Commission then decided to collect information on the spot through the procedure of official interviews with the authorities and private interviews with other persons having enough knowledge of the issues under investigation. All these interviews, in conformity with established practice, are held without the presence of the parties involved. This general rule was already applied by the first Commission of Inquiry appointed by the Governing Body under article 26 of the ILO Constitution to examine in 1961 and 1962 the complaint filed by Ghana against the Government of Portugal.
That Commission decided that it did not appear necessary for the Commission "to be accompanied in the course of its present visit in the field by the agent, counsel or representative of either party" (Report of the Commission appointed under article 26 of the ILO Constitution to examine the complaint filed by the Government of Ghana concerning the observance by the Government of Portugal of the Abolition of Forced Labour Convention, 1957 (No. 105), paragraph 59).
In these cases the persons interviewed are not witnesses in the technical sense of the word, that is, persons proposed by each party as its witnesses whose interrogatory has to be controlled by the parties. In the selection of the people to be interviewed by the Commission the list of persons proposed by the parties is taken into consideration, but the final decision in this matter rests with the Commission. This decision will be based on the objective of obtaining information from different sources, so that the Commission is in a position to control better the breadth and objectivity of the information gathered.
It should be noted that this procedure regarding visits to the countries is also followed by the Interamerican Commission on Human Rights. Section 59 of that Organisation's Rules of Procedure states that "the Special Commission or any of its members shall be able to interview freely and in private any persons, groups, entities or institutions, and the government shall grant the pertinent guarantees to all those who provide the Commission with information, testimony or evidence of any kind".
It was with this in mind that the Commission, in a communication of 27 February 1990 following its first meeting, pointed out to the Government of Nicaragua that "during the visit to the country the Commission shall enjoy complete freedom of movement and shall hold to that effect conversations and interviews in private and without the presence of witnesses. The persons who entered into contact with the Commission shall not be subject at any time to measures of coercion, punishment or discipline due to those contacts." During the recent hearing, the Labour Minister of Nicaragua expressed his agreement with these conditions.
The Commission considered that the above-mentioned procedure has always yielded satisfactory results in obtaining the greatest possible amount of information needed for this kind of inquiry. The presence of the complainants and of the Government at the interviews would not be in conformity with the nature of the inquiry and even may introduce an element of unbalance if such presence were limited to the party that had proposed the person being interviewed.
Therefore, the Commission will proceed in the manner decided on 15 June 1990, at the hearing held in Geneva.
The Commission's visits to Nicaragua
59. The Commission carried out its first visit to Nicaragua from 4 to 14 July 1990. During the visit an intensive programme of interviews organised by the secretariat in that country was to take place. Upon its arrival in Managua on 4 July together with members of the secretariat staff, the Commission was informed that a general strike had just been declared. From the outset of the mission, the strike gave rise to difficulties which prevented the programme from being entirely carried out. Thus, the first interviews both with the President of the Republic and the Minister of Labour could not take place. In the next three days most of the interviews were held, but by 9 July events had taken on such proportions and scope that all except one of the meetings confirmed for that day and the following day did not take place. In these circumstances, and aware that it would not be able to follow the programme laid down, the Commission decided to suspend its work and resume it at a later date, to be fixed in due time.
60. The interviews which took place during this period were with Mr. Ervin J. Krüger, Vice-Minister of the Presidency; Messrs. Enrique Bolaños, Ramiro Gurdián, Gilberto Cuadra, Arnoldo Alemán Lacayo, Benjamín Lanzas and Mario Garache, of the Supreme Council of Private Enterprise (COSEP); Messrs. Juan Ramón Aragón, Daniel Nuñez and Mrs. Celia Morales, of the National Union of Farmers and Cattle Breeders (UNAG); Messrs. Luciano Torres, Oscar Gómez and René Bonilla, of the Sandinista Confederation of Workers (CST); Mr. Francisco Cano and Mrs. Margarita Ramírez, of the Association of Rural Workers (ATC); Messrs. Benedicto Meneses Fonseca, former Minister of Labour, and Adrían Meza Sosa, former Secretary-General of the Ministry of Labour; Messrs. José Angel Bermúdez and Marvin Cortez Estrada, of the National Union of Employees (UNE), Adrian Meza Sosa of the National Workers' Front (FNT) and Andrés Zamora Peralta of the Federation of Health Workers (FETSALUD).
61. The Minister of Labour was informed of the Commission's decision to suspend its work in the following letter dated 11 July 1990, in Managua:
Dear Sir,
The Commission of Inquiry appointed by the Governing Body of the International Labour Organisation under article 26 of the ILO Constitution to examine the complaint presented concerning Nicaragua's compliance with Conventions Nos. 87, 98 and 144, has the honour to address Your Excellency as follows:
The Commission arrived in Managua on 4 July to carry out a previously established programme of interviews. Although it was able to hold some of these interviews on the first days of its visit, from the outset certain difficulties arose which prevented the programme envisaged from being carried out in full. As from Monday, 9 July, the situation deteriorated to the extent that the Commission's activity was virtually brought to a standstill by the non-appearance of the organisations and persons summoned.
In these circumstances, having examined the situation, the Commission became convinced that it was materially impossible to carry out the tasks it had envisaged during the timetable fixed and thus bring its mission to a satisfactory conclusion. Therefore the Commission has decided to suspend its work in Nicaragua and resume it at a date to be fixed in due time in accordance with the established practice.
The Commission would like to put on record the fact that it is perfectly aware that the difficulties which have been encountered and which have caused it to take this decision are entirely attributable to the exceptional circumstances in which the country now finds itself. The Commission sincerely hopes that these circumstances will be happily overcome and trusts that it will be able to complete its work in the near future.
Meanwhile, the Commission wishes to assure Your Excellency of its highest consideration.
62. The Commission carried out a second visit to the country from 17 to 22 September 1990 in order to complete its programme of interviews.
63. The following persons were interviewed during this visit: Mr. Francisco Rosales Argüello, Minister of Labour (on two occasions); Mrs. Elba Baca, Director of Trade Union Associations; Mrs. Alba Tábora, Director-General of Conciliation, and Messrs. Salvador Fonseca and Víctor Manuel Espinoza Pao, conciliation lawyers in the same Directorate; Messrs. Orlando Trejo Somarriba, Enrique Villagra and Alfonso Valle Pastora, President, Judge and Secretary of the Supreme Court, respectively; Mr. Roberto Saravia, Legal Adviser and Deputy Attorney-General; Mr. René Vivas Lugo, Chief of Police; Mr. Nemesio Porras, Vice-Minister of the National Institute of Agrarian Reform (INRA), and Messrs. Adolfo Chávez Rojas, Assistant Minister and Director of the INRA, and Ronaldo Lopez, Head of Public Relations of the INRA; Mr. Mario Garache Castellón, executive secretary of COSEP; Mr. Jaime Wheelock Roman, former Minister of Agricultural Development and Agrarian Reform; Messrs. Alejandro Solórzano, Secretary for National and International Relations, and Rolando Velázquez Medina, Secretary for Instruments and Agreements of the General Confederation of Labour (Independent) (CGT(i)); Mr. Fernando Malespín, Secretary-General of the Workers' Front (Frente Obrero); and Mr. Lino Hernández, Director of the Standing Committee on Human Rights (CPDH).
64. During its visits the Commission had repeatedly invited the following organisations: the Confederation of Trade Union Unity (CUS), Trade Union Action and Unity (CAUS) and the National (Autonomous) Confederation of Workers of Nicaragua (CTN(a)); Mr. Carlos Huembes, of the Confederation of Workers of Nicaragua (CTN); Mr. Mario Alegría and lawyers; and Mr. José Castillo Ocejo, of Radio Corporación, who failed to appear, although they had confirmed their appointments. Mr. Alegría informed the Commission during the second visit that he would be out of the country but that he would try to appear. Mr. César Jerez, Director of the National Committee for the Promotion and Protection of Human Rights (CNPPDH), also failed to keep his appointment.
65. Having been invited to do so, the Commission attended the inauguration of the national consultations held on 20 September 1990 at the Olof Palme Conference Centre in Managua.
66. The Commission held its third session in Geneva from 19 to 23 November 1990, at which it drafted, approved and signed its final report.
II. BACKGROUND TO THE CASE
CHAPTER 3
TRADE UNION LEGISLATION WHEN THE COMPLAINT WAS SUBMITTED
67. The principles and standards pertaining to trade union matters that were in force in Nicaragua at the time are mainly to be found in the Political Constitution of 1987, the Labour Code of 1945 (and its amendments) and in the Regulations on Trade Union Associations of 1951 (and its amendments). (Endnote 2)
(a) Recognition of the right to organise
68. According to the Political Constitution of Nicaragua, promulgated on 9 January 1987, workers in the city and countryside, women, young people, agricultural producers, craftsmen, professional workers, technicians, intellectuals, artists, members of religious communities, the communities on the Atlantic coast and the population in general have the right to set up organisations, without distinction whatsoever, with a view to fulfilling their aspirations in accordance with their own interests and to participate in the building of a new society. These organisations are to be established in accordance with the participatory and elective will of the citizens, fulfil a social role and may or may not be of a specific structure in accordance with their nature and objectives (article 49).
69. There is no specific mention in this article of the freedom of association of employers, to whom however the Labour Code and the Regulations on Trade Union Associations refer.
70. However, self-employed workers (sections 1 and 3), persons working in family workshops and public servants (section 9) are excluded from the Labour Code.
(b) The establishment of trade union organisations
71. In accordance with article 87 of the Constitution workers may freely organise themselves in trade unions, and these may be set up in accordance with the legislation.
72. The Labour Code stipulates (section 188) that the State guarantees the free establishment and running of trade unions for the defence of occupational interests and the social, economic and social betterment of members of such unions. Trade unions (section 189) may not be formed with less than 25 members in the case of workers and less than five employers in the case of a union of employers. As regards works' unions, they may only be set up with the absolute majority of workers in the respective enterprises or workplaces.
73. Under section 1 of the Regulations on Trade Union Associations, trade unions are defined as being associations of employers, employees, workers or peasants, set up for their moral, economic and social betterment, for an examination of their joint problems and for the defence, development and protection of their occupational interests. Trade unions (section 5) may be employers' trade unions, employees' trade unions, workers' trade unions or peasants' trade unions, depending upon their members. In the case of workers' trade unions, these may either be occupational unions (workers in the same occupation, trade or specialised field), works' unions (formed by persons of different occupations or trades employed in one and the same enterprise), industrial unions (persons employed in two or more enterprises of the same category) and general trade unions (formed by employees of different occupations not connected with one another when, in the enterprise or workplace at which they are employed, there are not enough workers to set up trade unions of other types).
74. Trade unions may, depending upon their members, be either peasants' or urban workers' trade unions or, by virtue of their legal scope, be individual, municipal, departmental and national (production sector).
75. It should also be pointed out that the same section 5 of the Regulations on Trade Union Associations also considers a social or occupational organisation to be any organisation or study group, with any name whatsoever, which sets out to promote mutual assistance between workers and peasants in any way whatsoever, as well as those that promote art, culture, etc. - even when there is no relationship between workers and employers or when they are not considered either as an employers' or workers' organisation. These organisations are subject to the same provisions contained in the Labour Code and the Regulations.
76. As regards the registration of a trade union, section 195 of the Labour Code stipulates that the Department of Associations of the Ministry of Labour will make it effective within the ten days after a copy of the instrument constituting the union and a copy of its rules have been submitted. If there is anything missing in this information, those concerned have to be informed within three working days. Any delay in the registration is subject to disciplinary measures by the respective superior. If the Department refuses to grant registration, an appeal may be made to the General Labour Inspectorate which has to reach a decision within ten days. An appeal against the decision may be brought before the Supreme Court of Justice, in accordance with provisions laid down in the Act on amparo (enforcement of constitutional rights).
(c) The drawing up of rules, the election of officials and internal administration
77. Section 194 of the Labour Code stipulates that the rules of a trade union shall be freely drawn up and give indications on a certain number of matters such as the nature and name of the trade union, its address, purpose, objectives and duration, as well as its method of electing the executive committee, etc. Section 12 of the Regulations on Trade Union Associations is more specific on the subjects that must be covered in the rules.
78. Those who are eligible to be members of the executive committee of a trade union (section 201) must be of Nicaraguan nationality, have attained the age of majority or be declared legally of age.
79. Section 15 of the Regulations on Trade Union Associations stipulates that workers may elect the executive committee of the trade union in full freedom and that any interference, prohibition or coercion on the part of employers or their representatives is punishable.
80. The Regulations also refer to conditions of eligibility or belonging to the management committee of a trade union (section 35) and stipulate that persons eligible must be of Nicaraguan nationality, more than 18 years of age and know how to read and write. They may be elected for periods not exceeding one year and be re-elected.
81. Section 36 of the Regulations specifies the obligations of the executive committee of a trade union; amongst other things, it must carefully handle and maintain all the books and documents to which reference is made and present them to the authorities of the Ministry of Labour upon request of any of the members of that union.
(d) Activities and programme of action
82. Section 188 of the Labour Code recognises the right of association, that is the right to organise in trade unions, for the purpose of the defence of occupational interests. According to section 197, unions have the right, among others, to conclude collective agreements and to pursue the rights arising therefrom, to represent their members in disputes arising out of labour contracts, to create assistance funds, to establish industrial and occupational schools, to set up co-operatives, etc., to reply to consultations with the Ministry of Labour, to denounce to the Ministry any irregularities in the observance of the Labour Code. Section 4 of the Regulations on Trade Union Associations forbids trade unions and their members to belong to political parties or international organisations that, in their rules, programmes and activities, support Communist ideas or those likely to undermine national sovereignty, the Republican and democratic form of government, law and order, moral principles and good behaviour.
83. The right to strike is recognised in article 83 of the Political Constitution; section 222 of the Labour Code defines "strikes".
84. A strike may be lawful or unlawful (section 224). It is deemed lawful when it has been authorised by the competent conciliation board, by the corresponding labour magistrate (when it is a matter of supporting a lawful strike in the same branch of activity or industry) or by the Superior Labour Court. Any other strike is unlawful.
85. In accordance with section 225(3), it is necessary that potential strikers account for 60 per cent of the workers in the enterprise or business in question in order for the conciliation board to authorise a strike.
86. A strike is not allowed in the public service or in work of interest to the community (section 227). Section 228 defines work in the public service and that in the interest of the community. This includes work carried out by employees engaged in the sowing, cultivation or harvesting of agricultural or forestry products or in stock-raising, and similarly in the processing up of the said products in cases where they would deteriorate if not immediately handled.
87. Section 314 allows for compulsory arbitration to end a strike if no settlement has been reached 30 days after the date authorised for the strike or lock-out.
(e) Dissolution of trade union organisations
88. Section 202 of the Labour Code stipulates that trade unions may be wound up in the following cases: when they have exceeded the period specified in their constitution or the extension agreed upon by the general assembly; when an enterprise is closed, in the case of works' unions; when the members of a trade union so wish, in accordance with the provisions laid down in their rules to this effect. Any dissolution of a trade union is a matter for the labour magistrates in the area in which the trade union has its headquarters (section 203), at the request of one of its members or a representative of the Public Prosecutor. An employer may also demand the dissolution in the case of a works' union.
89. Section 204 lists further reasons for which a trade union may be wound up; for instance, if it adheres to national or international political parties and associations, forms part of them or takes part in their activities.
(f) The setting up of higher-level organisations and affiliation with international organisations
90. Section 207 of the Labour Code stipulates that two or more trade unions may form a federation and that two or more federations may form a confederation. These organisations are governed by the same rules applying to trade unions.
91. According to the Regulations on Trade Union Associations (section 43), two or more trade unions operating in the same department may form a federation, even if they are not in the same branch of activity; for instance, an urban trade union may join together with a rural or peasants' trade union. In accordance with section 45 of the Regulations, federations are subject to the same rules, obligations and prohibitions as trade unions - with the specific characteristics inherent in the nature of their organisation - and enjoy the same prerogatives. Section 58 stipulates that two or more federations may constitute a confederation and that these (section 59) are subject to the same regulations as those applying to federations, except for those that might be specifically established in their respect. A confederation of peasants may join together with a confederation of urban trade unions (section 62). In order for a confederation to be able to include the term "general" or any other term implying national scope in its name, it must group together federations from eight departments at least (section 61).
92. It should be pointed out that section 64 of the Regulations stipulate that two or more confederations may set up a council or other similar body and that these might belong to international workers' organisations, provided that these are democratic and not affiliated to the Communist Party or any other international organisation of a persuasion that attempts to change the Republican nature of the Government.
(g) Protection against anti-trade union discrimination and negative freedom of association
93. Article 87 of the Constitution stipulates that no worker is obliged to belong to a specific trade union, neither is he obliged to give up his membership of a union. This provides protection against anti-trade union discrimination and against negative freedom of association. The same article recognises full trade union autonomy and trade union immunity.
94. These principles are further developed in the Labour Code (section 191), which stipulates that nobody may be forced either to join a trade union or be prevented from doing so. Any clause or provision in an agreement, contract or labour regulations, which in any way restrict the individual right to belong, to refrain from belonging or to leave a trade union, shall be null and void. This section is acknowledged by section 14 of the Regulations on Trade Union Associations.
95. The five first members (section 192) of the trade union executive committee may not be dismissed from work without just causes that have been proven before the respective labour inspector. If any of these members are dismissed without this provision being applied, they must be reinstated and the employer must pay their wages outstanding for the entire period commencing with their dismissal until their actual reinstatement.
96. Similarly, the Regulations (section 15) stipulate that any interference, prohibition or coercion on the part of employers or their representatives which impedes the right of freedom of association of workers and the free election of their officials is a punishable offence. Section 17 of the Regulations stipulates that the labour inspectorate may, upon request of one of the party, issue a resolution preventing the dismissal of three members of the executive committee of the trade union when, during a one-year period, more than two workers have been dismissed from the enterprise without proof having been given that these workers were dismissed on good grounds.
(h) Right to collective bargaining
97. Article 88 of the Political Constitution guarantees the inalienable right of workers to sign individual collective agreements with their employers.
98. Sections 22 to 31 of the Labour Code deal with collective agreements. In accordance with section 22, collective agreements may be negotiated between an employer or group of employers on the one hand and by a trade union, a federation or a confederation of workers' trade unions on the other hand.
99. The same section 22, amended by Decree No. 530 of 2 October 1980, stipulates that collective bargaining and the approval of collective agreements requires the approval of the Ministry of Labour in accordance with the procedure established by it.
CHAPTER 4
COMPLAINTS SUBMITTED TO THE COMMITTEE ON FREEDOM OF ASSOCIATION
100. Since the Committee on Freedom of Association was set up by the Governing Body at its 117th (November 1951) Session, 37 cases have been brought against the Government of Nicaragua for violations of trade union rights. From May 1966, when the first case was presented to the Committee (Case No. 479) up to July 1979, 14 cases had been presented. From November 1980 (when the Somoza regime fell) up until the time the complaint was submitted under article 26 of the ILO Constitution, 21 cases had been presented.
101. When the Governing Body decided to refer the complaint to the Committee on Freedom of Association (238th Session, November 1987), there were five cases (Nos. 1129, 1298, 1344, 1351 and 1372) pending before this body. After the submission of the complaint, new cases were brought before the Committee (Nos. 1442 and 1454), which examined these together with those pending and with the complaint submitted under article 26.
102. The first complaint against the Sandinista Government was examined in Case No. 1007. It was contained in a communication from the International Organisation of Employers (IOE), dated 20 November 1980, and dealt primarily with the murder of a high official of the Supreme Council of Private Enterprise (COSEP), the detention and sentencing of employer leaders and attacks on freedom of information.
103. Previous cases examined by the Committee on Freedom of Association dealt with allegations concerning in particular: arbitrary arrests of trade unionists (Cases Nos. 1031, 1047, 1084, 1129, 1148, 1169, 1185, 1208, 1283, 1298, 1344, 1351, 1442, 1454); physical assaults, torture and threats (Cases Nos. 1031, 1129, 1169, 1185, 1283, 1289, 1344, 1442); the searching of and attacks on trade union premises and on private homes (Cases Nos. 1129 and 1298); restrictions on freedom of expression (Cases Nos. 1084, 1129, 1283, 1454); the arrest of employer leaders (Case No. 1084); the banning on travel to take part in ILO activities (Cases Nos. 1103, 1114, 1129, 1317, 1283); the temporary abolition of the right to strike under the economic and social state of emergency (Cases Nos. 1123 and 1133). Furthermore, allegations were submitted concerning discriminatory measures taken against members of COSEP, which included: the expropriation of the land and enterprises of a number of employer leaders (No. 1344); restrictions on the right of expression, as well as the arrest and sentencing of the director of an institute of economic studies affiliated to COSEP for having published a number of economic data (Case No. 1454). In Cases Nos. 1442 and 1454, the Committee also examined allegations concerning discrimination against COSEP with regard to participation and tripartite consultations. In Case No. 1442, reference was also made to the murder of a peasant and of a lawyer.
104. In all these cases, the complainants were primarily the International Organisation of Employers (IOE), the International Confederation of Free Trade Unions (ICFTU), the World Confederation of Labour (WCL) and the Latin American Central of Workers (CLAT).
105. To sum up, the cases dealt with the following issues:
Alleged murders
106. From the allegations submitted in the case concerning the murder by the police of Mr. Jorge Salazar Argüello, Vice-President of COSEP, it was inferred that he had been murdered because of his activities on behalf of the employers' organisation to which he belonged. For its part, the Government stated that the employer leader was transporting weapons and that he belonged to a seditious movement that was trying to restore the Somoza régime, for which purpose he was receiving assistance from abroad.
107. Since contradictions were noted between the Government's statements and the sentence handed down in the case as to whether Mr. Salazar had been armed, and deploring that the text of the judgement was transmitted only two years after it had been delivered, the Committee considered that the climate of incertitude and doubt surrounding Mr. Salazar's death could only have an unfavourable influence on industrial relations and the confidence which should reign in occupation organisations to enable them to exercise freedom of association.
108. As regards the other allegations concerning the murder of two unionists and a lawyer, legal adviser to a workers' organisation, the Committee decided not to decide this matter given the contradictory statements made on it by the complainants and the Government.
Alleged arrests
109. Many complaints referred to the arrests of trade unionists and, in a number of cases also to that of employers' leaders of COSEP. It was also alleged that there had been physical assaults during several of these arrests. In the case of the employers, they alleged inhuman treatment in prison. On a number of occasions, the Government stated that the arrests were made because the persons involved were carrying out contra-revolutionary activities or had committed common law crimes, which had nothing to do with trade union matters or the defence of occupational interests. In many of these cases, the Committee requested transmission of the judgements and deplored the arrest of trade unionists and employers' leaders, drawing the Government's attention to a number of principles on the guarantees that those arrested should have - in a case in which these leaders had received ill-treatment and been subjected to unneccessary unpleasantness. In this case, as in others, the issue was the use of the law on the maintenance of public security, and the Committee requested the Government, in view of the consequences this law had on the exercise of trade union rights and the civil liberties linked to these rights, to take measures to amend the law so as to bring it into conformity with Convention No. 87 and the ILO resolution on trade union rights and their relation to civil liberties.
Alleged physical assaults, threats and torture
110. Many cases referred to physical assaults and threats by authorities or groups of individuals close to the Government against trade unionists with leanings opposed to the Government, without the police intervening to prevent this action. In a number of these cases, the complaints lacked specific information but in others the Committee requested the Government to guarantee a climate favourable to the development of the various currents within the trade union movement in Nicaragua. As regards the allegations of torture, the Committee recalled that governments should give the necessary instructions so that no detainee is subject to ill-treatment and should apply effective sanctions where cases of ill-treatment are found.
Alleged searching of trade union premises and infraction of domicile
111. Some cases contained allegations referring to the searching and looting of files by state security forces at the headquarters of a trade union confederation; others referred to the occupation of trade union confederation headquarters by groups of persons, or to the searching of the homes of trade unionists who were subsequently arrested and accused of belonging to an armed organisation opposed to the Government and of committing a number of common law crimes. On the various issues, the Committee reiterated the principles whereby the accused should have an independent and impartial trial and that the authorities should not intervene in trade union activities and internal affairs. As for the attacks on trade union premises, the Committee pointed out that an inquiry should be immediately carried out to determine responsibilities and to punish the guilty parties.
Alleged confiscation of property
112. Various allegations referred to the confiscation of land and goods in a discriminatory way as a means of pressure against COSEP members, on account of their activities to defend their occupational interests. In its replies, the Government denied the discriminatory nature of these expropriations and pointed out that they had been necessary to implement agrarian reform programmes in several areas throughout the country. No reply from the Government has yet been received on a number of recent allegations. In its conclusions, the Government expressed its concern that such measures of confiscation had affected, in a discriminatory way, many employer leaders and expressed the hope that those affected would receive fair compensation.
Alleged restrictions on travel
113. A number of cases submitted to the Committee on Freedom of Association alleged the ban - or difficulties imposed by the authorities - on the travel of employer leaders. In one of these cases, it was alleged that obstacles had been created to prevent an official of an employers' organisation from leaving the country to take part in a meeting organised by the ILO in a neighbouring country. In another case, it was alleged that many employers had been forbidden to travel to Managua to participate in a meeting organised by COSEP; this meeting took the form of a "Day of private enterprise", when the position of private enterprise towards the economic problems besetting the country was to be defined. In another case, it was alleged that administrative obstacles had been created with a view to preventing or making it difficult for a number of employers to travel abroad. The Committee stressed that the leaders of workers' and employers' organisations should enjoy adequate facilities, including the right to leave the country, to enable them to carry out their functions whenever their actions for their members so require. Likewise, freedom of movement of these representatives must be guaranteed by the authorities.
Alleged violation of freedom of expression
114. A number of cases were submitted alleging, amongst other things, the difficulties or obstacles that had been created to prevent a number of employers' and workers' organisations from expressing their opinions through the media (press, radio). In one of these cases, it was alleged that some employer leaders had been arrested and tried for having signed a public letter denouncing the political direction that the Sandinista revolution had taken. In another case, the complainants alleged the closure of an important daily newspaper which frequently echoed the attitudes and opinions of COSEP. One particular case referred to the arrest and trial of the director of an institute of economic studies affiliated to COSEP, on the grounds that he had obtained certain economic data that the Government considered confidential and which, under a decree, could only be disseminated by a state body. The Committee expressed its concern at the frequency of the suspension measures imposed on the press and recalled the importance of the right of workers' and employers' organisations to express their opinions through the media. As concerns the director of the COSEP institute whose case was dismissed on appeal for lack of proof, the Committee expressed the hope that any petition for compensation filed by him for the time spent in detention should be examined in accordance with the provisions of the International Covenant on Civil and Political Rights.
Allegations concerning the temporary suspension of provisions on the right to strike
115. A number of cases referred to the promulgation of Decree No. 812 of 10 September 1981 on the state of economic and social emergency, under which strike action was considered a crime against the economic and social security of the nation, and Decree No. 911 of 22 September 1981, containing legislation to suspend labour provisions concerning strike action. In one of its replies, the Government noted that Decree No. 812 had already been repealed when the complainant submitted its complaint. As regards Decree No. 911, the Government acknowledged that throughout the state of emergency, which was extended from month to month, the legislation remained in force. However, according to the Government, collective bargaining rights remained unrestricted and without recourse to strike action, because of conciliation and arbitration procedures set out in the decree. The Committee expressed the firm hope that the Government would rapidly adopt measures to remove these restrictions from the free exercise of freedom of association.
Allegations concerning tripartite consultation procedures and the drafting of the Labour Code
116. Several pending allegations referred to the Government's discrimination against COSEP, in so far as it did not allow this organisation to participate in tripartite consultations on economic and social issues, in consultations provided for under Convention No. 144 on matters dealing with international labour standards and in tasks relating to the drafting of a new Labour Code. According to the Government, COSEP had been invited to participate but had adopted an intransigent attitude, which led to COSEP not participating in these consultations.
CHAPTER 5
COMMENTS BY THE COMMITTEE OF EXPERTS ON THE APPLICATION OF CONVENTIONS AND RECOMMENDATIONS WITH RESPECT TO CONVENTIONS NOS. 87, 98 AND 144
The Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
117. Nicaragua ratified Convention No. 87 in 1967; the ratification took effect on 31 October 1968.
118. After a number of direct requests made to the Government in 1970, 1971, 1972 and 1973 and a general observation in 1977, the Committee of Experts on the Application of Conventions and Recommendations addressed an observation on various aspects of the legislation to the Government in 1979. The points raised by the Committee in its observation referred to: the right to organise of persons excluded from the scope of section 9 of the Labour Code (public officials and those working in family workshops), as well as self-employed workers in the urban and rural sectors (sections 2, 3 and 175); the requirement of an excessive number of members to set up a works or departmental trade union (section 8 of the Regulations on Trade Union Associations); the impossibility of making an appeal having suspensive effect to the legal authorities if the administrative authority refuses to register the trade union (sections 13 and 46 of the Regulations); provisions in the legislation to the effect that only workers in employment may hold trade union office (sections 23 and 24 of the Regulations); the prohibition of the election of members of the executive committee for more than two successive terms (section 35) and the possibility of removing members of the trade union executive by administrative action, without appeal to the judiciary (sections 39 and 41 of the Regulations); regulations which provide for the representation of the labour administration at constituent meetings and general meetings of trade unions (sections 10 and 31 of the Regulations); the presentation of documents pertaining to the trade union should any member or the labour authority so request (section 36 of the Regulations); the use that must be made of a certain percentage of trade union dues (section 20 of the Regulations); the regulations on the automatic exclusion of trade union membership (section 23 of the Regulations); the conditions and limitations imposed on the right to establish federations and confederations (sections 43 and 62 of the Regulations); the limitation on the number of delegates that trade unions may appoint to take part in the congress of a federation (section 52 of the Regulations); and the failure to acknowledge (section 44 of the Regulations) the right of collective bargaining of federations and the restrictions placed on federations and confederations as regards their intervention in collective disputes (section 63 of the Regulations).
119. Observations were made on other points such as the general prohibition of political activities by trade unions (section 204 of the Labour Code) and the restrictions on the right to strike provided for under sections 225, 228 and 314 of the Labour Code.
120. In general, the aspects of the legislation that were commented on in 1979 were raised again in the Committee's subsequent observations of 1980, 1981, 1982 and 1983. In 1981 a further point was added concerning section 189 of the Labour Code which prevents the establishment of more than one trade union per enterprise. With the promulgation of Decree No. 1260 of 31 May 1983, most of the sections contained in the Regulations on Trade Union Associations that had been commented on by the Committee of Experts in connection with Convention No. 87 were amended and repealed. A sole exception was section 36 of the Regulations, since the new wording of this section still allowed for excessive intervention of the labour authorities in connection with the financial records and other documents belonging to the trade union, because it stipulated that these should be presented upon request by any member of the trade union.
121. Apart from the points mentioned above, the Committee of Experts, in its 1983 observation, referred to Decrees No. 911 of 9 November 1981 and No. 955 of 4 February 1982 which suspended the provisions concerning strikes and stoppages as long as the Act declaring a state of economic and social emergency (Decree No. 812 of 9 September 1981) remained in force. These decrees laid down a procedure for settling economic and social disputes on the initiative of the employer or the workers leading to an arbitration award binding on the parties. In its 1984 observation, the Committee of Experts noted that under Decree No. 1255 which extended until 30 May 1984 Decree No. 996 (National Emergency Act), the provisions relating to strikes and work stoppages remained suspended. In 1985 the Committee of Experts noted with satisfaction that the right to strike had been re-established by Decree No. 1480 of 6 August 1984.
122. In its 1986 observation, the Committee of Experts noted with concern the contents of Decree No. 130 of 31 October 1985 confirming and amending Decree No. 128 of 15 October 1985 on the state of national emergency, which suspended for one year a number of basic rights, such as the right of peaceful assembly and right of public demonstration, the right of association, the right to organise and the right to strike. Subsequently, in its 1987 observation on the application of Convention No. 87, the Committee of Experts noted that Decree No. 245 of 9 January 1987 established the national state of emergency for a period of one year, thus continuing to suspend certain basic trade union rights.
123. In its 1988 observation, the Committee of Experts noted the contents of Decrees Nos. 296 and 297 of 19 January 1988 repealing Decree No. 1233 (which had set up the people's anti-Somoza tribunals) and repealing Decrees Nos. 245 and 250 of 1987 which had extended the state of emergency; furthermore, the Committee noted that the state of national emergency was lifted on 19 January 1988.
124. In its 1989 observation, the Committee of Experts noted the conclusions of the Committee on Freedom of Association on the various cases pending and on the complaint submitted under article 26 of the Constitution of the ILO by several employer delegates to the 73rd Session of the International Labour Conference in June 1987. The Committee of Experts also examined the report submitted by the representative of the Director-General who had carried out a study mission in Nicaragua in September-October 1988. The Committee of Experts referred to the restrictive provisions contained in the General Provisional Act on means of communication of 1979 but noted with interest that the right to strike, suspended during the state of emergency, had been restored.
125. Furthermore, the Committee of Experts recalled, as it had done in its previous observations, the provisions or omissions from the legislation which were not in accordance with Convention No. 87 and referred to the need to:
- guarantee, by a specific provision, the right of public servants, self-employed workers in the urban and rural sectors and persons working in family workshops to associate in defence of the occupational interests of their members;
- abolish the requirement of an absolute majority of the workers of an enterprise or work centre for the formation of a trade union (section 189 of the Labour Code);
- amend the provision on the general prohibition of political activities by trade unions (section 204(b) of the Code);
- amend the obligation placed on trade union leaders to present to the labour authorities the registers and other documents of a trade union on application by any of the members of that union (section 36 of the Regulations on Trade Union Associations);
- lift the excessive limitations on the exercise of the right to strike, requiring a majority of 60 per cent for calling a strike, prohibiting strikes in rural occupations when the produce may be damaged if it is not immediately available, and enabling the authorities to end a strike that has lasted 30 days through compulsory arbitration if no settlement has been reached after the date authorised for the strike (sections 225, 228 and 314 of the Code).
126. At the 76th Session of the International Labour Conference, the Government representative of Nicaragua stated that the above-mentioned Act on means of communication had been repealed by the decree promulgated by the National Assembly on 21 April 1989, which contained Act No. 57 on media and social communication.
The Right to Organise and Collective Bargaining Convention, 1949 (No. 98)
127. Convention No. 98 was ratified by Nicaragua in 1967 and entered into force for Nicaragua on 31 October 1968. Since that time, the Committee of Experts has made seven direct requests to the Government (1970, 1971, 1972, 1974, 1981, 1983 and 1985), made a general observation in 1979 and four observations under this specific Convention.
128. When commenting in 1980 on this Convention, the Committee of Experts referred to the observation made the same year on Convention No. 87.
129. In its observation in 1987 on the application of Convention No. 98, the Committee of Experts referred to Decree No. 530 of 24 September 1980, which amended section 22 of the Labour Code and stipulated, under section 1, that the approval of the Ministry of Labour was needed for collective agreements, thus contravening Article 4 of the Convention. Furthermore, the Committee of Experts referred to the wage scale policy that the Government had started applying in 1984 by means of the National Labour Wages Organisation System (SNOTS), which classified occupations and established a wage scale. In this respect, the Committee of Experts noted that it had "expressed the opinion on many occasions that in cases when governments consider that the economic situation requires stabilising measures to be taken which hinder the free determination of wage rates through collective bargaining, such restrictions should only be imposed as an exceptional measure and only to the extent that is necessary; they should only be applied for a reasonable period of time and should always be accompanied by adequate guarantees protecting the living standards of the workers".
130. In its 1988 observation, the Committee of Experts recalled the need to repeal Decree No. 530 of 24 September 1980 and pointed out that economic measures concerning the fixing of wages through SNOTS should be of an exceptional nature.
131. In its 1989 observation, the Committee of Experts requested the Government to take the necessary measures to repeal Decree No. 530 in order to give full effect to Convention No. 98; it also noted with interest that according to information gathered during the study mission to Nicaragua in September-October 1988, SNOTS was only applied as a reference point and thus wages could be established freely.
The Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144)
132. Nicaragua ratified Convention No. 144 on 1 October 1981 and this Convention entered into force for Nicaragua on 1 October 1982.
133. Since it entered into force, the Committee of Experts has made three direct requests to the Government on this Convention (1984, 1986 and 1987). In them it requested information on the possible setting up of a competent tripartite committee and on the practical application of the Convention regarding consultation on ILO standards.
CHAPTER 6
DIRECT CONTACTS AND STUDY MISSION
134. In accordance with the procedure established by the Committee on Freedom of Association, and the procedure for the regular supervision of the application of Conventions Nos. 87, 98 and 144 by Nicaragua, two direct contacts missions were carried out in 1981 and 1983, and a study mission took place in 1988.
135. Within the framework of Case No. 1084 submitted by the International Organisation of Employers (IOE) in October 1981, the Director-General of the ILO requested the Government "as a matter of urgency to consent to an ILO mission to discuss the questions relating to this case with the Nicaraguan authorities". The Government accepted this proposal and the mission took place from 29 November to 4 December 1981. The allegations referred to the detention of four leaders of COSEP, including its president and vice-president, on the grounds that they had violated Act No. 5 of 20 July 1979 concerning the maintenance of public order and security and Act No. 812 of 9 September 1981 declaring a state of economic and social emergency, and that they had signed a public letter to the Co-ordinator of the Junta of the Government.
136. After examining the report of the study mission and the information provided by the Government, the Committee on Freedom of Association, at its February 1982 meeting, noted the release of the detained and sentenced leaders and submitted a number of recommendations to the Governing Body. In particular, the Committee expressed the hope that the release of these employer leaders would contribute "positively to the restoration of a climate of dialogue rather than confrontation between the authorities and the employer sector". The Committee also expressed deep regret at their conviction and detention as well as the length of time that the employer leaders had had to spend in prison. (Endnote 3)
137. During the 69th Session of the International Labour Conference (June 1983), the Government stated that under a Decree of 31 May 1983, a number of provisions contained in the Regulations on Trade Union Associations that had not been in conformity with Convention No. 87 had been amended and repealed. Furthermore, the Government pointed out that it had submitted the draft of a new Act on trade unions to the workers and proposed a direct contacts mission with a view to examining questions relating to the application of Convention No. 87, particularly in the light of the new decree adopted by the Government.
138. The Director-General of the ILO appointed a representative who carried out a direct contacts mission between 4 and 13 December 1983. The representative of the Director-General took the opportunity of gathering information on the cases pending before the Committee on Freedom of Association and discussed with the labour authorities the problems inherent in the legislation in force relating to the application of Conventions Nos. 87 and 98; in addition, he examined the provisions of Decree No. 1260 dated 31 May 1983, which introduced far-reaching amendments to a number of provisions in the Regulations on Trade Union Associations that had been commented upon by the Committee of Experts. The competent authorities submitted to the representative of the Director-General two pieces of draft legislation relating to trade union organisations and their regulations. (Endnote 4)
139. At its February 1988 meeting, the Committee on Freedom of Association, when examining the cases pending against Nicaragua (Cases Nos. 1129, 1298, 1344, 1351 and 1372) and the complaint submitted under article 26 of the ILO Constitution, decided that it would examine at its next meeting, in May 1988, the advisability of setting up a Commission of Inquiry. (Endnote 5)
140. The Government submitted new observations on the current cases before the Committee on Freedom of Association as well as on the above-mentioned complaint and, in a communication dated 23 May 1988, requested the Committee to send a study mission to Nicaragua with a view to elucidating many aspects of the case that seemed contradictory.
141. At its May 1988 meeting, the Committee on Freedom of Association made the following recommendation to the Governing Body:
Having received after its discussions a letter from the Government dated 23 May 1988 which proposes the setting up of a study mission, along the lines which the Committee itself had envisaged, the Committee recommends the Governing Body to agree to this proposal. The Committee will thus be in a position at its November 1988 meeting to give a final reply to the question of what effect should be given to the complaint lodged under article 26 of the ILO Constitution. (Endnote 6)
142. The study mission took place from 28 September to 5 October 1988 and gathered information on the allegations pending before the Committee (Cases Nos. 1129, 1298, 1344, 1442 and 1454), on the observations made by the Committee of Experts on the application of Conventions Nos. 87, 98 and 144, on the complaint lodged under article 26 of the ILO Constitution and on other issues. (Endnote 7) The report of the study mission formed the basis of the subsequent examination of the issues before the Committee.
III. THE COMMISSION'S EXAMINATION OF THE CASE
The Commission's terms of reference
143. In their communication of 30 March 1990 the complainants set out the points which they wished the Commission to decide on and which included allegations examined by the Committee on Freedom of Association since the first complaint presented against the Sandinista Government in November 1980 (Case No. 1007). They involved questions relating to the violent death of J. Salazar Argüello, President of COSEP, on 17 November 1980; the preventive detention in 1980 of COSEP leaders who were subsequently acquitted; the sentencing in 1981 of COSEP leaders, inadmissible treatment of them during their detention and their subsequent release; the ban on participating in overseas employer and union meetings; the confiscation of land belonging to COSEP officials as discriminatory measures on the part of the Government; the revision of the sentences handed down by the people's anti-Somoza courts; compatibility of the legal texts on freedom of information and collective agreements, as well as the numerous suspensions of civil and trade union rights during the state of emergency with ILO standards and principles in these areas; compatibility of the censorship and closures of the written and spoken press with freedom of information; compatibility of the sentencing of the director of the Nicaraguan Institute for Economic and Social Studies with freedom of information and judicial guarantees. In summary, the complainants justified this request with the following reasons:
Since the Committee was not able to confront either the complainants or the Government on many of the questions raised in the allegations, it has not been able to reach an opinion since the Government has given a version of the facts which is in total contradiction with that given by the complainants. Despite the praiseworthy efforts of the two ILO missions sent on the spot, in 1981 and 1983, numerous questions are still outstanding as the Government has not replied to the allegations or to the requests made by the Committee or has not fulfilled the promises it made to investigate a given situation.
The complainants and the IOE repeated this position during the hearing held in Geneva.
144. The Government, in a communication dated 20 April 1990, referred to this request, pointing out that the complainants' wish is that the Commission "pronounce on a series of incidents which have been overtaken by events and which have already been the subject of definitive conclusions by the Committee on Freedom of Association". According to the Government: "To reopen proceedings which have already been closed would set a dangerous precedent and would promote arbitrariness in the procedures established by the International Labour Organisation for the examination of complaints."
145. The Commission considers that it should refer to the procedure followed by the Governing Body in deciding to set up this Commission of Inquiry so as to determine the limits of its mandate.
146. At its November 1987 Session, the Governing Body, having received the complaint presented under article 26 of the Constitution, considered it should refer it to the Committee on Freedom of Association for the formulation of recommendations both on the cases pending against Nicaragua and on this article 26 complaint so that the Governing Body could decide on the measures it should take with respect to this complaint. According to the Governing Body, its consideration of whether the complaint in question should be referred as a whole to a commission of inquiry had to be made in the light of: (i) the recommendations of the Committee on Freedom of Assocation on the aspects of the complaint relating to freedom of association; (ii) the information that the Government of Nicaragua might supply on the complaint; and (iii) the recommendations of the Committee on Freedom of Association on the cases still pending before it.
147. The Committee proceeded to examine the outstanding cases (Nos. 1129, 1298, 1344, 1351 and 1372), the new cases (Nos. 1442 and 1454) and the complaint presented under article 26 of the Constitution over a period of six meetings. At each of them it presented its corresponding reports to the Governing Body, containing conclusions on the allegations presented and recommendations on the action to be taken in relation to the complaint.
148. These recommendations were based on developments in the situation regarding the pending allegations, including the question of compatibility of the legislation with Conventions No. 87, 98 and 144. In its 261st Report (November 1988), the Committee came to its conclusions in the light of the study mission which had been carried out by a representative of the Director-General and which examined the situation both as regards the trade union legislation, civil liberties and the cases pending before the Committee: cases presented by workers' organisations (Nos. 1129, 1298 and 1442) alleging deaths and detentions of trade unionists, hunger strikes, threats to trade unionists; and complaints presented by employers' organisations (Nos. 1344 and 1454) alleging in particular the confiscation of land belonging to employers' leaders and the detention and imprisonment of the director of an agency run by the COSEP.
149. Lastly, when it presented its 269th Report (November 1989), the only allegations remaining before the Committee concerned Cases Nos. 1442 and 1454, as well as the points it had examined with regard to the complaint presented under article 26 of the Constitution. It was in this report that the Committee finally decided to recommend that the Governing Body refer the examination of the case as a whole to a commission of inquiry. It based this decision on the conclusions set out in that very report, which are cited above in paragraph 18, and which lay down the parameters of its terms of reference.
150. It should be pointed out that, if the Governing Body decided finally to submit the case to a commission of inquiry, this was because it considered that the situation was still not satisfactory with regard to the pending issues referred to in that paragraph. If that had not been the case, such a commission would probably not have been set up.
151. Consequently, this Commission considers that it has to examine only those questions mentioned previously in paragraph 18 and which, arising out of the complaint presented under article 26 of the Constitution and the cases submitted to the Committee on Freedom of Association including the legislation and practice in relation to Conventions Nos. 87, 98 and 144, were still formally pending before the Committee when the Governing Body took its decision, as well as any subsequent developments that had taken place in these areas. Indeed, the Commission could not leave aside consideration of the changes affecting the situation if it was to give an appreciation of the matter as a whole, as had been stated by the Governing Body. (Endnote 8) In this way it hopes to be able to make a positive contribution, as the Governing Body has also stated, to solving the issues facing the country in the field of labour and industrial relations. With this in mind, the Commission felt that it had to take all the measures necessary to obtain full and objective information on the various questions, taking account of "the public importance of the issues raised" when these are the subject of proceedings instituted by virtue of article 26 of the Constitution of the ILO. (Endnote 9)
152. In accordance with the above and following the practice adopted by other similar commissions, this Commission will examine the separate aspects of the case on the basis not only of the information provided by the parties, but also taking into consideration the observations made previously by the Committee on Freedom of Association, including in particular the information collected by the study mission carried out by representatives of the ILO in 1988, and that available from the Committee of Experts on the Application of Conventions and Recommendations and the Conference Committee on the Application of Standards. The information gathered directly by the Commission includes statements made during the hearing held by the Commission in June 1990 and the testimony received during its stay in Nicaragua.
CHAPTER 7
DEVELOPMENTS IN THE LEGAL SITUATION
Background concerning the facts and measures taken
153. As already mentioned, the present Government took over on 25 April 1990 after winning the elections of 25 February 1990. There was thus a new situation with a very different political regime.
154. In its last days, the Sandinista Government adopted a series of measures on issues of interest to the inquiry, which should be mentioned: Act No. 81 of 13 March 1990 in respect of a general amnesty and national reconciliation; Act No. 70 of 16 March 1990 in respect of careers in the civil service and the administration; Act No. 97 of 20 April 1990 to reform and supplement the Labour Code. The new Government reacted to this legislation with a number of measures some of which had important consequences as regards relations between the Government and the pro-Sandinista unions.
155. Act No. 81 was repealed by the Amnesty Act, No. 100 of 10 May 1990; the application of Act No. 70 was suspended by Legislative Decree No. 8/90 of 10 May 1990; and Act No. 97 was substantially amended by Act No. 102 of 19 May 1990 to reform and supplement the Labour Code. A few days earlier, on 11 May, the Government had also promulgated Legislative Decree No. 10/90 in respect of the provisional leasing of land and Legislative Decree No. 11/90 in respect of the review of confiscated property.
156. In May a large strike took place in the public administration for which the reasons given were the suspension of the Act in respect of careers in the civil service and the administration, which guaranteed the job stability of state workers, the provision in Legislative Decree 8/90 providing for the review of collective agreements reached between state bodies and their workers between 25 February and 25 April 1990, and the dismissal of state employees. The strike ended with the agreement of 16 May 1990 between the Government, the Sandinista Confederation of Workers and the public sector trade union organisations.
157. On 19 May 1990, Act No. 101 was promulgated to amend the Act in respect of careers in the civil service and the administration. The new Act amends the definition of public employees and government-appointed administrators (who were not covered by Act No. 70), which category is expanded.
158. At the beginning of July, shortly before the Commission arrived in Managua, a new strike broke out and spread rapidly. The pro-Sandinista trade unions, forming a new Workers' National Front, had presented a wide range of claims and grievances (in respect of such matters as minimum remuneration, pensions, the re-establishment of Act No. 70, large-scale dismissals, the suspension of Legislative Decrees Nos. 10-90 and 11-90, the reactivation of industry, state finance for building projects and public service enterprises, etc.). The Government pointed to the political nature of the strike. The strike movement became markedly violent, causing the police and armed forces to intervene to restore order. On 11 July the Government reached full agreement with the Front and the strike came to an end.
Amendments to trade union legislation
159. The Sandinista Government's Act No. 97 to reform and supplement the Labour Code made significant amendments to the sections on collective agreements (in addition, establishing a new procedure for resolving collective disputes), trade unions and the suspension and termination of contracts of employment (adding a further section on dismissal). Furthermore, it repealed the regulations on trade union associations, Decree No. 530 which required the approval of collective agreements, and other provisions in the Labour Code and related laws and regulations.
160. In adopting Act No. 102 to reform Act No. 97, the new Government repealed the sections on trade unions, on the suspension and termination of contracts of employment and on dismissals. The section on collective agreements, however, has been only partly amended and the new procedure that had been established for resolving collective disputes has also been repealed. The repeals for which Act No. 97 made provision were not carried out. (Endnote 10)
161. The present situation is therefore as follows: the pre-Act No. 97 Labour Code remains in force except as regards collective agreements (which are governed by Act No. 97, subject to some amendments). Decree No. 530, which the Committee of Experts examined, is not in force having been implicitly repealed by the new provisions on collective bargaining.
162. As regards the public sector, Act No. 70 in respect of careers in the civil service and the administration, adopted by the Sandinista Government recognises the right of all workers in the public service to set up trade unions, to trade union immunity, to collective bargaining, to strike and other trade union guarantees which the law affords to workers in general. Under Legislative Decree No. 8 of 10 May 1990, the new Government empowered the Ministry of Labour to issue regulations under Act No. 70, which could not be applied until these regulations came into force. The Legislative Decree was declared unconstitutional by the Supreme Court in its ruling of 14 August 1990. However, the application of Act No. 70 is in fact suspended, by virtue of section 2 of Act No. 101 to reform the Act in respect of careers in the civil service and the administration which provides that the issuing of regulations under Act No. 70 is a matter for the President, who may delegate his powers to the Ministry of Labour.
163. The present legal situation resulting from the legislative changes is analysed hereafter in relation to the aspects on which the Committee of Experts had made observations.
The right to organise of public employees and other state workers
164. Public employees are not covered by section 9 of the Labour Code and consequently do not enjoy the right to organise. The situation is different in the case of state "wage earners" and "salaried employees" who are considered to be covered (section 187). It would seem that both they and public employees as such were meant to be covered by Act No. 70 in respect of careers in the civil service and the administration. This is clear as regards public employees and salaried employees but less so in the case of wage earners in state undertakings, for according to section 4 of Act No. 70, "public service workers are considered to be those persons who work on a permanent basis for state institutions, who have taken up this employment through the procedures laid down in this Act and the regulations issued under it, and who are paid out of the national budget or out of the budget of one of the institutions for which they work. For the purposes of this Act, the terms public employee, salaried employee, public servant and worker have one and the same meaning". However section 5, which specifies the coverage of the Act refers only (apart from the central state administration, local administration, autonomous bodies and certain other institutions) to "the administrative staff of state undertakings". It is thus not clear whether non-administrative staff, such as production workers, are included.
165. As already stated, Act No. 70 which recognises the right to organise, to collective bargaining and to strike of workers in the public service has been suspended.
Works unions
166. Section 189 of the Labour Code contains a provision which prevented the setting up of more than one works union. However the new section 23 of the Code, in line with the text of Act No. 97 (see below) recognises the possibility of the coexistence of two or more works unions, thus departing implicitly from section 189.
Collective bargaining
167. The main provisions now in force on collective bargaining and collective agreements are the following:
168. The parties to collective bargaining may on the one side be an employer, a group of employers and one or more associations of employers, and, on the other side, one or more organisations of workers enjoying legal status. The purposes of a collective agreement are, inter alia, to determine the general conditions of work, to establish the right of workers to participate in management, and to make provision for the improvement and respect of mutual rights and duties (section 22 of the Code). This section makes no reference to the need for an agreement to be approved by the Ministry of Labour.
169. The workers' organisations, the employers and the associations of employers that are most representative in the sphere dealt with in the agreement may take part in the bargaining. Where there is more than one organisation with the right to bargain, all are entitled to take part in the bargaining according to their representativity (section 23).
170. The collective agreement may be reached for a work centre, an undertaking, a branch of production or a labour sector; it is binding on all persons coming within its scope (section 26).
171. No law or regulation may impose conditions that are inferior to or in breach of those contained in the agreement (section 29).
172. The agreement may not be renegotiated before expiry unless substantial changes occur in the economic and social conditions of the country or in the situation covered by the agreement and are attested to by a joint committee (section 30).
CHAPTER 8
CIVIL LIBERTIES AND THEIR RELATION TO TRADE UNION RIGHTS
The state of emergency
173. In the complaint presented under article 26 of the Constitution, the complainants stated that Nicaragua had for a number of years been in a virtually uninterrupted state of emergency, which was constantly being extended. The state of emergency was used by the Government to suppress all the rights and freedoms that are essential to the proper application of Convention No. 87 and its purpose was to quash any opposition to the interests prevailing.
174. In its reply of 5 January 1988, the Government maintained that the state of emergency had been reintroduced as a legal mechanism of defence in respect of the war waged by the United States against Nicaragua and that its purpose was to deal with counter-revolutionary activities, thus preserving the rights of the Nicaraguan people. The Government added that none of the rights suspended was a strictly trade union right, the only labour right suspended being the right to strike, which was a workers' right whether or not they belonged to a union. The state of emergency had not interfered with the trade union movement or prevented workers from being free to join trade union organisations.
175. The state of emergency was lifted on 18 January 1988 under Decree No. 247. Both the Committee on Freedom of Association and the Committee of Experts requested the Government to provide information on the consequences of this measure as they affected organisations of workers and of employers. The study mission which visited Nicaragua from 28 September to 5 October 1988 examined this question.
Judicial guarantees
176. As pointed out by the study mission in its report, at the same time as the lifting of the state of emergency, Decree No. 296 of 19 January 1988 abolished the anti-Somoza people's courts. The COSEP, the Permanent Congress of Workers (CPT) and the Confederation of Workers of Nicaragua (CTN) considered that this made little practical difference since the majority of members of the people's courts had been incorporated into the normal judicial system. It was alleged that the judiciary was not independent of the executive and that sentences were handed down on the basis of subjective evidence, that the judges often treated simple clues as evidence, that decisions were based on what was called "healthy revolutionary criticism" and that the right to defence was not fully respected.
177. The President of the Supreme Court informed the study mission that there had been only one anti-Somoza people's court in Managua (of both the first and the second instance) and two other courts of the first instance in the provinces. There were three judges to each court (of whom only one was a jurist) which meant that the number of persons incorporated into the judiciary could only be very limited, especially since only certain members of the people's courts were incorporated. The sentences handed down by these courts could not be appealed against to the Supreme Court. Once the state of emergency had been lifted, the question arose whether these sentences could be reviewed. The President of the Supreme Court considered that the sentences had the status of es judicata and could not be reviewed. All that could be done for the persons who had been convicted was to grant them an amnesty. According to the National Commission for the Promotion and Protection of Human Rights, review of these sentences was possible by means of a special appeal for which the legislation made provision.
178. The study mission was informed, both in government circles and in those of the opposition, that the legislation on judicial procedures needed to be amended. The Criminal Procedure Code dated back to 1872 and the Police Code to the beginning of the century.
179. When the Committee on Freedom of Association examined this information at its meeting in November 1988, it concluded that the Government should take advantage of the peace process that was under way in Nicaragua to adopt legislation that would broaden judicial safeguards. (Endnote 11) But the IOE, in its letter of 24 August 1989, informed the Committee that the Government had failed to follow up this observation. (Endnote 12)
180. Shortly afterwards, in a communication of 20 October 1989, the Government stated that it had adopted Act No. 65 to amend the Act in respect of the judicial powers of the Sandinista police, suspending all its judicial functions (trials and sentencing) so that the police remained competent only in respect of investigations into and penalties in respect of offences committed by its own members. (Endnote 13)
181. During the visit of the Commission of Inquiry to Nicaragua, the Supreme Court judges who were interviewed explained that initially, after the victory of the Sandinista movement, special courts were set up which comprised two instances, both of which had lay judges and sometimes jurists. The defence counsel, who were appointed officially, often acted out of fear. The proceedings were hasty, the prosecutors produced evidence at the last moment and the sentences were generally harsh. These special courts were replaced by the anti-Somoza people's courts, which followed a similar procedure, i.e. of an exceptional nature, though the penalties were less severe. These exceptional courts were outside the normal judicial system and had their own appeal court; it was not possible to appeal to the Supreme Court against their sentences. Once the anti-Somoza people's courts had been dissolved, the matters they had dealt with came before the ordinary courts.
182. The Deputy Attorney-General stated that since the anti-Somoza people's courts had been eminently political in nature, they had lost all notion of impartiality. In view of this political factor, the rights of the defence were restricted, the trials were carried out hastily and the officially appointed defence counsel frequently shared the political outlook of the courts.
183. The Director of the Standing Commission on Human Rights, referring to the evidence in the proceedings of the anti-Somoza people's courts, stated that nearly all the persons on trial accused themselves of having committed offences. He considered that this was abnormal and indicative of ill treatment, which varied according to the place of detention.
184. As regards Act No. 65 to amend the Act on the judicial powers of the police, the Supreme Court judges stated that it did little to change the situation since the police were carrying on their investigation functions and statements made to them were being used in trials. Draft legislation was before the National Assembly with a view to modifying the law in this respect so as to abolish these police powers.
185. The Deputy Attorney-General explained to the Commission that the reform of the Act on the judicial powers of the Sandinista police empowered the police to conduct investigations in respect of a case which was then brought before the competent judge. Statements made to the police had relative value only. It was planned to restrict these police powers so that instead of undertaking investigations, the police would bring arrested persons before the judicial authority within 72 hours of arrest, as is laid down in the Constitution.
186. The Chief of Police stated that the Act on the judicial powers of the Sandinista police was issued at the beginning of the 1980s with a view to standardising the investigative powers of the police. Under the Act, a position of police examining magistrate was created for each territorial unit. The police could hold a person suspected of having committed an offence for a period of 72 hours after which he had to be brought before the above-mentioned examining magistrate. This official, who was required to have legal knowledge, had a maximum of six days within which to examine the causes for the arrest, after which he was obliged to bring the detainee before the Attorney-General's office, which had to decide within three days whether or not the person should be brought to trial.
187. In the case of drug-trafficking or cattle-stealing offences the police had the judicial power to inflict sentences of up to two years. In 1987, under the new Constitution, a circular was issued proclaiming the de facto annulment of these judicial powers. However, the Police Code allows for the imposing of administrative penalties of up to six months in cases of offences and misdemeanors.
188. In October 1989 the Act was amended by Act No. 65, which became known as the Sandinista Police Functions Act. The latter repealed the judicial powers of the police as well as the function of the police examining magistrate.
189. The Commission observed that Act No. 65 empowers the police to undertake investigations into all activities considered to be offences and misdemeanors and to initiate criminal proceedings in respect of them. These powers would be exercised by the relevant departments in each of the units of the Sandinista police under the responsibility of a chief of criminal proceedings. Arrests would be made only on the strength of warrants signed by the chief of criminal proceedings or whoever is exercising his functions, with the exception of cases of flagrante delicto.
190. All arrested persons must be brought within 72 hours before the chief of criminal proceedings, who may release them or order their detention for up to six days.
191. As regards the draft legislation before the Assembly to amend Act No. 65, the Commission found that it would reduce the time an arrested person was kept in detention and would devolve certain powers to the bodies involved in the judicial proceedings; it would also speed up the ruling of the chief of criminal proceedings with a view to safeguarding the guarantees afforded to the defendant and avoiding the possibility of abuses by either the police body or the attorneys and court judges, who sometimes delay their rulings. The Attorney-General is said to have stated that the police should confine itself to investigating and not initiating proceedings, which lies solely within the jurisdiction of the judges and attorneys.
192. With regard to the Code of Criminal Procedure, both the members of the Supreme Court and the Deputy Attorney-General indicated that the National Assembly would like to see it amended. One tendency would like trial by jury, which used to exist in the past to be restored, while another is trying to secure a fuller reform of the Code in view of its age.
Detention of trade unionists, amnesty and pardon
193. The question of amnesty and pardon was raised by the study mission in connection with the detention of trade unionists. According to the authorities pardon was granted to persons who were serving prison sentences, while amnesty was reserved for those who had been involved in armed activities against the Government and who wished to lay down their arms and return to civilian life. Between 30 July 1987 and 30 August 1988, 1,256 persons benefited from such measures out of a total of 4,647 since 1983. In November 1987, 987 persons were pardoned. Under the Sapoa agreements with counter-revolutionary bodies, according to the authorities, an amnesty calendar had been established. By 27 March 1988, 100 prisoners had been released under this amnesty.
194. The mission was unable to obtain any information on the number of trade unionists who had benefited from the amnesty since the authorities stated that they knew nothing about the trade union membership of the persons who had been amnestied. In opposition circles it was considered that the amnesty was insufficient and that, in any case, trade unionists were still being arrested and sentenced.
195. More specifically, the mission referred to the complaint presented by the ICFTU in which it denounced the arrest, on 20 June 1988, of the following members of the Confederation of Trade Union Unity (CUS): Luis Alfaro Centeno, Pastor García Matey, Mariano Romero Melgara, Dámaso González Sánchez, Jesús Cárdenas Ordóñez, Teodoro Matey Romero, José Matey Ordóñez and Rafael Ordóñez Melgara. The mission also referred to the arrest of Miguel Valdivia, a member of the Peasants' Union of Posoltega, by members of the Sandinista army. The Government had promised to send information on these matters. The allegations concerning these arrests were still pending before the Committee on Freedom of Association when it examined cases concerning Nicaragua in its 267th Report (May 1989).
196. The Government furnished information in its communications of 30 October and 2 November 1989, which were received too late to be examined by the Committee at its meeting in November 1989. (Endnote 14) According to the Government, Luis Alfaro Centeno, Pastor García Matey, Jesús Cárdenas Ordóñez, Rafael Ordóñez Melgara and Manuel Valdivia had never been arrested. The situation regarding the other persons who were named was as follows: Dámaso González Sánchez had been arrested on 26 June 1989 (sic) for collaborating with armed groups; he was subsequently amnestied. Mariano Romero Melgara, who had been arrested on 9 March 1986 for the same reasons, was released in November 1986. Teodoro Matey Romero had also been arrested on the same grounds and was pardoned on 15 May 1986. Finally, José Dolores Matey Ordóñez who had been arrested for the same reason in March 1986, was released in May of the same year. (Endnote 15)
197. In its 267th Report, the Committee had requested the Government (Endnote 16) to provide information on the situation of Milton Silva Gaitán and Arcadio Ortíz Espinoza, leaders of the Union of the National Bus Company, who were sentenced in 1983 to five and eight years (subsequently reduced in the latter case to six years) imprisonment respectively for acts of sabotage, as stated by the study mission in its report. Previously, the Committee had requested the Government to consider the adoption of amnesty or reduced-sentence measures in their respect. (Endnote 17) In its letter of 30 October 1989, the Government stated that both were free and that they had only been under arrest for a few days.
198. As regards the more general question of amnesty and pardon measures, the IOE, in its letter of 12 April 1989, stated that the amnesty for which provision was made in the accords concluded by the Central American Heads of State had had no positive influence on the matters submitted to the Committee. In fact the amnesty, which had been reduced to a pardon (considered to be a less clement measure) had not been accorded to any detained employers' or workers' leader. (Endnote 18) In another communication to the Committee, dated 24 August 1989, the IOE raised the question of whether the proceedings instituted against employers' and workers' leaders, who were summarily sentenced and then released, were still before the courts and, if not, whether a pardon extinguished the court proceedings without however expunging the sentence from the record. (Endnote 19)
199. In a letter dated 20 October 1989, the Government informed the Committee that it had approved a Decree pardoning 457 persons who had been imprisoned for infringing the Act respecting the maintenance of order and public safety.
200. On 13 March 1990 the Sandinista Government adopted the General Amnesty and National Reconciliation Act (No. 81) "in accordance with the accords signed by the Central American Presidents and with the agreement reached with the Nicaraguan political forces in order to achieve national reconciliation". The amnesty was granted "fully and unconditionally" to: (1) Nicaraguans, whether or not resident in the country, who had committed offences against public order and against the national and international security of the State and other related offences; (2) Nicaraguans, whether civilian or military, having committed offences while investigating criminal activities as referred to under (1) above; (3) public employees and salaried employees presumed to have committed offences specified in the Penal Code and who had not been prosecuted. The pardon that was granted covers civil and administrative liability. The amnesty covered the period from 19 July 1979 to the date when the Act came into force.
201. When the new Government took over, it promulgated the Amnesty Act (No. 100) of 10 May 1990, repealing the former Act. Act No. 100 grants full and unconditional amnesty in respect of all political offences and related criminal acts committed by Nicaraguan citizens up to the date of publication of the Act. The amnesty covers persons who are under arrest, being tried, who have been sentenced, who are awaiting trial, who have not yet been captured, who have been convicted and have completed their sentence and those who have simply been pardoned. The Act provides that the authorities must release immediately all persons to whom the amnesty applies and who are in their custody or under their jurisdiction. Furthermore, all authorities having Nicaraguan citizens under their orders or in their custody must send a detailed list of these persons to the Ministry of the Interior, stating the reason why they are being held. This list was to be furnished within six days of the publication of the Act so that it could be ascertained that no persons benefiting under the Act remained in the prisons or detention centres.
202. When in Geneva, the Minister of Labour explained the scope of the Amnesty Act, which cancels out the penal liability of all public employees of the previous Government, including those who were connected with the Somoza Government. Its scope is so broad that at the present moment no one is being held and the trade unionists who were held during the Sandinista regime are completely free. Arrangements have been made by the President's Office for the cases of these trade unionists to be considered by the Ministry of Labour with a view to reinstating them in their previous jobs and this is now being carried out. The Minister of Labour repeated that the Amnesty Act even covers common law offences that are related to political ones. The general amnesty forms part of the national reconciliation and reconstruction plan which is the present mainspring of action in Nicaragua. Going on to refer to the distinction between pardon and amnesty, the Minister explained that the former applied to criminal matters but did not affect civil liability. Amnesty, on the other hand, represented a complete pardon. Consequently, where offences and misdemeanors have been committed, legal action cannot be taken against persons who have been pardoned under the Amnesty Act.
203. In Managua, the Supreme Court judges repeated to the Commission that no trade unionists had remained in prison after the promulgation of the amnesty Acts.
204. The Chief of Police informed the Commission that under both the Sandinista Government and the present one, no one was imprisoned on account of trade union activities, only for offences that had been committed and specific activities. No trade unionists who had been arrested or sentenced under the previous Government for an offence that was not of a criminal nature is now in prison. Those who were in that situation were released following the amnesty.
205. Trade union leaders of the General Confederation of Labour (i) explained to the Commission that under the Sandinista Government trade unionists were imprisoned for only a short time, which meant that the Amnesty Act which came out of the peace talks and the Amnesty Act of the new Government did not benefit any trade unionists arrested as such. The first amnesty was intended for the "Contras", while the second represented a pardon for persons who had been imprisoned and was designed to promote national reconciliation with the people.
206. The Director of the Standing Commission on Human Rights stated that the first Amnesty Act was issued on 13 March 1990 after many people had been pardoned. He explained that the State Security Department of the Sandinista Government had intimidated independent trade unionists between 1982 and 1986 and that many had been prosecuted, including Mr. Carlos Huembes, leader of the CTN. The members of the executive of the Union of the National Bus Company (ENABUS) were sentenced to long terms of imprisonment, as was the case with Mr. Gaitán and and Mr. Espinoza, who were later pardoned.
207. He added that under the previous Government, independent trade unions shrank in numbers since, although the Government gave up applying measures against trade union leaders, it penalised union members which is why the membership declined.
208. He stated that in 1989 the Act on the Maintenance of Order and Public Security was rarely enforced and there were few arrests. The Act was repealed on 30 October 1989 following the national talks between the parties and the meeting of Central American presidents. At present no trade unionists are in prison.
209. The General Secretary of the Workers' Front concurred that during the last period of the Sandinista Government no action was taken against the leaders of independent trade unions but against their members.
Arrest of the Director of a COSEP agency
210. The IOE and the COSEP alleged that on 31 May 1988 Mr. Mario Alegría Castillo, the Director of the Nicaraguan Institute for Social and Economic Studies (INIESEP), a COSEP agency, was arrested and imprisoned. Mr. Alegría was accused of being a foreign intelligence service agent, of having fraudulently obtained state documents and of having organised a network of informers in certain government institutions. According to the complainants, the constitutional right to defence had been violated when the Government made Mr. Alegría and another person involved in the same matter appear on an official television programme to make statements which might have been prejudicial to their interests as defendants. The complainants added that the documents mentioned, which were supposedly secret, were widely circulated in opposition circles in Nicaragua. Mr. Alegría was sentenced to 16 years' imprisonment although, according to the complainants, there were no legal provisions on which to base the sentence, and the constitutional right to solicit, receive and publish information had been violated.
211. The study mission examined these allegations and gathered ample information on this case which is contained in its report.
212. The Attorney-General stated that according to the evidence Mr. Alegría purchased secret information, such as the Economic Plan for 1988-90, which defines the whole economic strategy in time of war. This information would enable the enemy to destabilise the country since it provides information on all the sources of financing and supply. The information was communicated to an official of the United States Embassy who was expelled from the country. The Attorney-General pointed out that anyone was free to undertake economic research in Nicaragua provided they contented themselves with official sources and did not infringe the law.
213. According to the Ministry of the Interior, Mr. Alegría was sentenced for violation of the Act on the Maintenance of Order and Public Security and for divulging official information classified as confidential.
214. The Director of the Standing Commission on Human Rights (CPDH) informed the study mission that the case had clear political overtones and that the documents referred to were passed around in opposition circles. He understood that the evidence on which the judge had based his decision consisted of a confession on video tape which had been filmed in prison. The proceedings were of a summary nature and lasted only 13 days.
215. The mission also noted in its report that it had not been allowed to interview Mr. Alegría, who was held at the "Zona Franca" prison in Managua, since this was not a labour matter.
216. The Committee on Freedom of Association examined this case after receiving the report of the study mission. The Committee recalled that the duties entrusted to Mr. Alegría by a COSEP agency consisted precisely in economic research and studies for which he needed to have access to information. The Committee also observed, with concern, that the charge was based mainly on statements said to have been recorded on the premises of the State Security Department. (Endnote 20)
217. In a communication of 2 November 1988, the IOE objected to the fact that Mr. Alegría was still in prison without the Court of Appeal having given a ruling in the matter, although the time-limit provided for in the Code of Criminal Procedure had long since expired. (Endnote 21)
218. Subsequently, on 13 February 1989, the Government stated that as part of the efforts it was making to promote a climate of coexistence and social harmony, the authorities of the Ministry of Labour had requested the President of the Republic to give special attention to the circumstances and present stage reached in the trial of Mr. Alegría with a view to considering a measure which, while respecting the national juridical order and full independence of state powers, would demonstrate the Government's desire for reconciliation, regardless of the guilt factors involved in the case. The same steps were being taken in respect of Mr. Guillermo Quant, a COSEP member, who had been sentenced for spying. (Endnote 22)
219. The IOE announced the release of Mr. Alegría in a letter dated 9 May 1989. The Managua Court of Appeal had found him innocent in a ruling handed down on 28 April 1989. According to the IOE, the court had substantially exceeded the period stipulated in the Code of Criminal Procedure for giving a ruling (ten months instead of six). The IOE considered that, in accordance with the International Covenant on Civil and Political Rights (article 9.5), which is binding on Nicaragua, both the COSEP and the INIESEP, as well as Mr. Alegría himself, were entitled to compensation for the moral and material prejudice they had incurred. (Endnote 23)
220. The Government confirmed his release in its letters of 3 and 22 May 1989. The ruling had been issued by the Criminal Chamber of the Court of Appeal of Managua (region III). Mr. Guillermo Quant had also been pardoned by the National Assembly. (Endnote 24) In a subsequent communication, on 24 May, the Government referred to the delay in handing down the sentence and attributed this to a probable backlog of work, as occurred in other countries too. It added that in any case the question of Mr. Alegría's compensation was a matter for the Nicaraguan judicial authorities - and not the Committee on Freedom of Association - to decide at the request of the person concerned. (Endnote 25)
221. The Commission which, as stated in Chapter 2, was not able to see Mr. Alegría, was informed by the Director of the Standing Committee on Human Rights that the sentence had been passed by a judge who was formerly assigned to an anti-Somoza people's court. On the question of compensating Mr. Alegría for the prejudice incurred as a result of this conviction, the Supreme Court judges informed the Commission that there was no such provision in Nicaraguan legislation nor any relevant jurisprudence.
Freedom of expression
222. The study mission found that the lifting of the state of emergency had made it possible to put an end to the censorship of the media. Nevertheless, according to a number of persons interviewed, difficulties were still encountered by a number of employers' and workers' organisations, as could be seen from the suspending of newspapers and radio programmes. The Government's view was that the opposition media in these cases had acted in breach of the law, publishing irresponsible lies and calumny.
223. At that time freedom of the press was governed by the Provisional General Act on the Media, promulgated on 13 September 1979 and later amended, particularly on 30 April 1981. Section 2 of the Act states that criticism and comments must be constructive and based on substantiated facts. Section 3, amended by Decrees Nos. 511 and 512 of 17 December 1980, stipulates that it is prohibited to publish, distribute, circulate, diffuse, exhibit, transmit or sell written matter compromising or undermining the internal security or the national defence of the country or written matter that compromises the economic stability of the nation or is likely to undermine it. In both cases information had to be submitted for approval, before publication, to the relevant authorities (Ministry of Defence and of the Interior and Ministry of National Trade). In the event of these texts being infringed, the press bodies could be suspended temporarily or definitively.
224. Further events connected with this legislation occurred after the mission had been informed about it. The IOE, in a letter of 22 Devember 1988, complained that on 13 October 1988 the Government had banned for an unlimited period of time the programme broadcast on Radio Mundial, entitled "The Nicaraguan". According to the IOE, this programme reviewed the main features of the economic and social situation in the country and proposed possible solutions with the collaboration of the COSEP and its members. On 2 November 1988 the Ministry of the Interior banned the broadcast by Radio Corporación of the programme "Seis en Punto" for having carried news concerning the dismissal of public employees of the Ministry of the Interior. The Government informed the ILO that these programmes had been resumed. (Endnote 26)
225. A new Act (No. 57) on the Media and Social Communication was promulgated on 21 April 1989. According to the IOE letter dated 9 May 1989, Chapters VIII to XI contained provisions enabling the Ministry of the Interior to admonish and order the temporary closing of communications media in a series of circumstances so vaguely defined as to permit the continuation of all the abuses of the recent past. For the IOE, this Act did not modify Decree No. 888 of 1982 which, combined with Decree No. 512 of 1980, granted the monopoly of economic data publication to a state body, the Nicaraguan Institute of Statistics and Enumeration (INEC). The complainant organisation maintained that these two Decrees constituted a breach of freedom of information in general and, in particular, of the rights of the Nicaraguan Institute of Economic and Social Studies (INIESEP), a COSEP agency, as well as of the rights of the COSEP itself to inform their members and the general public. In its reply of 24 May 1989, the Government stated that the Act had been adopted by the Legislative Assembly in which the various parties were represented, that it was more liberal than other similar laws in other Latin American countries, and that in any case the Committee on Freedom of Association was not competent to give a ruling on the matter. (Endnote 27)
226. It should be mentioned that section 35 of the Act listed the activities constituting infringements. These include broadcasts running counter to state security, national safety, peace and public order, the fraudulent alteration of the texts of official bulletins or information provided by the Government for dissemination, and the broadcasting, publication or showing of prejudicial, defamatory or false news. Section 37 made provisions for three types of administrative penalty: (i) clarification or replication and rectification; (ii) admonition; and (iii) temporary suspension.
227. The Committee noted with regret that the Minister of the Interior retained his power to impose temporary suspensions on the press and requested the Government to indicate whether previous Decrees, such as Decree Nos. 512 and 888, which violated freedom in respect of economic information, remained in force. (Endnote 28)
228. In a letter of 20 October 1989, the Government informed the Committee that the Act in question had been amended, and that the Supreme Electoral Council had been entrusted with the enforcement of this legislation and of the regulations issued thereunder in respect of matters connected with electoral law. (Endnote 29) According to the IOE, in a letter dated 3 November 1989, the amendments covered only the period of the electoral campaign.
229. A letter from the Permanent Mission of Nicaragua, dated 20 April 1990, states that the 1979 General Act on the Media was recently repealed in its entirety by the National Assembly together with its 1989 amendments. Likewise, Decree No. 511 of 10 September 1980 had been repealed.
230. The Minister of Labour, when in Geneva, confirmed that the Media Act had been repealed and that the view of the President of the Republic was that the best law on the regulation of media was no law at all. Consequently, the repealed Act had not been replaced by any other legal text.
231. When the Commission met COSEP leaders in Nicaragua, they were informed that the Act in question had not been applied in 1989.
232. The Director of the Standing Commission on Human Rights stated that there was now no law on the media. Under the Sandinista Government the Provisional General Act on the Media had been in force, breaches of which were punishable even by imprisonment. He explained that the Sandinista Government had reformed this system in April 1989, eliminating provisions whereby a means of communication could be suppressed without prior legal proceedings. Following the reform, a penalty of four days closure could be imposed. Furthermore, the Act banned private television channels.
233. Nevertheless, he stated, there was increasing freedom of expression. Following the electoral defeat of the Sandinistas, an Act was promulgated during the transition period which repealed the Act on the Media and Social Communication, and since then there had been no legislation on the subject. In fact, things had sometimes gone to the other extreme as regards freedom in this respect. He explained that in July 1990 there had been a case in which the Government closed down a pro-Sandinista programme for four days although it had no authority to do so since there was no law giving it the requisite power.
234. The Supreme Court Judges informed the Commission that following the peace negotiations under the previous Government freedom of expression was once again respected in Nicaragua; nevertheless as long as the Act on the Media and Social Communication remained in force, it had had the effect of a sword of Damocles.
235. They stated that there was now full freedom of expression, to the extent that magazines were published which incited to rebellion, without any measures being taken against them. No draft legislation had as yet been submitted to the Assembly to regulate the media.
The right to demonstrate and the right of assembly
236. The study mission stated in its report that with the lifting of the state of emergency, the right to demonstrate and the right of assembly were once again recognised. Nevertheless, a number of trade union organisations reported that there were still practical difficulties since the Ministry of the Interior delayed considerably in replying to applications for authorisation to hold public demonstrations. This placed the organisations in a difficult situation since, if they waited for permission they would not have sufficient time to organise the demonstrations, but if they organised a demonstration before obtaining permission, they were liable to incur penalties. Furthermore, once demonstrations had been authorised, there were likely to be provocation tactics resulting in police intervention, arrests and subsequent convictions.
237. The Deputy Minister of the Interior informed the mission that the regulations applicable in this respect were out of date since they had been adopted in 1924. Unlike the political parties, the trade unions did not submit many applications to hold demonstrations. According to the government authorities, it was the political demonstrations that gave rise to violence, not the trade union ones commemorating the first of May.
238. Meetings on trade union premises were not subject to prior authorisation but the study mission was informed that they were liable to be disturbed by the constant police surveillance to which union premises were subject, or by violence on the part of para-governmental groups. Furthermore, both meetings and demonstrations came under the Act on the Maintenance of Order and Public Security (Decree No. 1074 of 1982) which was considered unduly severe in opposition circles.
239. In its communication of 20 October 1989, the Government informed the Committee on Freedom of Association that it had approved an Act repealing Decree No. 1074 and all the matters dealt with therein, such as rebellion, sedition and treason, which would henceforth come under the Penal Code. (Endnote 30)
240. The Minister of Labour, when in Geneva, confirmed to the Commission that the Act on the Maintenance of Order and Public Security had been repealed and had not been replaced by any other.
241. During the meeting with the leaders of COSEP in Nicaragua, the latter informed the Commission that the Act on the Maintenance of Order and Public Security had not been applied in 1989, which had been a peaceful year. This situation was due to the accords reached with the Presidents of the Central American countries on the basis of the 1987 Agreement of Esquipulas.
242. As regards the application of the above-mentioned Act, the Commission noted during its visit that the fact that it had been repealed was not widely known. For example, the CST leaders stated that it was still in force.
243. As already mentioned, the Act on the Maintenance of Order and Public Security was repealed on 30 October 1989 by Act No. 66 (published in the Official Gazette, La Gaceta, of 26 December 1989). Section 2 of Act No. 66 provides that all provisions in the Penal Code dealing with offences for which the repealed Act provided penalties remain fully in force.
244. The Supreme Court judges stated that in the last days of the Sandinista Government, in 1989, the repealed Act was rarely applied.
245. Referring specifically to the right of assembly and the right to demonstrate, the Chief of Police informed the Commission that police authorisation was required for the holding of public meetings, except those of a religious nature, both under the Sandinista Government and under the present one; the authorisation had to be applied for 72 hours in advance. This requirement did not concern meetings on private premises. Authorisation was generally refused during the state of emergency but not after it had been lifted. At the moment authorisation is granted without any difficulty.
CHAPTER 9
EXPROPRIATION OF LAND BELONGING TO EMPLOYERS' LEADERS
Background to the events
246. The complainants, in allegations to the Committee on Freedom of Association and in the complaint made under article 26 of the Constitution have denounced the confiscation of property, land and enterprises belonging to several leaders of the Nicaraguan Council of Private Enterprise (COSEP) as a form of harassment. These leaders included Messrs. Enrique Bolaños, President of COSEP, Ramiro Gurdián, Vice-President of COSEP, Benjamín Lanzas, Vice-President of COSEP, Arnoldo Alemán Lacayo, President of the Association of Coffee Producers of Nicaragua and Vice-President of the Union of Nicaraguan Agricultural Producers.
247. In the conclusions presented by the Committee on Freedom of Association in Case No. 1344 (Endnote 31) note was taken of the statements by the Government that the confiscation of land was due to agrarian reform requirements.
248. The study mission which visited Nicaragua had the opportunity to examine this question and to hear the views of several of the trade union leaders concerned, who stated that the confiscation of land was part of a systematic harassment since it was applied on a discriminatory and unjust basis against COSEP leaders. The percentage of COSEP members affected by these measures was very high. Furthermore, no provision was made in practice for the right to appeal such decisions before the Agrarian Court. The study mission also established contacts with the leaders of the National Union of Farmers and Cattle-breeders (UNAG), an organisation which represents small and medium rural landowners, who said that the confiscation measures had affected not only COSEP members but also many members of UNAG. At the time of the study mission, the legal department of UNAG was taking to court 13 cases of what it considered unjust confiscation, eight of which affected members of its organisation and five members of COSEP. The organisation pointed that compensation had been granted, as in the VIth region where more than ten cases had been resolved satisfactorily, but that this was not true of all cases, for different reasons.
249. The competent government authorities informed the study mission that the Agrarian Reform Act was not applied on the basis of surface area but on that of inefficient social and economic exploitation. Rather than aiming at egalitarianism in landownership, the purpose of the agrarian reform was to ensure that land played a social function and to obtain a more efficient exploitation.
250. During the course of a second meeting with COSEP leaders the mission was informed that negotiations in the event of expropriation for reasons of public utility and social interest were carried out under terms imposed by the Government. It was very difficult to run a farm efficiently in the current situation since the Government controlled the necessary inputs for efficient production and used the ensuing inefficient production to justify the expropriation.
251. As regards compensation paid to landowners for the expropriation of their land, the government authorities interviewed by the mission explained that in the cases of expropriation for inefficient production or non-utilisation compensation was paid by means of state bonds which accrue interest at a rate tied to that of inflation and which may be used to repay bank loans. On the other hand, in the case of abandoned or idle property no provision was made for compensation. When the expropriation is based on public utility or social interest, compensation is direct or made by means of land swaps, and is paid regardless of the efficiency or productivity of the land. In the same way the Ministry of Agricultural Development and Agrarian Reform may approve other methods of compensation.
252. As regards compensation for the confiscation of land belonging to Mr. Enrique Bolaños the study mission was informed that the Government had made different proposals for settlement through both public and private channels, which Mr. Bolaños had not accepted. According to the Vice-Minister of Agricultural Development and Agrarian Reform it was necessary to expropriate Mr. Bolaños' farm for social reasons, inasmuch as it was situated in an area consisting of small farms. The Vice-Minister also stated that the options for negotiation with Mr. Bolaños remained open as far as the Government was concerned but that Mr. Bolaños had chosen to politicise the case.
253. As regards the expropriation of land belonging to Mr. Ramiro Gurdián, the latter told the study mission that the expropriation had been made under Legislative Decree No. 1265 and not as the Government had stated because it had been taken over by peasants in the region. He said that it was not true that he had been offered the possibility of compensation. He had taken his case to the Supreme Court of Justice which had ruled that the Government was empowered to declare his land of public utility.
254. The Vice-Minister of Agricultural Development and Agrarian Reform told the study mission that the expropriation of land had not affected one producing sector or political group more than another, since it has been applied equally to everyone and that the Government has always sought to carry out its agrarian reform policy within a legal framework. He admitted, however, that certain injustices may have been committed owing to the profound social changes taking place in Nicaragua but that abuses, if any, could be appealed before the Agrarian Court, an administrative jurisdictional tribunal; moreover, following the promulgation of the new Constitution (1987) recourse could also be made to the ordinary courts, up to the Supreme Court of Justice, through administrative relief proceedings (amparo). In the same way he said that it was the Ministry's policy to review its own decisions concerning expropriations and that in various cases where the review had identified mistakes, the expropriations had been revoked before the cases reached the Agrarian Court. It should be noted here that according to the President of the Supreme Court between 1979 and 1983 12 applications had been made for administrative relief proceedings before the Supreme Court appealing decisions of the Agrarian Court.
255. As regards the expropriation of land belonging to Mr. Gurdián, the Vice-Minister said that the land had been taken over by peasants and that subsequent procedures had legalised the situation and expropriated the land for the purposes of agrarian reform. Compensation in this case should be through the issue of bonds but Mr. Gurdián had not accepted the offer. The Government more than any other party wished to settle these cases, since others sought to draw political advantage from them.
256. Lastly, the Vice-Minister stated that this fundamental transformation in landownership is virtually complete and that the Government is now focusing its efforts on stimulating production on expropriated lands by means of peasant co-operatives, investments and technical assistance. He provided a series of statistical tables which indicated that the expropriation measures during the period from October 1981 to December 1982 affected 200 landowners who owned 279 farms with a total surface of 264,448 blocks, while in the period from January to May 1988 only 14 farms belonging to 17 landowners, with a surface area of 9,000 blocks had been expropriated.
257. In a study carried out by the legal department of the Union of Nicaraguan Agricultural Producers (UPANIC), entitled "Legal brief describing the countless expropriations of property from the Nicaraguan private sector by the Sandinista Government (1979-88), by means of decrees and legislation which violate the most basic universal legal principles", it was pointed out that "recourse is not made to the agrarian courts and authorities because the person concerned has no guarantee of a fair trial and a final review by the competent judicial authority, whether by appeal or relief proceedings". The brief also points out that the compensation for the confiscation of land is based on tax criteria and is generally paid by means of long-term bonds (from 15-25 years), which means that owing to galloping inflation, the landowner will eventually receive a sum with vastly reduced purchasing power. Therefore it would be more appropriate to speak of confiscation than expropriation, or at least of unfair compensation.
258. Furthermore, the above-mentioned brief states that "since 1983, Nicaragua has adopted a proceeding for relief (amparo), which has a long tradition in the judicial branch. This proceeding for relief has been used against legislation and other government actions, orders, provisions and instructions; however, it is not currently granted in connection with agrarian legislation or the resolutions of the agrarian authorities; it is almost invariably suppressed as regards the special laws which are currently being promulgated (tenants, etc.), and this renders illusory any compliance with the guarantees defined in the Fundamental Statutes of Nicaragua". The Courts of Appeal (where proceedings for relief are filed) and the Supreme Court of Justice (where the case is decided) have refused to admit such proceedings in agrarian matters. Thus it is impossible to appeal against the Agrarian Reform Act and its many violations of Fundamental Statutes (including international treaties and commitments), or against agrarian resolutions. The brief points out that the promulgation of the Constitution of January 1987 guarantees the inalienable right of the citizen to proceedings for relief; therefore the provisions of the Agrarian Reform Act which do not permit appeals to the Supreme Court are currently illegal.
259. The Committee of Freedom of Association, at its meeting in November 1989 (Endnote 32) examined, within the framework of Cases Nos. 1442 and 1454, new allegations made by the IOE concerning the expropriation of land (June 1989) belonging to Mr. A. Alemán Lacayo, President of the Association of Coffee Producers of Nicaragua (UNCAFENIC), affiliated to COSEP; and to Messrs. Nicolas Bolaños and G. Cuadra Somarriba, leaders of UNCAFENIC and the Association of Coffee Producers of Matagalpa. According to the IOE, following a meeting held two days earlier by the Association of Coffee Producers of Nicaragua (UNCAFENIC), affliated to COSEP, at which the policy of the Coffee Committee, an official body, was seriously challenged, the Government decided on the expropriation of the said land. The IOE alleged that the Government accused the officials of refusing to negotiate and of encouraging anarchy, confrontation and a breakdown of negotiations. According to the complainant, the expropriation was very much in the spirit of similar measures designed to intimidate and muzzle the leaders of COSEP and of one of its principal members, the Union of Nicaraguan Agricultural Producers (UPANIC).
260. The IOE pointed out that another instance of arbitrary confiscation of land belonging to a COSEP leader was ordered as a reprisal after COSEP criticised the Government's economic policy; it concerned Mr. José Maria Briones. This occurred on 3 July 1988 in Estelí, the day after the holding of the meeting to prepare COSEP's General Assembly and the host of which was Mr. Briones.
261. Furthermore, the complainants added that both the Ministry of Agrarian Reform and the President of the Republic had threatened to expropriate the land of those officials who had indicated their intention to withdraw from consultations in which disagreement with government policy was considered an act of sabotage.
262. The IOE recalled in its communication the announcement by the then President of the Republic on 30 January 1989 that no more land would be confiscated. It also pointed out that the Government had not responded to the hope expressed by the Committee on Freedom of Association that it would compensate the persons who had been dispossessed of their land. The IOE cited an instance of pure and simple refusal to compensate one COSEP official who was recently dispossessed as well as of the Government's refusal to hand over several farms whose confiscation was annulled by the Supreme Court. The IOE pointed out that other applications for compensation for the confiscation of land from Messrs. Aleman, Bolaños and Cuadra were still pending.
263. In a subsequent communication dated 3 November 1989, which was received too late to be examined by the Committee, (Endnote 33) the IOE pointed out that the confiscation of land belonging to UPANIC and COSEP officials was confirmed by the competent court examining the cases and that no compensation for either the recent or previous expropriations was granted.
Legislation on agrarian reform
264. The Agrarian Reform Act was promulgated in 1981 (Decree No. 782). Section 2 of the Act establishes four classes of land subject to expropriation: (a) land which has been abandoned; (b) land which is idle or insufficiently exploited and whose owners hold land beyond a certain size; (c) land which is rented or transferred to a third party in any other way; and (d) land which is not worked directly by its owners, but by peasants working under a sharecropping, precarious or other form of peasant exploitation. Exceptions are made only for those cases in which the owner of the land holds less than a specific number of blocks. (Endnote 34) Furthermore, the respective Minister may declare areas of agricultural development and agrarian reform for the implementation of plans and production projects, territorial reorganisation, irrigation and/or population settlements.
265. Section 9 of the 1986 reform to Decree No. 782 established the concept of "public utility or social interest". Section 10 stipulates that the procedures concerning expropriation in areas of agricultural development or agrarian reform on the grounds of public utility or social interest for the purposes of agrarian reform, shall be established in the Regulation under the Agrarian Reform Act (Agreement No. 22) which was published on 4 February 1986. Under section 12 of this Regulation, expropriation on the grounds of "public utility or social interest" is authorised in the event of:
(a) situations of social emergency which require attention to be provided to peasant families by means of special programmes in agriculture;
(b) the existence of rustic landholdings in regions with a high concentration of small farms and which are slowing down progress towards a just and fair distribution of land; and
(c) the need to incorporate rural property in the plans for agricultural development and agrarian reform to meet the objectives set by the State.
266. Sections 11 and 16 of the Act establish the procedure for expropriation, which is initiated by a declaration made by the Ministry of Agricultural Development and Agrarian Reform on the basis of a technical opinion by this Ministry. Once the expropriation has been declared, the owner is notified in writing. The notification sets forth the reasons for the expropriation and the date on which possession will be taken of the property concerned.
267. In the cases of expropriation of insufficiently exploited land, land rented out or transferred in any other way and land which is not directly worked by its owners but by peasants working under a sharecropping, precarious or other form of peasant exploitation (section 2(b), (c) and (d) of the Act), the owner is granted a period of 30 days from the time of the notification of expropriation to appear before the respective regional delegation of the Ministry of Agricultural Development and Agrarian Reform to make a sworn statement concerning the surface area of the property and its related assets. If the owner makes a false declaration or does not appear within the stipulated time period, he loses the right to any compensation due. Following notification to the owner, the regional delegation of the Ministry of Agricultural Development and Agrarian Reform establishes an inventory of the assets concerned which is signed by the owner or administrator of the farm and by the Regional Director of the Ministry. When the resolution is confirmed, the Minister of Agricultural Development and Agrarian Reform issues an agreement, the certification of which is inscribed in the corresponding public register.
268. Section 17 of the Act establishes the Agrarian Court as the administrative jurisdictional body responsible for examining and resolving, as the supreme body, appeals lodged by the persons concerned against the resolutions issued by the Ministry of Agricultural Development and Agrarian Reform. Under section 19, such persons may personally lodge within three days an appeal against the decision before the Agrarian Court which will issue a ruling. These rulings may not be appealed and no appeal for relief may be made. In the same way, section 42 of the Act stipulates that no application for constitutional relief may be made against resolutions issued on agrarian matters.
269. Sections 20 to 24 of the Act concern compensation and the forms of payment. Section 20 stipulates that land and other property expropriated shall be compensated by means of agrarian reform bonds the amount, form, interest and conditions of which are fixed in the Regulation of the Agrarian Reform Act (Agreement No. 22). Compensation is dealt with in sections 15-17 of Chapter III of the Regulation. No compensation is provided in the event of abandoned or idle property.
270. Section 21 stipulates that without prejudice to the provisions of section 20, the Ministry of Agricultural Development and Agrarian Reform may agree upon other methods of compensation with the persons concerned by the expropriation. Section 22 provides that the amount of compensation is determined by experts from the Ministry, based upon the average amount of the value declared for tax purposes over the last three years.
271. The Regulation under the Agrarian Reform Act stipulates in section 15 that once the property has been adjudicated to the State, and in accordance with Chapter IV of the Act, the Ministry of Agricultural Development and Agrarian Reform shall immediately process the compensation granted to the persons concerned by means of state bonds issued by the Republic of Nicaragua, which for these purposes are called agrarian reform bonds. Section 16 of the Regulation establishes the different classes of bonds and the categories of compensation for the landowners concerned: (a) class A bonds, used to compensate owners whose land is located in an area declared as being one of agricultural development and agrarian reform and in cases of public utility or social interest; (b) class B bonds, used to compensate landowners in cases of inefficient exploitation or as regards land worked on a sharecropping, precarious or other form of peasant exploitation as stipulated in section 2(e) of the Act; (c) class C bonds used to compensate persons whose land has been rented out or transferred in a similar way.
Information received during the meeting in Geneva
272. The Minister of Labour pointed out as regards agrarian reform legislation that two Legislative Decrees had been promulated, Nos. 10-90 and 11-90, which provide for a review of all cases of illegitimate expropriation and confiscation. These decrees have been appealed on the grounds that they are unconstitutional before the Supreme Court, which is studying them at the moment. In Nicaragua, as in the majority of countries, confiscation is a sanction and in some cases has been carried out with obvious strictly political intentions. Thus the legislation which has just been promulgated makes provision for the review of all measures taken in this respect, with the exception of property expropriated under Decrees Nos. 3 and 38 of the Sandinista regime which referred to the assets of the Somoza family and its associates.
Information received during the visit
273. The Commission was able to examine the text of Legislative Decrees Nos. 10-90 and 11-90 promulgated by the new Government. Under Legislative Decree 10-90 respecting the provisional renting of lands, land suitable for agriculture or cattle-breeding which is owned by or in the possession of the State and assigned to it under a decree respecting confiscation or expropriation or a declaration of public utility or any other arbitrary form and confiscated by the previous Government or in the possession of third parties who are not its legitimate owners may be rented. The Legislative Decree provides natural or legal persons possessing a deed of ownership of land, the renting of which is requested, a real right over the property or a cadastral certificate of property; in the absence of such documents a declaration may be made provided it is signed by five witnesses who attest to the right of possession prior to the expropriation or confiscation. The Ministry of Agriculture and Cattle-breeding examines the documents presented and within a period of seven days issues a resolution ordering the renting. In the event that the land is in the hands of third parties the Ministry must order the renting and the immediate handing over of possession. When required, the police authorities must co-operate in ensuring that the rent order is respected. The tenants, as a result of receiving a contract of rent, do not lose the rights which they may enjoy as landowners.
274. The Agreement dated 11 July 1990, which put an end to the general strike of July, established that as regards Legislative Decree 10-90 the Ministry of Agriculture has reviewed all the applications for rent, thus putting an end to the application of this decree.
275. For its part, Legislative Decree No. 11-90 respecting the review of confiscations which, according to the preamble, applies to all those measures which "arbitrarily dispossessed natural and legal persons" establishes the National Review Committee with powers to review all confiscations made by the previous Government under legislation and decrees respecting confiscations, expropriations or agrarian reform and which in one way or another dispossessed natural or legal persons of their property, rights and actions, without prejudice to the rights of peasants, of co-operatives which have a social and economic function and of less privileged persons. This Committee is made up of the Attorney-General and four persons appointed by the President of the Republic. The resolutions of the National Review Committee ordering the devolution of property or recognising a given right must be carried out immediately with the support of the police force, if necessary, and may be used for the purposes of continuing legal action by appeal in the event that the application for review is rejected. In the event that a favourable resolution is issued and the property cannot be returned for reasons of agrarian reform, or because it is occupied by small landholders or co-operatives which have a social and economic function, or has been divided up by the State, or because its devolution is materially impossible, the Act establishes compensation which must be recognised by the State. This compensation must be paid in gold córdobas. The right to request a review is granted up to 180 days following the date of publication of the Decree.
276. In its meeting with COSEP officials, the Committee was informed that the confiscation of land was due to political reasons and discriminated against their organisation. In particular they pointed out that the confiscation of the farm of Mr. Ramiro Gurdián was the result of a speech in which he criticised the Sandinista Government; that of the land of Mr. Benjamin Lanzas, because he was the President of the Chamber of Building; that of Mr. Arnoldo Alemán, because of his remarks against the Government and that of Mr. Enrique Bolaños because of his critical attitude to the Government.
277. As regards the confiscations in June 1989 concerning Messrs. Bolaños, Alemán and Cuadra Somarriba, the Commission was informed that these measures were related directly to a meeting of coffee growers in which criticisms were made of the economic policies of the Sandinista Government.
278. According to COSEP officials the discriminatory character of the confiscations affecting them was the result of the manner in which they were ordered since they were not included in a collective provision within the agrarian reform policy but were individual measures directed specifically against the parties concerned. They gave as examples the case of Mr. Gurdián, whom the Vice-President of Nicaragua had allegedly accused of being anti-patriotic in his speech and whose farm (La Candelaria) was shortly afterwards confiscated and the case of Mr. Bolaños, whose farm was in a holding of more than 22,000 hectares, which was declared subject to expropriation even though of all the holdings only his and that of another person were confiscated.
279. A file provided by COSEP officials includes a full set of documentation on these cases. With regard to Mr. Bolaños, extracts are cited from the speech given by the Minister of Agricultural Development and Agrarian Reform on 14 June 1985 in which the Minister announced the declaration of "an agricultural development and agrarian reform zone" in specific municipalities and mentioning the lands located in this zone and which include those of the Bolaños-Saimsa undertaking (whose partners are the Bolaños brothers: Enrique, President of COSEP; Alejandro who, through the Centre of Nicaragua Information, was a critic of the Sandinista regime; Nicolás, President of UNCAFENIC and Director of UPANIC). As regards Mr Gurdián, the then President of UPANIC, it was pointed out that Dr. Sergio Ramírez Mercado, Vice-President of Nicaragua, announced in a speech on 26 May 1983 the expropriation of the farm called La Candelaria, and declaring the owner anti-patriotic. On 14 June 1983, a Decree No. 126 was issued which declared the above-mentioned property of public utility for the purposes of agrarian reform (text published in La Gaceta dated 24 June 1983).
280. The COSEP leaders referred to the Agrarian Court and stated that it was not part of the judicial system since its rulings could not be appealed before the Supreme Court of Justice. They pointed out that the Agrarian Court continued to operate even after the anti-Somoza Courts had been abolished, that very little land had been returned by it to its owners, and that compensation had been paid in only few cases. In one case in which the Supreme Court ordered the return of a farm (La Verona), the decision was not respected by the Ministry of Agricultural Development and Agrarian Reform.
281. In referring to Legislative Decree No. 10-90 respecting the provisional renting of lands, they pointed out that at the moment of the signing the contract of rent provided by the Decree, the Sandinistas would occupy the property and use arms to prevent the owner from taking possession of it. As regards Legislative Decree No. 11-90 respecting the review of confiscations, they expressed fear that even if their farms were returned, they would be prevented from occupying them by Sandinista mobs or trade unions.
282. In its meeting with UNAG officials, the Commission was informed that several UNAG members had been the victims of confiscations under the Agrarian Reform Act and that on various occasions they criticised the Government for the unjust expropriation of property belonging to efficient producers. UNAG was seeking justice for the confiscations which affected its members. There were some cases of expropriations for political reasons but these were rather exceptional. They pointed out that the case of Mr. Bolaños was an instance of abusive expropriation.
283. Similar remarks were made by the Director of the Standing Committee on Human Rights, who described the expropriation of Mr. Bolaños' property as clearly political.
284. In a second meeting with the Executive Secretary of COSEP, the latter stated that there had been many instances of land and property expropriation for political reasons. Such measures affected particularly COSEP officials, since in the early years of the Sandinista movement this was the only organisation which adopted a firm stance of opposition to the Government which, amongst other things, was destroying the economy of the country. Some UNAG members were the victims of expropriations which were considered unjust, but not discriminatory because of their membership in this organisation. He added that as regards the expropriation of land belonging to UNCAFENIC officials in June 1989, some of these properties had been returned, as in the case of Mr. Nicolás Bolaños.
285. The Commission also examined the alleged arbitrary expropriations with the current Vice-Minister of the National Institute of Agrarian Reform (who was also an official of the Institute under the Sandinista Government) and his collaborators. They pointed that the expropriations affected many persons and that some of them were unjust and illegal; as regards COSEP, since this was an employers' association, the expropriations were widely publicised because the organisation had the opportunity of making denunciations at even the international level. But there had also been other cases. Since Nicaragua was a small country, expropriations occurred for vindictive reasons. For example, on some occasions middle-rank officials of the Ministry of Agricultural Development and Agrarian Reform in the previous Government acted arbitrarily and without the knowledge of the Directorate of this Ministry.
286. They added that in the specific case of the expropriation of Mr. E. Bolaños' land in 1985, the measure was taken when the property was declared of public utility since it was located in an area of small farms in one of the most fertile regions of Nicaragua. The case received considerable publicity because of the political importance of Mr. Bolaños, a political leader and unflinching enemy of the Sandinista Government. In public it was said that it was a political matter since Mr. Bolaños was a COSEP official. The previous Government offered compensation to Mr. Bolaños but he refused to accept it. As regards the expropriation of land belonging to UNCAFENIC officials in 1989, the properties belonging to Messrs. Cuadra Somarriba and N. Bolaños have been returned.
287. The former Minister of Agricultural Development and Agrarian Reform, Mr. Jaime Wheelock, pointed out to the Commission that the purpose of the Agrarian Reform Act was to expropriate land belonging to inefficient landowners, by means of a casuistical method so as not to affect efficient landowners. In 1986 the Act was amended with the introduction of expropriation on the grounds of public utility. The problem was that there was a lack of land for distribution and the peasants began to occupy farms. For this reason legislation was also adopted which permitted the confiscation of land belonging to absent owners as well as land belonging to persons who had taken up arms, i.e. who had joined the "Contra" movement.
288. According to the former Minister, the confiscation of the farm belonging to Mr. Enrique Bolaños in 1985 was carried out in the following circumstances. Strong pressure was being exercised in the department of Masaya by peasants who worked small landholdings, and whose capacity exceeded the lands which they possessed. This problem could be resolved in only two ways: by encouraging the migration of these peasants to other regions or by expropriating the existing land in the north of the department for the purposes of agrarian reform. It was decided to proceed by both methods. In the north there were large and some medium-sized properties. The Government discussed with the owners the possibility of buying these properties and they agreed, with the exception of Mr. Bolaños. He was offered other land because he was a good producer but he did not accept the offer. The expropriation was carried out on the basis of a provision of the Act which allows the adoption of this measure in special cases (for example, an intolerable agrarian situation) even though the property was not idle or worked inefficiently. It must be recognised that there was also a political element in the case of Mr. Bolaños and other COSEP officials. Furthermore, he added that it was easier to move one landowner than many peasants. He pointed out that at that time no other land belonging to Mr. Bolaños was expropriated, although he owned many properties.
289. The former Minister confirmed that in the case of the expropriation of land belonging to Mr. Gurdián, a speech had in fact been made by the Vice-President, Mr. Sergio Ramírez, ordering the measure. This was carried out by means of a special decree and was not the result of an occupation of the farm by peasants.
290. He pointed out that the expropriation of land belonging to Mr. Nicolás Bolaños, Alemán Lacayo and Cuadra Somarriba, in 1989 was indeed made following a speech by the President of the Republic in which the latter announced that there would be no further confiscations. But these confiscations concerned absent owners or those who had joined the "Contras", since in such cases it was a question of measures of this kind. Expropriations within the framework of the agrarian reform policy remained possible. However, the period of confiscation of properties had concluded in 1986-87.
291. With regard to the COSEP officials Messrs. E. Bolaños, Alemán Lacayo and Gurdián, whose lands had been expropriated at an early date, the former Minister pointed out that the Government had returned the properties to the latter two persons. In the case of Mr. Bolaños this would have been impossible because his farm had been handed over to peasants in a densely populated zone. The former Minister said that he did not know if Mr. Lanzas' property had been returned to him. With regard to the expropriation of land belonging to Messrs. Alemán Lacayo, N. Bolaños, Cuadra Somarriba and Briones in 1989, and 1988 as regards the last mentioned person, the land belonging to the first three had been returned. He did not know the situation as regards Mr. Briones.
292. The ex-Minister concluded by saying that without doubt mistakes had been made in the expropriation policy. In the case of Mr. E. Bolaños there was no predominantly political motive although in other cases it was possible that this was the case if the matter were examined from an objective point of view.
293. The officials of the Association of Rural Workers (ATC) pointed out to the Commission the importance of maintaining agrarian reform and the revoking of Legislative Decrees Nos. 10-90 and 11-90, under which 53,000 blocks of land will be returned to their former owners, who are both judge and jury since they are currently members of the Government and the former holders of the land. The measures respecting the renting of land to the former landowners under Legislative Decree 11-90 was a form of returning to the past.
294. In a meeting with members of the Supreme Court, the Commission inquired about the legal possibilities of appealing to the Court in cases of expropriation for agrarian reform reasons. It was explained that the decisions respecting expropriation were issued by the Ministry of Agricultural Development and Agrarian Reform and that they could be appealed before the Agrarian Court, which had been set up by the Executive. An application for relief could also be lodged with the Supreme Court against rulings by this Court.
295. The office of the Attorney-General pointed out to the Commission that the Agrarian Court had been dissolved following the adoption of Legislative Decree 11-90 respecting the review of confiscations. As regards the National Review Committee for which provision was made by the Legislative Decree, it had now been set up and was operating. Approximately 2,000 applications for review had been received and approximately 40 cases had been resolved.
CHAPTER 10
TRADE UNION LEGISLATION AND PRACTICE
296. The Commission has examined the situation of trade union rights and collective bargaining in respect of 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). It based its examination on both legislation and national practice.
Amendment of legislation
297. As pointed out in Chapter 7, Act No. 97 respecting reforms and additions to the Labour Code, adopted on 20 April 1990 during the final days of the Sandinista Government, introduced a series of important amendments in legislation.
298. During the hearings in Geneva the Minister of Labour stated that this Act came into force only on 1 May under the new Government when it was published by a newspaper. This gave effect to the customary legal provision that its publication "by any means" would give it effect. According to the Minister, the adoption of the Act was an infringement of a standard of the Civil Code, whereby a reform of the Code requires consultation of the Supreme Court of Justice. This consultation did not take place, so that the Act should be declared null and void. However, in the interests of national reconciliation this option was not exercised and instead it was decided to amend the Act which contained a series of defects.
299. The Minister concluded that one of his first tasks would be to reform the Labour Code and he had already requested technical co-operation from the ILO in this connection.
Recognition of employers' right of association
300. The complaint states that the new Constitution of 1987 implicitly denied employers the right to association which they previously enjoyed, whereas this right was recognised to many other categories of persons.
301. As the previous Government had stated in its reply of 5 January 1988, the fact that the right to organise by employers was not included in the Constitution should not be understood as a prohibition, since article 49 of the Political Constitution establishes as a general principle the right of association of all persons for the purposes of defending their interests. Therefore, the Government adds, the right of employers to association is provided by the Labour Code and the Regulation respecting Trade Union Associations.
302. As in fact can be seen from the provisions of the Labour Code and the Regulation respecting Trade Union Associations (see Chapter 3) some sections of these texts refer specifically to employers' associations.
303. The current Minister of Labour explained during the meeting in Geneva that COSEP was not considered to be a trade union; it represents employers and employers are not represented by trade unions in Nicaragua but by chambers or associations. They are regulated by standards which differ from those of trade unions. As regards the most representative status of organisations within these employers' chambers the Minister said that if the criterion was one of belligerence, obviously COSEP would be the most representative since it fought against Somoza and the previous regime. It is also the most representative as regards its presence in the national private sector since the number of employers affiliated to it is higher than that of any other organisation. COSEP is indeed the representative body of the private sector. There is at present no contradiction between UNAG and COSEP, and UNAG does not claim to be the most representative in law or in fact. The problem with UNAG arose in so far as the Sandinista State nationalised the country, with the state sector being extended by means of interventions, expropriations and confiscations. UNAG began with several enterprises and subsequently moved into agriculture; it groups together small- and medium-sized co-operatives, particularly in the cattle raising and coffee sectors. From the point of view of its membership, UNAG does not group together employers but co-operators; there are no workers and no employers as such. This does not mean that within a co-operative there may not also be employees.
304. In its meeting with COSEP officials in Nicaragua, the Commission was informed that the organisation does not have legal personality and neither do certain employers' chambers. It had been decided not to request legal personality so as to avoid running the risk that the authorities could annul the organisation, as had been done in the case of the cattle-breeders organisation. Even though the employers' right of association is not enshrined in the 1987 Constitution, in practice there have not been any legal problems as regards organisation.
305. According to these officials COSEP has 114 affiliated organisations and a study carried out in 1986 shows that it groups together undertakings with a total of 194,000 wage earners.
306. As regards UNAG, its officials informed the Commission that the organisation has legal personality and that its members are employers. It has 125,000 affiliates and 3,200 co-operatives. First and foremost it defends the interests of small- and medium-sized producers, most of whom work in agriculture. UNAG is a member of the Confederation of the Co-operatives of the Caribbean and Central America (CCC-CA). For the ATC, UNAG is an employer's organisation comprising producers, co-operators and enterprises.
Recognition of the right of association of public servants and certain other categories of workers
307. The Committee of Experts has on numerous occasions urged the Government to guarantee, by a specific provision, the right of association of public servants, independent workers in the urban and rural sectors and persons working in family workshops.
308. As regards public servants, the study mission noted that approximately 40 per cent were affiliated to the National Union of Employers (UNE) whose membership is made up of manual and professional workers employed by state institutions. This organisation regroups 45 local trade unions with 27,000 affiliated workers and was registered by the Ministry of Labour and therefore has legal personality. It operates like any other trade union, especially as regards collective bargaining. Furthermore, there was a health workers' organisation (FETSALUD) and an association of teachers (ANDEN) which regroup approximately three-quarters of staff in their respective sectors. The Sandinista Confederation of Workers (SCT) includes public employees, especially municipal workers and state enterprises, among its members.
309. In some trade union circles the study mission was informed that in practice it was impossible to establish independent trade unions of public servants who opposed the Government and that pressure was brought to bear on such employees to join the UNE. This was denied by officials of ANDEN and FETSALUD who stressed that no requests had been made for the registration of a trade union which did not belong to the existing organisations.
310. As regards independent workers and workers employed in family workshops the study mission was informed that a large number of them were grouped together in the National Small-Industry Confederation (CONAPI) which has 10,800 members employing some 40,000 workers.
311. As was pointed out in Chapter 7, shortly before the change of Government, Act No. 70 respecting the civil service and administrative careers was adopted, which recognised the right to association, collective bargaining and the right to strike by all workers in the public service.
312. During the meeting in Geneva the Minister of Labour pointed out that this Act was the result of the unexpected election defeat of the Sandinista Government which, after the elections, began to promulgate legislation with much haste so as to put the new Government in a strait-jacket and impede the development of democracy. Thus, for example, the Act set up a committee to examine disputes in the public sector, thus establishing an exceptional jurisdiction contrary to one of the constitutional principles, namely the single jurisdictional structure. Furthermore, in accordance with the Act, only the Vice-Minister and Ministerial Assistant could be dismissed so that it became impossible for the new Government to govern or restructure itself. The legal solution to this situation was to adopt regulations under the Act since, had the Act been challenged on grounds of unconstitutionality, such an argument would not be accepted given the composition of the Supreme Court. Thus the Government issued Legislative Decree No. 8-90, section 1 of which empowers the Ministry of Labour to regulate Act No. 70, and stipulates that it may not be implemented until such regulations have been established. This led to criticisms and disputes but the Government could not be tied to restrictions which had been deliberately devised to thwart it. It is the intention of the present Government to introduce a new act respecting the civil service. Meanwhile, it has recognised the de facto right of association of public servants following the negotiation of the national agreement on 16 May 1990 which put an end to the strike in the public administration resulting from the suspension of Act No. 70.
313. During their meetings with the Commission in Nicaragua, the officials of the Sandinista Confederation of Workers, the National Union of Employees and the Federation of Health Workers, as well as the former Minister of Labour and the former Secretary-General of the Ministry, referred to the Act respecting the civil service and administrative careers. They pointed out that the origin of this Act was to be found in pre-electoral discussions held in 1989 when the political parties agreed that a stable system should be established for workers in the public service. In December 1989 the National Assembly had already approved a first draft of the Act and all the parties were agreed on its basic aspects. Earlier, the Government committed itself at the International Labour Conference in June 1989 to resolve the question of the right of association of civil servants. Act No. 90 had guaranteed this right as well as that of stability of employment in the public service. However, the new Government suspended its application by means of Legislative Decree No. 8-90 and began to dismiss workers from the public sector.
314. According to the above-mentioned trade union officials these measures resulted in the strike of May 1990 which ended with the agreement reached on 16 May. As the Committee was able to note, the agreement contains a commitment by the parties to regulate Act No. 70 within a commission presided over by the Ministry of Labour and made up of representatives of UNE, ANDEN, FETSALUD, organisations which have trade unions in the public administration and the Commission on the civil service and administrative careers. During the regulation process job stability is guaranteed and the Government undertakes to reinstate workers dismissed from the public sector.
315. It was pointed out to the Commission that, following the agreement, the Government issued Act No. 101 respecting reforms to the Act on civil service and administrative careers which amended the definition of officials and workers employed in positions of trust (the only persons who were not granted job stability by Act No. 70) extending it in such a manner that it allowed massive dismissals in the administration, which is what occurred.
316. These dismissals were allegedly one of the causes of the strike of July 1990. The officials mentioned pointed out that even though the Act respecting the civil service and administrative careers was suspended, the wide definition of officials and workers employed in positions of trust as contained in Act No. 101 was applied with a view to the massive dismissal of state workers. They pointed out that this was a contradiction which left these workers unprotected.
317. With regards to manual workers in the employment of the State and its institutions, who were not specifically mentioned in the Act respecting the civil service and administrative careers, the former Secretary-General of the Ministry of Labour and current legal adviser of organisations in the public sector explained that they should be considered as being included within the scope of the Act since this had been the original intention.
318. Finally, as regards the legal situation of the various organisations of the public sector (UNE, ANDEN, FETSALUD), the officials pointed out that they had been granted legal personality, that in the past they had concluded a number of collective agreements and that they had relatively frequently exercised the right to strike.
319. The strike in July 1990 ended with the agreement signed on the llth of that month. The provisions of the agreement include Article 3, which ratifies the agreement of May 1990, including the compromise concerning the regulations under the Act respecting the civil service. In this connection the Ministry of Labour explained to the Commission that Act No. 101 to reform the Act respecting the civil service and administrative careers explicitly establishes that the regulations under Act No. 70 are entrusted to the President of the Republic, who may delegate this power to the Ministry of Labour. At all events, according to the Minister, the National Workers' Front (FNT), to which the above-mentioned public sector organisations belong, had so far refused to participate in this regulation process and so an attempt would be made to regulate the Act with the organisations which do not belong to the FNT. But the Government also intended to introduce new legislation respecting the civil service.
320. The Commission was also able to clarify with the Minister the concept of "public official", a category which is excluded from the Labour Code. The Minister explained that this was a category of general directors and specific directors in the public sector, that is, a very small category of state officials. All the other employees and workers in the administration and state undertakings are included in the Labour Code and thus enjoy trade union rights like other workers (see in this connection paragraph 164).
321. As regards another category of workers, namely independent rural workers who are also excluded from the Labour Code, the officials of the Association of Rural Workers informed the Commission that most of these workers are temporary employees and are affiliated to it. Thus they are covered by the collective agreements concluded in each work centre. According to these officials, their exclusion from the Labour Code is due to the out of date nature of this legal text.
Establishment of trade union organisations
322. The complainants have alleged that independent organisations had not been recognised until they had made complaints to the ILO and that repression had been exercised against employers' and workers' organisations which refused to submit to the authority of the Sandinista National Liberation Front.
323. In their statements to the study mission several trade union officials referred to the existence of administrative red tape in the establishment of trade unions consisting of measures which exceeded the legal requirements. The mission was provided with a list of organisations which had received no reply to their application for registration. Some officials pointed out that in order to avoid administrative problems some organisations did not disclose the exact number of their members and simply reported the minimum fixed by the law. Others did not mention in their rules their affiliation to a given trade union central organisation. Allegations were also made concerning threats and pressure against trade union officials who wished to leave the Sandinista Confederation of Workers.
324. For their part, the authorities of the Ministry of Labour emphasised the need for trade unions to provide the information required by law. But the attitude of the Government in this respect had not been restrictive and a programme had been established in 1987 to decentralise the registration of trade unions so as to make the procedure easier for provincial organisations. The Ministry was faced with serious operational difficulties due to staff turnover. At all events, since the Sandinista Revolution in July 1979 up until December 1987, l,515 trade unions belonging to seven central trade union organisations of various ideological tendencies had been registered.
325. Another kind of problem pointed out to the study mission was that of the advantages allegedly granted to employers' and workers' organisations close to the Government, which could influence the establishment and running of organisations. According to the statements received, such advantages consisted of credit facilities granted to employers affiliated to UNAG and advantages as regards supplies for members of the Sandinista Confederation of Workers (CST). These allegations were denied by the authorities and the CST.
326. The authorities also emphasised that no obstacles had been placed in the way of the activities of the organisations except in cases where there was a violation of the provisions respecting public order.
327. Mention should be made here of the problem raised by the Committee of Experts concerning the establishment of works trade unions. The Labour Code in fact stipulated that the establishment of a trade union within an enterprise or work centre required the support of an absolute majority of its workers (section 189). This led to the creation, by legal provision, of a situation of trade union monopoly in the enterprise contrary to the provisions of Article 2 of Convention No. 87, which recognises the right of workers and employers to set up organisations "of their own choosing".
328. As pointed out above in Chapter 7, this provision was implicity derogated by Act No. 97 amending the Labour Code. In the meeting in Geneva the Minister of Labour stated that the new section 23 of Act No. 97 provides for the possible existence of several trade unions in the same enterprise, within the framework of democracy and trade union plurality. This section of the Act establishes that the most representative organisations in the sector may negotiate the collective agreement and the Ministry of Labour issued a resolution establishing that all organisations are representative, that is, the criterion of the number of members in each undertaking would not be given priority. For example, the rule of section 23 was applied in a recent case of workers who left the Sandinista Confederation of Workers to join another trade union organisation, thus giving recognition to the coexistence of as many trade unions as permitted by the enterprise. Since this could create a problem concerning the allocation of trade union dues, it was resolved that each organisation would collect its own contributions and that the employer would be required to provide the necessary facilities on pay day.
329. During its mission to Nicaragua the Commission received the text of a resolution of the Ministry of Labour dated 23 May 1990 which stated that in accordance with the Political Constitution and the Labour Code, trade union standards and international Conventions there should be an unrestricted degree of freedom of association and organisation, which it is in the interest of the Ministry to promote and defend. Workers are free to pay contributions to the trade union of their own choosing within the widest concept of trade union freedom. However, employers may not deduct contributions themselves, although an agreement has been concluded on this matter.
330. The CST officials for their part stated that the Ministry of Labour is in fact promoting the creation of new anti-Sandinista trade unions which lack the support of the workers and for this reason is convening meetings in work centres and even imposing their recognition by the respective employers and obliging them to refuse to recognise the trade union affiliated to the CST. UNE y FETSALUD officials shared the same opinion and referred specifically to the building, banking and transport sectors. The ATC pointed out that legal personality is granted to new trade unions of the Permanent Congress of Workers (CPT) without ascertaining whether workers wish to join them. According to the former officials of the Ministry of Labour the applications for legal personality by trade unions affiliated to the anti-Sandinista central organisations are being processed rapidly by the Ministry of Labour. This does not occur with the trade unions of a Sandinista tendency and approximately 90 per cent of the applications for registration pending in the Ministry have come from such trade unions. In the case of organisations in the public sector, the processing of applications for legal personality has been suspended.
331. The leaders of the General Confederation of Labour (independent) (CGT(i)) for their part told the Commission that at the moment there are no restrictions on trade union activities, which has led to an increase in membership of organisations belonging to the Permanent Congress of Workers, including the CGT(i) which has increased its membership from 3l,000 workers in 32 trade unions to 125,000 workers in 90 trade unions and 30 agricultrual co-operatives. On the other hand, the CST is losing members.
332. The Secretary-General of the Workers' Front pointed out that enterprises are currently encouraging the creation of new trade unions and the Ministry of Labour and other authorities are actively participating in this process.
333. The Minister of Labour stated said that it was incorrect to say that the Government was not registering Sandinista trade unions. The situation was different under the previous Government which registered only such trade unions and when there were more than 600 opposition trade unions which were not registered. At present the register is up to date and there is no preference as regards trade unions. The registration of a trade union is obtained within five days and at all events within a period less than that stipulated by law. The deduction of trade union contributions is allowed with the consent of the worker concerned.
334. The Director of Trade Union Associations of the Ministry of Labour also said that the register of trade unions was up to date and provided the Commission with a statistical report showing on a monthly basis the associations registered in 1989 and from January to August 1990. As regards workers' trades unions (employers' associations are seldom registered) the figures for the two periods are as follows:
1989
Trade unions Members Central Advisory
Association
26 6 786 U.N.E.
22 1 775 C.S.T.
21 3 340 A.T.C.
5 237 C.T.N.(a)
2 60 C.T.N.
1 39 C.U.S.
-- ------
77 12 237
1990
(Jan.-Aug.)
Trade unions Members Central Advisory Association
144 11 551 C.S.T.
55 6 006 U.N.E.
49 4 636 FETSALUD
36 1 335 C.U.S.
31 2 394 C.T.N.
26 1 775 C.A.U.S.
20 1 582 S/CENTRAL
18 770 C.T.N.(a)
11 749 C.G.T.(i)
8 902 A.T.C.
1 33 F.O.
--- ------
399 31 733
335. The percentage of Sandinista and non-Sandinista trade unions can be summarised from these figures as follows:
1989
Registered trade unions Sandinista Non-Sandinista
77 89.61% 10.39%
Members
12 237 97.25% 2.75%
1990
(Jan.-Aug.)
Registered trade unions Sandinista Non-Sandinista
399 64.16% 35.84%
Members
31 733 72.78% 27.22%
336. It should be noted furthermore that the corresponding figures for the month of August 1990 show a marked increase in the number of non-Sandinista trade unions:
Sandinista trade Members
unions
49 3 561
Non-Sandinista Members unions
123 6 679
337. This increase in the number of registered non-Sandinista trade unions began only in the month of July 1990.
Internal administration
338. The Committee of Experts took note sometime ago of section 36 of the Regulation respecting trade union associations which stipulates that trade union executive bodies are required to provide the labour authority with the books and registers of the trade union "at the request of any of its members". The observation was made because such a provision permits an excessive degree of intervention by the labour administration in the books and documents of a trade union organisation.
339. During the direct contacts mission in 1983 the Vice-Minister of Labour explained to the representative of the Director-General that the purpose of the provision was not to facilitate interference by the labour administration in trade unions but rather to provide a better protection of the rights of members in the event of any irregularity. Another text was proposed to the authorities and trade union organisations which stipulated that the books and documents should be shown "at the request of a number of members equal to ten per cent of the total". This formula was accepted by the Ministry officials and considered appropriate by the trade union officials.
340. Despite the repeated observations of the Committee of Experts the text of section 36 had not been amended.
Activities and action programme
341. Two matters concerning the right of trade union organisations to organise their activities and draw up their programme of action remain pending and are the subject of observations by the Committee of Experts: the political activities of trade unions and the right to strike.
342. As regards political activities, the Committee of Experts considered that section 204(b) of the Labour Code contains a general prohibition of political activities by trade unions and requested the Government to amend this provision.
343. According to the observations made in 1983 to the representative of the Director-General during the direct contacts mission, the Ministry of Labour considered that this prohibition was not applied in practice and thus it was possible to suppress the above-mentioned provision of the Code.
344. As regards the right to strike, the Committee of Experts requested the lifting of restrictions which it considers detrimental to the exercise of this right (sections 225, 228 and 314 of the Code).
345. During the study mission the Ministry of Labour explained that the extremely complex procedures for strikes to be recognised as legal were due to the anti-popular nature of the Somoza dictatorship. The Sandinista Government gave full recognition to the right to strike although it could be exercised only as a last resort. In this respect the authorities referred to the foreign aggression against the country, the effects of strikes on the possibilities of economic recovery, the economic blockade and the technical shortcomings of the country's production structure.
346. Strikes had been prohibited during the state of emergency and the mission obtained information on the situation following the lifting of this measure in January 1988. For trade union organisations opposed to the Government, the re-establishment of the right to strike had made little difference in practice since workers wishing to call a strike were subjected to threats and reprisals and in such cases the Act on the maintenance of public order and safety was also applied.
347. On the other hand, other trade union organisations such as the National Association of Teachers of Nicaragua (ANDEN) mentioned strike movements in their sector although no reprisals were taken.
348. The authorities of the Ministry of Labour informed the study mission that unions had resorted to strike action, even during the state of emergency, without any repression by the Government. Since the lifting of the state of emergency, the vast majority of strikes were declared without the provisions of the Labour Code being strictly applied. On the other hand, sometimes strikes had been used as a means of promoting economic boycott and political agitation which led to the intervention of the authorities and even the arrest, for a short period of time, of the instigators.
349. During its visit to Nicaragua, the Commission received various reports on the exercise of the right to strike. Trade union officials in the public service pointed out that in 1988 there were approximately 90 strikes in institutions in the public sector and that several strikes had been held in 1989 following the infringement of clauses of collective agreements and for wage claims. The last strike during the Sandinista Government occurred in the Ministry of Labour in January 1990. In these disputes, the legal procedure was not applied regarding the declaration of a strike since the process was excessively complicated. On the other hand, an agreement was reached with the authorities that wage claims should be submitted to negotiating committees. The declaration of a strike's illegality must be made by a labour inspector. Decisions may be appealed before the Ministry of Labour and if confirmed there still remains the option of lodging an application for relief before the Supreme Court (Act No. 49). The subject of strikes was not dealt with by the reform of the Labour Code under Act No. 97 because of its political implications.
350. For their part the ATC officials stated the trade unions affiliated to this organisation had held 57 strikes in 1989.
351. The General Secretary of the Workers' Front explained to the Commission that during the Sandinista regime there had been short strikes, called work stoppages, in various sectors of activity. But only in exceptional cases had there been extensive strike movements, as in the building sector. The legal procedure for settling disputes and recourse to strike action had not been followed in practice, since it would take between four and six months. Therefore, the trade unionists make no use of the procedure since it is impossible to carry out a legal strike. The situation has not changed at the present. As regards the political activities of trade unions, such activities had been permitted for Sandinista trade union organisations but not for other organisations.
352. The officials of the CGT(i) pointed out that during the Sandinista Government trade unionists had been arrested for going on strike although in general the arrests lasted for only a few days and there were no court proceedings. There had been prohibitions against political and trade union activities. Many trade unionists were arrested for short periods of time as a form of intimidation if they did not follow the guide-lines established by the Government or if they maintained an independent position vis-à-vis the officialist organisations.
353. The Chief of Police confirmed that strikes had been prohibited during the state of emergency and that persons who participated in them could be arrested, which happened in practice. This state of affairs ended when the state of emergency was lifted.
354. According to the General Secretary of COSEP, during the previous Government the provisions established regarding the declaration of a strike were not respected. The chapter concerning the strike procedure for which provision is made in the Labour Code was suspended and the Ministry of Labour was authorised to accept claims which it considered could be processed. Several short labour stoppages occurred, as well as a few long strikes such as that which occurred in the building sector in 1988, but the established procedure was not observed. The provisions established in the Labour Code are still disregarded at present.
355. As regards the various aspects mentioned earlier, the Ministry of Labour stated that during the Sandinista period there had been only two strikes and that those who supported it were arrested. Strikes were always prohibited in practice and had been reduced to a minimum. At present, except in two cases, no strike had been declared illegal. Strikes were held without compliance with the procedures established in the Labour Code.
Collective bargaining
356. The complainants had alleged that Decree No. 530 dated 24 September 1980 made collective agreements subject to the approval of the Ministry of Labour for economic policy reasons, which effectively infringed on freedom of negotiation and that, although the competent bodies of the ILO repeatedly stated that this was a violation of Convention No. 98, the Government had done nothing to remedy the situation.
357. Furthermore, the complainants pointed out that wages could not be the subject of collective bargaining since they were determined by the National Labour and Wages Organisation System (SNOTS) which establishes categories of employment and their corresponding rates of remuneration.
358. The Government denied, in its reply dated 5 January 1988, that the above-mentioned decree infringed on the right to collective bargaining. It said that provision had been made for a process of mediation: in the event of disagreement the matter would be resolved, during the state of emergency by an arbitration tribunal, and in normal circumstances by means of a strike. As regards the SNOTS, it pointed out that it was a system which enabled employers and workers to participate in discussing the bases of job content with a view to fixing wages according to the amount and complexity of the work performed.
359. The authorities of the Ministry of Labour explained to the study mission that at the beginning of the Sandinista Revolution many private enterprises began to "decapitalise" their assets. One of the methods to this end was to grant, during the collective bargaining stage, conditions of work that were beyond the actual capacity of the enterprise; this enabled them, in the medium term, to request the suspension or closing-down of the enterprise on the grounds of a lack of liquid assets or insolvency. The Ministry of Labour authorities therefore decided to play a more active part in the negotiations, with prior knowledge of the enterprises' situation, with a view to safeguarding jobs. In the same way it has been necessary to make a national effort to organise income levels in order to eliminate unfair differences in wages and to determine procedures for classifying the country's occupational structure. This resulted, as from 1984, in the application of the National Labour and Wages Organisation System (SNOTS), which established categories of employment and corresponding rates of remuneration. According to the Ministry of Labour these categories were determined through tripartite negotiations which took account of the characteristics of enterprises and of union claims. The Ministry of Labour believed that, despite the foregoing, the participation of the State in collective bargaining had not hindered the conclusion of collective agreements since, between 19 July 1979 and the second half of 1987, 1,192 collective agreements covering 380,665 urban and rural workers were signed.
360. The authorities of the Ministry of Labour pointed out to the mission that the economic reform adopted in 1988 reduced to a minimum the wage-fixing role of the Ministry of Labour and that at the moment the wage rates established within the framework of the SNOTS were used according to the economic capacity and profitability of each work centre by means of bilateral negotiations between employers and workers. Centralised fixing of remuneration now takes place only for the central government administrations. Thus the role of the Ministry of Labour authorities was a purely formal one.
361. The workers' and employers' organisations with which the study mission had contacts recognised that the National Labour and Wages Organisation System (SNOTS) served only as a yardstick and that wages could therefore be fixed freely. The officials of the General Confederation of Labour believed that the SNOTS system was unworkable in Nicaragua since there was no real economic planning in the country. The National Union of Farmers and Cattle-breeders (UNAG) considered that this system was in fact a strait-jacket imposed on the social partners. UNAG described the role of the Ministry of Labour following the economic reform as that of an arbitrator. However, some of the organisations interviewed, especially the Council of Private Enterprise (COSEP), the Permanent Congress of Workers (CPT), the Confederation of Workers of Nicaragua (CTN) and the Workers' Front (FO) criticised the fact that agreements had always to be approved by the Ministry of Labour. However, it appeared that in 1988 the Ministry never refused to register a collective agreement.
362. In its 1989 observation on the application of Convention No. 98 by Nicaragua, the Committee of Experts for the Application of Conventions and Recommendations recalled that in previous observations it had drawn the Government's attention to the need to repeal Decree No. 530 dated 24 September 1980, section 1 of which stipulates that collective agreements must necessarily be approved by the Ministry of Labour before they can come into force. Even though, according to the information received, the SNOTS system was used solely for reference purposes and wages could therefore be fixed freely, no information was given concerning the abrogation of Decree No. 530 and thus collective agreements still have to be approved by the Ministry of Labour before they can come into effect, contrary to the provisions of Article 4 of Convention No. 98.
363. During the hearings in Geneva, the Minister of Labour said that when the legislative reform was introduced by the present Government, it was decided to respect the fundamental principles of Act No. 97 as regards collective bargaining and to maintain section 22, without its amendment by Decree No. 530, which re-established the free negotiation of collective agreements and no longer required approval by the Ministry. This avoided a return to the previous situation, which was an infringement of Convention No. 98.
364. Reference was made during this statement to Decree No. 8-90, dated 10 May 1990, which "empowers the Ministry of Labour to undertake a review of all collective agreements concluded between state institutions and their workers during the period between 25 February and 25 April 1990", without this measure affecting "the agreed wage policy".
365. The Minister explained that during the period indicated in the Decree, 52 collective agreements had been concluded, the vast majority of which had defects, such as the establishment of a single trade union of workers, and the inclusion of clauses which were extremely onerous for the economy of the country, and which clearly the new Government was not in a position to accept. According to the Minister, these agreements were of a strictly political nature and it is for this reason that the organisations of public employees accepted their revision within the framework of the national agreement reached on 16 May 1990. The review of the collective agreements within the framework of Decree 8-90 implies the total review but not the cancellation of the agreements. The clauses which, by their nature, could result in the annulment of an agreement were eliminated. This review implies the final establishment of a new collective agreement.
366. In the meeting held in Nicaragua with CST officials, the latter referred to the national agreement, the text of which was furnished to the Commission. This agreement establishes that the review of collective agreements would be undertaken with the participation of the signatories and the corresponding central organisations. The officials told the Commission that the renegotiation of the collective agreements, as established in the national agreement, should be undertaken at the level of each institution. However, at the moment the Government is endeavouring to centralise negotiations in the Ministry of Labour. Furthermore, the collective agreements are no longer being applied, contrary to the provisions of the national agreement. The clauses of said collective agreements contain no excessive benefits but they expressly recognise conditions of employment already observed in practice. Thus, for example, provision had already been made in many cases as far back as 1979 for the payment of compensation following the resignation of a worker.
367. The representatives of UNE, FETSALUD and the FNT informed the Commission that for several years internal agreements had existed in the public sector, and it had been decided to give them legal force on the basis of Convention No. 98. These agreements resulted in collective agreements, which are not being applied at the moment, contrary to the provisions of section 8 of the national agreement signed in May. In the health sector, five collective agreements were signed in 1989, but they are not being observed by the present administration.
368. Subsequent to these statements, in the agreement reached on 11 July 1990, when the Government ratified all aspects of the national agreement concluded in May of this year, specific mention was made of the application of certain collective agreements, along with their addenda and regulations, reached earlier in the public sector, pending their amendment.
369. For their part, COSEP officials maintained that collective bargaining was previously permitted only in state enterprises. With the nationalisation of enterprises, many which continued to be described as private had in fact passed into the hands of the State. In the private sector it was the Government which established conditions of employment; if private enterprises paid more than the wage rates established by the latter, they were liable to fines. They pointed out that in the countryside the ATC imposed its agreements on the farms. The chambers affiliated to COSEP had never signed a collective agreement. At the moment collective agreements have still not been concluded because of the current unrest. As regards the SNOTS, they pointed out that although the system had been revoked, it continues to be applied in the building sector.
370. Referring to collective bargaining legislation, CST officials pointed out that the Government had not intervened in bargaining since 1988 and had reduced its role to that of ensuring legality. During the previous Government bargaining occurred in both private and public enterprises. At the moment there is no bargaining, since the Ministry of Labour is not processing wage claims. Furthermore, new section 22 of the Code authorises the conclusion of collective agreements only if trade unions have legal personality. This provision is new and enables the Government to impede collective bargaining by refusing works' unions which do not have legal personality. Furthermore, they pointed out that the SNOTS system had not been applied for the last two years.
371. The UNAG officials told the Commission that the SNOTS system had not been applied in the countryside, except in the coffee and cotton sectors. The SNOTS system limited the free negotiation of wages and made it necessary to conceal the real rates which were negotiated in order to avoid the imposition of a fine.
372. The Commission listened to the views of the ATC officials, who said that their organisation had signed collective agreements with both state and private enterprises and that such agreements covered all workers, whether or not they were members of the ATC.
373. According to the previous authorities of the Ministry of Labour, collective agreements were concluded at the plant level in both the public and private sectors. In the building sector, however, negotiations for the entire branch were held with the Chamber of Building, affiliated to COSEP. With regard to Decree No. 530, they pointed out that this text was applied during the initial years, but that practice made it impossible to apply the provision requiring the approval of agreements by the Ministry of Labour. Indeed, when labour negotiations were finally started in the country, the participation of the State was gradually reduced and the number of collective agreements concluded prevented the participation of the Ministry in all the negotiations because of a lack of staff. It is for this reason that Decree No. 530 became obsolete. The Ministry of Labour intervened only in certain cases when requested. The officials added that the real objective of the Decree had been to give greater legal effectiveness to agreements, and not to submit them to the approval of the Government. The text contained a defect in legislative technique. They pointed out that the present Ministry is not processing claims, and thus preventing the use of the procedure established in the Act as regards collective bargaining. Furthermore, prior to the last amendment of section 22 of the Code all trade unions could negotiate, whether or not they had legal personality; legality had been a relative problem, but now it has become an essential element.
374. In a meeting with the Commission, the General Secretary of the Workers' Front also referred to the intervention of the previous Government in collective bargaining. He said that Decree No. 530 enabled the Ministry of Labour to establish the contents of collective agreements, which in this way became uniform. From 1985 no new agreements were negotiated, the validity of the existing agreements being simply extended. With the economic reform of 1988 this was no longer the case, and the Ministry began to accept the existence of collective bargaining without its intervention, except as regards the formal approval of the instrument of the agreement. The SNOTS system was also progressively abandoned, even by the Government itself. But there was never any formal derogation of the system.
375. In the meeting held in Managua the Minister of Labour repeated to the Commission that Decree No. 530 had been revoked with the new text of section 22 of the Labour Code. With regard to the Sandinista period, he pointed out that negotiations had indeed been held in the private sector as well as in the public sector. As regards the latter, he pointed out that of the 52 collective agreements concluded between February and April 1990, only two still have to be reviewed because of opposition from the respective trade unions, which have not appeared in the Ministry when convened for this purpose. Probably in these cases the Ministry will order the annulment of the agreements.
376. This matter was also mentioned by the officials of the Directorate General of Arbitration of the Ministry, who pointed out that the above-mentioned agreements contained clauses contrary to the Constitution, such as those which provide for co-management in certain ministries, or which are too onerous, such as those which establish excessively high bonuses or a minimum wage in dollars. The Ministry of Public Education and the Institute of Social Security and Welfare had requested the Directorate to declare null and void the respective agreements, on the grounds of the unconstitutional nature of some of their clauses.
377. As regards collective bargaining in general, the officials of the General Directorate of Arbitration explained that a distinction can be made between four periods following the establishment of the Sandinista Government: (1) an initial period, from 1979-81, when there were active negotiations in both public and private sectors; (2) between 1981 and 1985, when negotiation became increasingly less frequent until it ceased altogether. There were no longer any subjects on which negotiations could be held, since enterprises were not in a position to meet claims. Claims made during this period, which continued until February 1990, were channelled through the Sandinista central organisations of workers in the public and private sectors; (3) from February to April 1990, when there was a vigorous return to bargaining in the public sector; (4) under the present Government, when collective bargaining has begun to reappear more generally.
378. The above-mentioned officials added that during the period when collective bargaining disappeared, the CST made no claims to this effect. If opposition trade unions had made such claims, their officials would have run the risk of being arrested. At the moment, trade unions wishing to negotiate must have legal personality, as required by section 22 of the Code. If two or more trade unions wish to negotiate in an undertaking, as authorised by section 23, preliminary meetings are generally held in the General Directorate of Arbitration to harmonise the claims made by the organisations. Once this has been completed collective bargaining begins with the employer.
CHAPTER 11
PARTICIPATION IN THE PREPARATION OF THE LABOUR CODEAND IN TRIPARTITE CONSULTATIONS
379. A number of allegations referred to the fact that the COSEP had not taken part in the drafting of the Labour Code and to the obstacles that had been placed in the way of its participation in the tripartite consultations on economic and social matters. This was considered to reflect discrimination on the part of the government authorities against the employers' organisation.
380. The Government has referred, on a number of occasions, to the drafting of a new Labour Code. The matter was mentioned to the study mission, which was informed that the competent National Assembly committee had already consulted various trade union organisations, including some which were opposed to the Government and which confirmed this to the mission. At the Ministry of Labour it was stated that a round-table meeting would shortly be held on the subject at which all the employers' and workers' organisations would be represented. The COSEP stated however that it had not been consulted on the preparations for a new Labour Code.
381. Subsequently, in letters dated 3 and 8 February 1989, the Government informed the Committee on Freedom of Association that four draft Labour Codes had been prepared, one by the Government and the others by different opposition movements. The National Assembly had begun its consultations with employers' and workers' organisations; approval of the Code had been declared a matter of priority for the National Assembly and was included in its agenda for the 1989-90 Session. (Endnote 35) On 30 March 1989 the Government informed the Committee that the consultations with both trade unions and employers' organisations were well under way, as was demonstrated by the holding of a number of tripartite seminars on the subject in April. (Endnote 36) In its letter of 30 October 1989 the Government stated that it had invited the COSEP to these seminars.
382. The IOE informed the Committee in a letter of 12 April 1989 that the COSEP had not been consulted or even informed by the Government or the Legislative Assembly about the revision of the Code or any other legislative text. (Endnote 37) In a letter dated 24 August 1989 the IOE expanded on this information, stating that the meetings to which the COSEP had been invited had not dealt with the revision of the Code. The IOE stated emphatically that the Government was incapable of producing any convocation or agenda that it might have sent to the COSEP, or even the minutes of any meeting that the COSEP might have attended, specifically with respect to the past or future discussion of the many important reforms which the Government had promised the study mission would be made to the country's labour legislation, and which the Committee on Freedom of Association or the Committee of Experts had been calling for every year, for many years. (Endnote 38)
383. In a more recent communication, dated 3 November 1989, the IOE referred to the Tripartite National Seminar on Labour Relations, held in Managua from 30 October to 1 November 1989, with ILO participation. According to the COSEP, the proposed labour legislation reforms were not discussed at this meeting. Nevertheless, it had transpired from the debates that certain pro-Government trade union organisations were familiar with the content of the draft Code.
384. The final report of the Seminar records that the government representatives stated that the drafting of the proposed text had not yet been completed, and that the final version would be communicated to the sectors concerned as soon as drafted.
385. As regards broader tripartite consultations, the Government informed the Committee on Freedom of Association, in letters dated 3 and 8 February 1989, that it was setting up an institutional consultation body for workers and employers, without any distinction whatsoever, so that labour problems might be discussed more expeditiously. The President of the Republic, the Minister for Industry, Economy and Trade, and the Minister for Agricultural Development and Agrarian Reform had held discussions with all the employers' groups and trade union confederations. These meetings had given rise to a set of political and legal guarantees in respect of private enterprise activities, the creation of joint ventures and the setting up of ongoing consultative machinery. Through its leader, Mr. Ramiro Gurdián, the COSEP had recommended its members to participate in all discussions and meetings with government representatives, with a view to working out a system for agreements and consultation. (Endnote 39)
386. The position of the COSEP in this respect was explained by the IOE in a letter dated 12 April 1989 affirming that the Minister of Labour had not consulted the COSEP on the setting up of a national consultation body. The IOE reported that early in 1989 a number of ministries, which did not include the Ministry of Labour, contacted certain organisations belonging to the COSEP to discuss the country's economic recovery. These were isolated contacts, which were not followed up and cannot be considered as the institution of a system of consultation. (Endnote 40)
387. The Government reverted to this question in a letter dated 22 May 1989, in which it stated that doubts had arisen concerning the viability of a National Tripartite Consultation Commission. According to the Government, there was every indication that tripartite consultation yielded better results when organised by sector of economic activity, or focusing on specific and pre-established issues. Thus, in April 1989, a National Tripartite Consultation was held in the agricultural sector, with the participation of producers belonging to the COSEP and the UNAG, as well as of workers' organisations in this sector. The outcome made a favourable impression on the main employers' leaders, as evidenced by the statements made by COSEP leaders Mr. Gurdián and Mr. Dreyfus. A National Tripartite Consultation was planned for May 1989 in respect of the industrial sector. (Endnote 41)
388. A few days after this communication, the Government sent a further letter, dated 26 May 1989, in which it explained the obstacles it had encountered in the process of dialogue and consultation. The Government stated that some sectors clearly wanted the authorities' efforts regarding the country's economic recovery to come to naught, and sought to stifle any real possibility of political and economic consultation. The COSEP was absolutely inflexible in its attitude. The President of the Republic had invited the private sector to join in the measures the Government was undertaking to obtain financial resources from the international community, but the COSEP had published a communiqué forbidding its members to take part in joint missions with the Government. Moreover, it had expelled employers' leaders who had participated in such missions. (Endnote 42)
389. In view of the previous statements on tripartite consultations, the Committee on Freedom of Association requested the Government to clarify whether the COSEP had been invited to the meetings in question as an employers' organisation. (Endnote 43)
390. In a subsequent communication, dated 26 June 1989, the IOE referred specifically to this question, stating that the Government was trying to present a number of measures which it claims to have adopted as constituting a policy of consultation. According to the IOE, such statements were tendentious and even misleading, since these measures were either not taken by the Government or taken without COSEP participation. Thus the national tripartite consultation for the agricultural sector was held with neither the COSEP nor the UPANIC (a COSEP affiliate) as such, but with persons chosen by the Government from among the members of the two organisations. Neither COSEP nor UPANIC, as such, were able to express their opinion. (Endnote 44)
391. The national tripartite consultation for the industrial sector, announced by the Government for May 1989, did not take place, according to the IOE, and was apparently replaced by the setting up of an advisory committee for industry, to which members of the Chamber of Industry were invited by the Government in an individual capacity. (Endnote 45)
392. The IOE later referred to meetings to which the COSEP was invited between March and May 1989: one on labour inspection, to which the COSEP was invited ten minutes before the meeting started, so that it was unable to take part; another, on vocational training and employment creation, organised by the ILO and not by the Government; and a third, also organised by the ILO, to which it was unable to send any representative in view of the short notice given. (Endnote 46)
393. As regards the climate in which the tripartite consultations on agricultural and industrial matters took place, the IOE stated that criticism of the Government's economic policy had given rise to accusations of economic sabotage and threats against those who did not wish to participate under such circumstances. Mr. Gurdián, whom the Government had presented as being favourable to the consultations, gave his actual opinion and that of the UPANIC in a statement to a magazine to the effect that "These are not consultations at all, but blackmail, which is putting fear into those who have been summoned by the Government." (Endnote 47)
394. The Government reverted to the question of tripartite consultation in its letters of 30 October and 2 November 1989. According to the first of these, the COSEP had been invited to the meetings as an organisation. The second letter confirms that it took part in meetings of the Cotton and Coffee Committees and of the Consultative Committee for the Industrial Sector, which the Government had called upon to attend. The Government also stated that it wished to draw attention to the fact that when the COSEP was invited to take part, as an association, in meetings on matters within its sphere of competence, it stated that its delegates were going in a personal capacity, but that when its members expressed political opinions - which they were entitled to do as Nicaraguan citizens - they said they were acting on behalf of the organisation.
395. The communication of 2 November 1989 includes an appendix listing the names of the members of the Coffee, Cotton and Oil-seed Committees. The capacity in which these persons participated is given and some are shown as leaders or members of organisations belonging to the COSEP, and in some cases as COSEP leaders.
396. On the subject of the future reform of the Labour Code, as planned by the present Government, the Minister of Labour stated, when in Geneva, that tripartite consultations would be held and that a technical committee would be set up with the participation of the workers' confederations, the universities and even the ILO, whose advice would be sought.
397. The question of participating in the preparation of a new Labour Code was considered by the Commission during its talks in Nicaragua.
398. The COSEP leaders repeated that their organisation had never been consulted on the drafting of a new Code.
399. Representatives of the Ministry of Labour of the previous Government had informed the Commission that a number of draft codes had been prepared by political parties and trade union organisations, and one by the Ministry itself. They stated that they intended to submit the Ministry's draft Code to the ILO for its advice; after the elections, and in agreement with the Labour Commission of the National Assembly, the text would then be discussed by that legislative body. A number of seminars were held on the revision on the Code, including one with ILO participation, at which a number of issues were discussed, some which were relevant to the drafting of the new Code. The COSEP was always invited to these seminars and the Ministry of Labour must have proof of this.
400. The UNAG leaders informed the Commission that consultations were held with all sectors on the drafting of the new Code.
401. The leaders of the Sandinista Confederation of Workers (CST) explained that there were three draft Codes, drawn up by the legal advisers of the CST, the Christian Social Party and the Democratic Conservative Party. The draft texts had been prepared by jurists, and seminars were organised by academic institutions and attended by foreign jurists, as well as by union representatives and employers' representatives from the COSEP. They stated that it was not the Government that backed these meetings, or commissioned the labour law experts to organise them. It was on the basis of these draft texts that Act No. 97 to reform and supplement the Labour Code was finally drawn up.
402. The ATC informed the Commission that its organisation too had prepared a preliminary draft Labour Code, like the CST, the Ministry of Labour, the Christian Social Peoples' Party and the Conservative Party.
403. With reference to the tripartite consultation on economic and social questions, the COSEP leaders informed the Commission that their Council was always left out of the relevant committees. Nor was it consulted in any other way and when, occasionally, it was invited to tripartite meetings it was at very short notice. The Government had never kept its promise to form a national tripartite commission.
404. Former officials of the Ministry of Labour stated that committees had been set up for the agricultural and the industrial sectors which were attended by the Chambers affiliated to the COSEP. The COSEP expressed strong political opposition to the Government, and when it was invited did not reply, so that its members were then invited directly.
405. Leaders of the UNE, FETSALUD and FNT referred to the committees set up under articles 101 and 104 of the Constitution. According to article 101, the workers and other productive sectors have the right to take part in the preparation, implementation and supervision of economic plans. Under this article the National Planning Council was set up to issue guide-lines on the Government's macroeconomic plans, with the participation of the CST, ATC, public sector organisations and UNAG. The COSEP was invited to take part also, but refused as it disagreed with the economic policy of the Sandinista Government. The anti-Sandinista unions did not take part either. Some of the COSEP Chambers participated in the work of the agricultural and industrial committees, but stated that they did not represent the COSEP since the Council did not wish to be involved.
406. The UNAG leaders informed the Commission that consultations had been held in all sectors on the economic situation. They had not been consulted under the present Government and considered that there should be more thorough tripartite consultation in Nicaragua.
407. During the talks with the Minister of Labour, the latter informed the Commission that on 20 September 1990 a national consultation process was initiated, with the participation of 94 people representing workers', employers' and occupational organisations. Fifteen employers' organisations were invited and 16 workers', regardless of their representativity. The Minister stated that the COSEP was invited, but not to take part in the discussions since it was against participating as the employers' Council; nevertheless, its Chambers will be taking part in the consultations. He stated further that, under the Sandinista Government, the COSEP was not invited to tripartite consultations but that this situation had now changed.
408. The Executive Secretary of the COSEP, in a second interview, repeated to the Commission that his organisation had almost never been invited by the Sandinista Government for tripartite consultations, and that on the few occasions when it had received an invitation, this had been at such short notice that it was impossible to attend. The COSEP had not been consulted, for example, on the setting up of the SNOTS.
409. The General-Secretary of the Workers' Front (FO) told the Commission that the FO had not been invited to the national consultations nor to the consultations on the setting up of minimum wage-fixing machinery. He considered that this was due to political reasons since the Workers' Front has no links with the Government. The representatives of the CGT(i) and the Minister of Labour informed the Commission that at the present time the Workers' Front does not constitute or comprise trade union organisations.
410. On the subject of participation in the drafting of the Labour Code, the Executive Secretary of the COSEP emphasised that the Council had never been invited to any preparatory meeting under the former Government. The present Government had promised to consult them when the draft Code was being prepared.
411. The Secretary for National and International Relations of the CGT(i) informed the Commission that under the previous Government academic meetings had been held at the Centro-American University in connection with the drafting of a Labour Code and that the CGT(i) had taken part. On the other hand, the Government did not invite the CGT(i) or other opposition organisations to the seminars on the reform of the Code or to the tripartite consultations on economic and social matters.
412. The General-Secretary of the Workers' Front stated that under the Sandinista Government the FO took part in seminars on labour legislation but that these were not organised by the Ministry of Labour.
CHAPTER 12
TRIPARTITE CONSULTATION ON INTERNATIONALLABOUR STANDARDS
413. In their complaint, the complainants had stated that the most representative employers' organisation in Nicaragua is the Council of Private Enterprise (COSEP), which is covered by Article 1 of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The complainants allege that the Government did not consult the COSEP on procedures to ensure effective consultations, as provided in Article 2 of the Convention, nor on the matters dealt with in Article 5 of the instrument. Consequently it has not respected any of its obligations under the Convention as regards consultations with said organisation.
414. In its first reply, dated 5 January, 1988, the Government denied that Convention No. 144 had been infringed since the consultations to which the complaint referred had been carried out with the organisations which the Government, in its sovereignty, had considered to be the most representative. Nevertheless, the Government had no objection to consulting the COSEP as well at an appropriate time.
415. When the study mission examined this issue, numerous workers' and employers' organisations stated that they had not been consulted at all on the various labour matters dealt with in Convention No. 144. The COSEP leaders nevertheless stated that they had recently received some questionnaires from the Government on the subjects that would be discussed at the next International Labour Conference.
416. The Ministry of Labour emphasised to the mission how difficult it was to undertake tripartite consultations when there were so many trade union and occupational organisations in the country, with widely divergent opinions which resulted in frequent political disputes between them - quite apart from the fact that it was not always easy to determine which was the most representative organisation. The Government nevertheless stated that it was prepared to study the setting up a consultative commission on international labour standards.
417. At its November 1988 meeting, the Committee on Freedom of Association took note of the information compiled by the study mission on this question and requested the Government to set up and convene the aforementioned consultative commission - which should represent all employers' and workers' organisations - as soon as possible. (Endnote 48)
418. In a letter dated 15 February 1989 the Government stated that it had taken the necessary measures to set up a special tripartite consultative commission in March. The first item it would deal with would be the recently adopted Convention on Safety and Health in Construction. (Endnote 49) The IOE informed the Committee on Freedom of Association that this consultative commission had not been set up. (Endnote 50)
419. As already reported in connection with participation in tripartite consultations (Chapter 11), the Government stated in its letter of 22 May 1989 that doubts had arisen as to the viability of having national machinery for consultations of this kind. In the Government's view, such consultations would be more effective - in respect of international labour Conventions also - when carried out by sector of economic activity or on specific pre-established issues.
420. On the other hand, the Government stated in the same letter that since the 76th Session of the International Labour Conference would be dealing (in second discussion) with the proposed revision of the Convention on Indigenous and Tribal Populations (No. 107), it had organised a national tripartite seminar on the subject, to which COSEP AND UNAG and the most representative trade union organisations in the country had been invited. Unfortunately the COSEP did not attend although it had been invited in time. According to the Government (see the preceding chapter), the COSEP's inflexible attitude prevented this organisation from participating in the consultations on international labour standards. (Endnote 51)
421. In a letter dated 24 August 1989, the IOE commented on the Government's earlier replies and with regard to tripartite consultations on Convention No. 107, reported that it was the ILO and not the Government which organised and prepared well in advance with the Ministry of Labour the consultations held from 8 to 10 May 1989 on the revision of the Convention. At the request of the ILO, the Government invited the COSEP, in a letter dated Tuesday 2 May which was delivered direct to the COSEP on Friday 5 May at 4.30 p.m., leaving it barely 24 hours in which to find an expert in a specialised and controversial field to represent it on Monday 8 May, which in fact it was unable to do. (Endnote 52)
422. During the Commission's visit to Nicaragua, the COSEP leaders stated that they had never been consulted on Convention No. 144. However, the former Ministry of Labour officials stated that the Government had sent the questionnaires for the first report in connection with the drafting of an ILO Convention to the various confederations, seeking their observations, but that many did not reply. The COSEP secretariat had informed the Ministry that these observations had been sent to the IOE to be passed on to the ILO.
423. Furthermore, the former Ministry authorities explained that they had given a broad interpretation to Convention No. 144 in that consultations were held in tripartite committees (agricultural and industrial) on labour matters covered by an ILO Convention. This is what happened, for example, in respect of safety and health questions.
424. The Executive Secretary of the COSEP repeated to the Commission during its second visit to the country, that the Sandinista Government had not consulted the COSEP on Convention No. 144 and that an invitation had been received in respect of the revision of the Convention on Indigenous and Tribal Populations (No. 107) shortly before the meeting began. The COSEP had not received copies of the Government's reports, as required by article 22 of the Constitution nor the questionnaires in preparation for an ILO Convention or Recommendation.
IV. CONCLUSIONS AND RECOMMENDATIONS
CHAPTER 13
CONCLUSIONS
Preliminary observations: Special characteristics of the inquiry
425. In accordance with the procedure established by the Constitution of the ILO (article 28) the Commission must present its conclusions embodying its findings on the events examined within the terms of its mandate (see in particular paragraph 151) and then set forth its recommendations on the steps which should be taken in this respect.
426. Before proceeding, the Commission would like to draw attention to the special character of the situation raised in this case. It concerns a matter in which the complaint and other allegations made refer to a government which lost office during the course of the inquiry and was replaced by another government of a totally different political tendency. The situation has changed to such an extent that the respective positions of the parties concerned - Government and employers' and workers' organisations - have become reversed. The party which was in power, the Sandinista National Liberation Front (FSLN), is now in opposition (after having lost power as a result of the general elections of 25 February 1990) along with the trade union organisations which supported it. On the other hand, the main political components of the previous opposition became part of the new Government which has received the support of COSEP, the employers' organisation whose leaders had had serious problems with Sandinista Government as well as of trade union organisations which had complained of acts of discrimination and persecution by the latter.
427. It is in this context that the Commission gathered information on the matters pending before the Committee on Freedom of Association when it was appointed by the Governing Body, as well as on subsequent developments, which concern both the Sandinista Government and the present Government in respect of the application of Conventions Nos. 87, 98 and 144.
428. The change of authorities has had its consequences as regards the gathering of information. In the case of the Ministry of Labour, for example, documentation covering the previous period was missing. In order to gather information on this period and evaluate the position of the Sandinista Government with respect to it, the Commission also met with the labour authorities of this Government and proceeded in the same way as regards the confiscation of property belonging to employers' officials for agrarian reform purposes and as regards matters of internal order, met with the current Chief of Police who had been Vice-Minister of the Interior under the FSLN Government.
429. The Commission was unfortunately unable to meet with officials of several trade union organisations as well as other persons to whom the complaints made had referred and who failed to keep the appointments made.
430. A further comment which the Commission would like to make refers to the obtaining of information on current legislation as regards both labour matters and civil rights. The legislative changes introduced have been abrupt and at times erratic and seem to have contributed to a certain lack of information concerning the validity or repeal of statutory provisions applicable in such matters. On more than one occasion the Commission heard contradictory opinions in this respect by persons concerned, including members of the previous and present authorities.
431. Lastly, the Commission would like to express its gratitude to the authorities for the facilities made available in the country during the course of the inquiry. The Commission recognises the difficulties which arose during its first visit as a result of the general strike held at that time. During the two visits made, the Government allowed the mission at all times to carry out its tasks in full freedom and wherever possible collaborated in establishing the programme of meetings.
432. The Commission would also like to express its thanks for the support provided by the Office of the United Nations Development Programme (UNDP) in Managua and for the material assistance furnished by the latter in carrying out its tasks.
Civil liberties and their relation to the exercise of trade union rights
433. The Committee on Freedom of Association has examined many cases, including the complaint made under article 26 of the Constitution, concerning the exercise of civil liberties in relation to trade union rights. Some of these matters, which were pending before the Committee when the Commission was appointed and to which reference had been made in detail by the study mission carried out in September-October 1988, concerned judicial safeguards, in the case of the arrest of trade unionists and the director of a COSEP agency, as well as the right of expression, the right to demonstrate and the right of assembly.
434. The Sandinista Government referred repeatedly to the foreign aggression to which the country was subject to explain and justify the measures which had been taken, the purpose of which was to protect and guarantee the security of the State.
435. The exercise of civil liberties in relation to trade union rights should be examined on the basis of the provisions contained in Article 3 of Convention No. 87. It is in connection with this standard that the respect of certain basic human rights acquires its full importance for trade union life. The above-mentioned Article stipulates that workers' and employers' organisations have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes; for their part the public authorities must refrain from any interference which would restrict this right or impede the lawful exercise thereof.
436. The intervention of the authorities may take the form of legal texts or acts affecting certain civil liberties the absence of which "removes all meaning from the concept of trade union rights", as stated in the resolution concerning trade union rights and their relation to civil liberties adopted by the International Labour Conference in 1970. This resolution, which is constantly invoked by the ILO supervisory bodies in dealing with this kind of problem recognises that the rights conferred on workers' and employers' organisations are based on the respect of the civil liberties enumerated in particular in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ratified by Nicagragua). According to the resolution, the following are essential for the exercise of trade union rights: (a) the right to freedom and security of person and freedom from arbitrary arrest and detention; (b) freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media, regardless of frontier; (c) freedom of assembly; (d) the right to a fair trial by an independent and impartial tribunal; (e) the right to protection of the property of trade union organisations.
437. The question of judicial safeguards in the cases dealt with by the Committee of Freedom of Association referred specifically to the functioning of the anti-Somoza people's courts, the Act respecting the judicial powers of the police, the Police Code and the Code of Criminal Procedure. The anti-Somoza people's courts were abolished in January 1988, when the state of emergency in force in Nicaragua was finally revoked. Serious criticisms have been made of these courts and their procedures which did not offer the necessary guarantees of an independent judicial body (see Chapter 8). Subsequently, in its meeting of November 1988, the Committee concluded, in referring to the other texts in force, that the Government should use the peace process which had been initiated in Nicaragua to adopt legislation extending the judicial safeguards.
438. The Act respecting the judicial powers of the Sandinista police was issued at the beginning of the 1980s and established the position of police examining magistrate. In October 1989 the above-mentioned Act was amended to become the Act respecting the functions of the Sandinista police, which is currently in force. In particular, the provision respecting the position of police examining magistrate was suppressed but investigative functions continued to be carried out by the departments of criminal proceedings which exist in each of the units of the police force. Detained persons may be kept in custody for a period of 72 hours and the chief of criminal proceedings may release them or issue an order for their arrest for up to six days.
439. Since the procedure had not changed substantially as regards the previous situation, in September 1990, when the Commission made its second visit to Nicaragua, the National Assembly was discussing a reform of the current Act. The purpose was to reduce the period of detention, speed up police intervention and give control over the judicial proceedings to the courts.
440. As regards the Code of Criminal Procedure, which dates back to 1872, the National Assembly would like to see it amended, with a tendency being expressed for the restoration of trial by jury.
441. As regards the arrest of trade unionists, the cases pending before the Committee on Freedom of Association concerned members of the Confederation of Trade Union Unity (CUS), the Peasants' Union of Posoltega and the Union of the National Bus Company (ENABUS). The previous Government furnished details on these cases in October and November 1989. According to the Government, several of the persons mentioned had never been arrested, others (three in 1986 and one in 1989 (sic)) had been arrested for collaboration with armed groups and they had been subsequently granted amnesty, pardoned or simply released. The officials of the ENABUS union who had been sentenced in 1983 to several years of imprisonment for acts of sabotage and concerning whom the Committee had requested a reduction in the sentence or the adoption of amnesty, had also been released.
442. On 13 March 1990 the Sandinista Government adopted the General Amnesty and National Reconciliation Act (No. 81) "in accordance with the accords signed by the Central American Presidents and with the agreement reached with the Nicaraguan political forces in order to achieve national reconciliation". When the new Government took over, it promulgated the Amnesty Act (No. 100) of 10 May 1990, repealing the former Act. According to the explanations given to the Commission by the Minister of Labour, the scope of this Act - which grants a full and unconditional amnesty in respect of all political offences and related criminal acts committed by Nicaraguan citizens - is so broad that at the present no one is being held and the trade unionists who had been arrested under the Sandinista Government have been granted their full freedom.
443. In fact, according to the information received by the Commission during its visit to the country, it would appear that no trade unionists were still under arrest for trade union matters when the Acts respecting the amnesty were issued. These Acts were preceded by pardons or other amnesty measures which did affect trade unionists. In any case, the amnesty Acts allowed any trade unionist who was still in prison at that time to be released. Furthermore, the Act respecting the maintenance of public order and security which had led to the arrest of employers' and workers' officials under the Sandinista Government, seems to have been little applied in 1989, before being repealed on 30 October of that year. It appeared from the comments made that the peace process which had been given momentum by the accords signed by the Central American Presidents had had a significant effect on the situation during the final months of the Sandinista Government.
444. Mr. Mario Alegría Castillo, Director of the Nicaraguan Institute for Social and Economic Studies (INIESEP), a COSEP agency, had been sentenced in June 1988 to 16 years of imprisonment by a criminal court of the District of Managua, accused of revealing secret and classified official information and having thereby violated the Act respecting public order and security and the Penal Code. The information was of an economic kind and, according to the Committee on Freedom of Association, the professional functions of Mr. Alegría - who was responsible for carrying out economic research and studies - necessitated his access to information to carry out his work. The sentence was issued by a former judge of the anti-Somoza people's courts and criticisms have been made against the judge because of the evidence on which the verdict had been based (a confession by the defendant in a video cassette filmed in prison). The sentence was overturned on 28 April 1989 by the Appeal Court of the Third District (Managua) and Mr. Alegría was declared innocent.
445. The complainants had expressed the view to the Committee on Freedom of Association that both COSEP and INIESEP and Mr. Alegría should be compensated for the moral and material prejudice suffered, in pursuance of the provisions of article 9.5 of the International Covenant on Civil and Political Rights which is binding on Nicaragua. The Committee hoped that any compensation request filed by the person concerned would be examined in conformity with this provision. (Endnote 53)
446. The above-mentioned article establishes that "anyone who has been victim of unlawful arrest or detention shall have an enforceable right to compensation".
447. It was pointed out to the Commission during its meeting with magistrates of the Supreme Court that legislation in Nicaragua makes no provision for compensation in this respect and no judicial cases have arisen which would allow reference to any applicable case law.
448. The right of expression was the subject of several complaints to the Committee on Freedom of Association since the restrictions imposed by legislation also affected employers' and workers' organisations. During most of the period of the Sandinista Government this right was regulated by the Provisional General Act on the Media, which was promulgated in 1979 and subsequently revised in 1980 and 1981. A new Act on the Media and Social Communications was promulgated in April 1989. The Committee noted with regret that the Minister of the Interior retained the right to impose temporary suspensions on the press.
449. This Act was amended and the Supreme Electoral Council was entrusted with its enforcement as regards election law. Subsequently, by Act No. 78 dated 12 March 1990, the Sandinista Government repealed the Act, its amendment (Act No. 64 dated 29 September 1989) and Decree No. 511 respecting the regulation of information on internal security and national defence.
450. From the information collected by the Commission it appears that the Media and Social Communications Act was not applied in 1989 although it remained a constant threat. However, following the so-called peace negotiations the right to expression was once again respected and at the moment there is no Act in force in this sphere. A wide freedom exists in this respect, as the Commission itself was able to note during its visits.
451. Finally, the right of assembly, the exercise of which had come up against practical difficulties as certain trade union organisations had pointed out to the study mission, was also regulated by the Act respecting the maintenance of public order and security, as well as by some regulations considered obsolete by the authorities. As already noted, this Act was no longer applied in 1989.
452. According to the Chief of Police, public meetings were still subject to prior authorisation, which at present is granted without difficulty. This requirement does not apply to meetings held in private premises.
453. In the light of all these circumstances it appears that in many cases examined by the Committee on Freedom of Association (some of which were still pending before the Committee) there was an infringement of Article 3 of Convention No. 87 with the failure to respect basic civil liberties related to the exercise of trade union rights, particularly as regards the freedom and safety of persons, judicial safeguards and freedom of expression, with all the consequences which this implies. However, the situation had changed in the final year of the Sandinista Government, both in law and practice. A significant influence was exercised in this respect through the accords reached by the Central American Presidents with the process, as regards these matters, culminating in the repeal by that Government of the Act respecting maintenance of public order and security and the Media and Social Communications Act, which had already ceased to be applied even though they were felt as a threat by certain sectors of the opposition, and the adoption of the General Amnesty and National Reconciliation Act, which was subsequently replaced under the Government of Mrs. Violeta Barrios de Chamorro by a wide-ranging Amnesty Act. The various pieces of legislation on public order and social communications media have not been replaced by this Government following their repeal and the National Assembly was discussing the reform of the Act respecting the functions of the Sandinista police, with a view to extending the guarantees of detained persons and strengthening the powers of the courts in the conduct of judicial proceedings.
454. In these circumstances and as regards the various questions pending, the Commission would like to express a preliminary conclusion on the arrest and sentencing of certain trade unionists as well as the Director of INISIEP, a COSEP agency: the Commission believes that bearing in mind the police and judicial procedures applicable at the time when the arrests were made and the sentences issued as regards the former and the conditions in which the sentence was made in the latter, the persons concerned were not given the necessary judicial guarantees to ensure them a fair trial. A second conclusion concerns the more recent period and the various matters examined in the field of civil liberties: the information available shows that there has been a positive development in law and practice which is creating a more favourable framework for the growing respect of civil liberties which are essential to the exercise of the trade union rights set forth in Article 3 of Convention No. 87.
Expropriation of land belonging to employers' leaders
455. The Commission would like to clarify first that it is examining this issue only in so far as the expropriation of land for the purposes of agrarian reform might have constituted an act of discrimination or sanction against the persons concerned because of their functions or activities as leaders of an employers' organisation. In such case this would be an infringement of Article 3 of Convention No. 87 by means of an intervention of the public authorities resulting in a limitation of the rights specified in the aforementioned article or a restriction of its legal application. The provisions of this Article also apply to federations and confederations (Article 6).
456. The expropriations which the Committee on Freedom of Association examined concern first an initial period up to 1985 affecting several officials of COSEP and its affiliated organisations and on which the 1988 study mission reported; secondly, expropriations made in July 1988 and June 1989 concerning which the Government had not sent its information when the various allegations pending in the cases concerning Nicaragua were last examined by the Committee (November 1989). Both matters were still pending before the Committee.
457. The allegations concerning the initial expropriations referred in particular to Messrs. Enrique Bolaños, at that time President of COSEP, Ramiro Gurdián, Vice-President of COSEP, Benjamín Lanzas, Vice-President of COSEP and Arnoldo Alemán Lacayo, President of the Association of Coffee Producers of Nicaragua and Vice-President of the Union of Nicaraguan Agricultural Producers. In a meeting with these persons, the Commission was informed of the reasons which had allegedly resulted in each of these expropriations: their functions as employers' leaders or expressions or attitudes which were critical of the Government. It was stated that COSEP had in fact been the only organisation to present a solid opposition to the Government. The discriminatory nature of these measures also allegedly resulted from the form of the expropriations, which consisted of individual measures directed specifically against the persons concerned. In turn, the Sandinista Government had pointed out that the expropriation measures were on the contrary due to the requirements of agrarian reform, which had been introduced by an Act of 1981.
458. In the particular case of Mr. Enrique Bolaños, the latter pointed out to the Commission that his property was the only one expropriated (along with that of another person) in a wide area which had been declared subject to expropriation by the Government. According to the former Minister for Agricultural Development and Agrarian Reform, the expropriation was carried out following pressure by small peasant landowners in the region (the property of Mr. Bolaños was situated in an area of small farm holdings) and in pursuance of a provision of the Act which allowed such measures to be adopted in cases of this kind (see Chapter 9). The other landowners of the region were not expropriated because they agreed to leave their lands and accept compensation. The former Minister stated that Mr. Bolaños had not agreed to negotiate.
459. As regards Mr. Gurdián, at that time President of UPANIC, the expropriation of his farm was announced in a speech made by the Vice-President of Nicaragua, who stated that Mr. Gurdián was anti-patriotic. The former Minister confirmed to the Commission that the announcement was subsequently followed by a special decree and that the expropriation was not the result of the occupation of the farm by peasants (as the Government had previously informed the Committee and the study mission).
460. The most recent expropriations concerned Mr. José María Briones in July 1988 and Messrs. Arnoldo Alemán Lacayo, President of UNCAFENIC, and Nicolás Bolaños and Gilberto Cuadra Somarriba, officials of the same organisation and of the Association of Coffee Producers of Matagalpa, in June 1989. Mr. Briones' property was expropriated the day after a preparatory meeting of the General Assembly of COSEP, of which Mr. Briones was the host. The other expropriations were made immediately after a meeting of UNCAFENIC, which vigorously criticised the coffee policy of the Government. The 1989 expropriations took place after the President of the Republic stated, on 30 January of that year, that there would be no more confiscations.
461. According to the comments made by the former Minister to the Commission, the "confiscations" only affected absent landowners or those who had joined the "Contras"; "expropriations" for the purposes of agrarian reform could still be made, although the period for expropriating properties had concluded in 1986-87.
462. The Commission, in the exercise of its mandate, gave special attention to all items of information which would allow it to form an opinion on the reasons for the expropriations and their possible discriminatory or punitive character, in accordance with the allegations made in the complaints.
463. For example, the expropriation of property belonging to Mr. Enrique Bolaños was described as obviously political by the Director of the Standing Committee on Human Rights (CDPH) an organisation which was critical of the Sandinista Government; but the leaders of UNAG, an association which was close to the Sandinista movement, also shared this opinion and believed the expropriation was abusive. For their part, the officials of the National Agrarian Reform Institute said that the case had been given great publicity because of the political importance of Mr. Bolaños, who was an irreconcilable enemy of the Sandinista Government. According to these statements, the general opinion at that time seemed to be that this expropriation was a political matter. On the other hand, the former Minister for Agricultural Development and Agrarian Reform saw no predominantly political motivation in this case, as could be seen from the fact that none of the many other properties owned by the person concerned had been expropriated.
464. More generally, the officials of the above-mentioned Institute (the Vice-Minister of the Agrarian Reform Institute was a former official of the Sandinista Government) pointed out that of the expropriations which affected many persons, some were also unjust and illegal; however, when the expropriations affected COSEP officials, they were given wide publicity, which did not happen in other cases of expropriation for arbitrary or vindictive reasons, etc.
465. The former Minister admitted that mistakes had been made in the expropriations and that as regards the other officials of COSEP and its organisations, it is possible that, in an objective context, the motivation of the respective expropriations was primarily political.
466. With account being taken of these various factors, as well as the special and revealing circumstances surrounding some of the expropriations which affected the above-mentioned officials, the Commission believes that the decisions taken were influenced to a greater or less extent, depending on the case, by the fact that the persons concerned were employers' leaders who were strongly opposed to the Government, who adopted critical attitudes to the Government or who collaborated closely with the respective organisations. This does not mean that there was not a framework of objective reasoning, sanctioned by the Act, to justify officially the expropriations. But even in these cases the element of discrimination based on such circumstances appears to have been decisive. To this extent the Government's action was contrary to the provisions of Article 3 of Convention No. 87.
467. The Committee on Freedom of Association had concluded, in examining the initial cases of expropriation, that the measures had been particularly biased against COSEP leaders and members, that the provisions relating to compensation for expropriated land should be reviewed to ensure that there was real and fair compensation for the losses sustained by the landowners, and that the Government should reopen the compensation files when so requested by persons who consider that they had been despoiled. (Endnote 54)
468. According to the information which the Commission managed to obtain, the expropriated lands were returned by the Sandinista Government to Messrs. Gurdián, Alemán Lacayo, Nicolás Bolaños and Cuadra Somarriba. The situation as regards Messrs. Lanzas and Briones could not be clarified. According to the former Minister for Agriculture Development and Agrarian Reform, the restitution of the farm belonging to Mr. Enrique Bolaños had been impossible, since it had been handed over to peasants in a densely populated region.
469. The Commission notes that this kind of situation falls within the competence of the National Review Committee established by Legislative Decree No. 11-90, respecting the review of confiscations. Furthermore, in accordance with this legislation, if the lands could not be returned for reasons specified, compensation would be paid in cash (córdobas), rather than by bonds as established by the Agrarian Reform Act. The Commission believes that the provisions of this legislation are largely consonant with the above-mentioned conclusions of the Committee on Freedom of Association.
Trade union law and practice
Recognition of employers' right of association
470. In the complaint made under article 26 of the Constitution, it is alleged that the new Constitution of Nicaragua, adopted in 1987, implicitly denied the right of association of employers, whereas such a right was recognised for other categories of persons, in violation of Article 2 and Article 8(2) of Convention No. 87.
471. The Commission notes that article 49 of the Constitution in fact omits any explicit reference to employers as regards their right to set up organisations, even though it mentions, in addition to workers, professionals and other categories, agricultural and stockraising producers and the population in general. The Commission tried to determine the actual scope of the situation in this respect.
472. As regards the legislation which continued to be applied, the Labour Code covers both employers' and workers' unions. Section 188 establishes in general that the State guarantees the free establishment and functioning of trade union organisations for the defence of occupational interests and the social, economic and cultural advancement of their members. Section 189 establishes the minimum number of members required for the establishment of a workers' union and an employers' union respectively. The Regulation respecting Trade Union Associations includes employers' associations amongst the trade unions and also specifically mentions employers' unions as one of the kinds of unions, by membership (section 5). These provisions were repealed by Act No. 97 respecting reforms and additions to the Labour Code, on the eve of the change of government, and reintroduced by the new Government through Act No. 102 to reform the previous Act. It should be mentioned that Act No. 97 dealt only with the trade union rights of workers and not those of employers.
473. As regards the situation in practice, COSEP leaders informed the Commission that in fact there had never been any legal problems regarding the organisation of employers. COSEP itself, according to the Minister of Labour, would not be considered as a trade union. Employers' chambers or associations are regulated by standards which are different from those of trade unions. The information available shows that these organisations are regulated by the Associations and the Central Registration of Legal Persons Act of 1983, and the Chambers of Commerce Act of 1934, amended in 1965, respecting chambers of commerce, industry and agriculture.
474. COSEP officials added that this organisation and various employers' chambers did not have legal personality, and that in the case of COSEP this was the result of a deliberate decision taken to avoid the risk of having its application rejected. The Commission notes that, in accordance with the above-mentioned Act of 1983, the Council of State (a political body) could annul the legal personality in specific cases (for example, when it believed that the security of the State was being compromised). The Council of State was subsequently dissolved.
475. For its part, UNAG, which groups together co-operatives and also represents employers, has legal personality.
476. Thus the fact that the 1987 Constitution does not make explicit reference to the employers' right to set up organisations has not deprived them of the right of association, which they could have exercised in accordance with the provisions of the Labour Code and the Regulation on Trade Union Associations, or in accordance with the Acts of 1934 and 1983 respecting chambers and associations, even without having legal personality. In this sense, the Commission believes that there has been no violation of Article 2 and Article 8(2) of Convention No. 87.
477. This does not mean that an explicit constitutional guarantee should not be given at an opportune time concerning the right of employers to set up organisations with a view to promoting and defending their interests, which would place them on an equal footing with workers.
Recognition of the right of association of public servants and certain other categories of workers
478. This concerns a matter raised by the Committee of Experts on the Application of Conventions and Recommendations, and which has been pending for many years, concerning the infringement of Article 2 of the Convention, which recognises the right of all workers "without distinction whatsoever" to establish and join organisations. Both public servants as well as independent workers and workers employed in family workshops are excluded from the Labour Code and thus do not enjoy the trade union rights established by it.
479. A clarification should first be made with regard to public officials. The Minister of Labour explained that this term refers only to the directors of the public sector, that is, to a very small category of public servants. All other workers in the service of the State, that is, state manual workers and employees (the latter being included pending the promulgation of the corresponding Act respecting the civil service) are covered by the Code (section 187).
480. When in its final days the Sandinista Government promulgated Act No. 70 respecting careers in the civil service and the administration, officials and employees of state institutions (central and local administration, autonomous bodies and certain other institutions) and the administrative staff of state enterprises were included in this new legislation. The situation was less clear as regards manual workers in these enterprises, who appeared to remain within the scope of the Labour Code. Shortly afterwards, Act No. 97 respecting reforms and revisions to the Labour Code repealed the above-mentioned section 187 of the Code, which would have confirmed the inclusion of state employees and manual workers within the scope of Act No. 70.
481. Since this Act recognised that all workers in the public service covered by it (that is, also officials with the exception of those holding very special posts) have the right to "establish trade union organisations", the problem concerning Article 2 of the Convention as regards the small category of high officials excluded from the Code was resolved.
482. However, the new Government (which subsequently extended the above-mentioned exceptions) suspended the application of Act No. 70. For its part, Act No. 102 (which reformed Act No. 97) once again restored section 187 of the Code. Thus, for now, the previous situation has been re-established in which only the above-mentioned officials are denied the right to set up trade union organisations. As regards the situation in practice, workers in the public sector are organised primarily within the National Union of Employees, the Federation of Health Workers and the National Association of Teachers, which have legal personality, conclude collective agreements and make use of strikes. This continued to be the situation during the Commission's visit (for collective bargaining see below).
483. As regards independent workers, the Commission was informed that most rural workers are employed on a temporary basis and are organised into the Association of Rural Workers. This category, as well as the other independent workers and persons employed in family workshops, still do not have the right to set up trade unions under the Code. As regards these workers and the above-mentioned officials (in the restricted sense of the term) and except for the period when Act No. 70 was in force, the Commission can only confirm the observation made by the Committee of Experts concerning Article 2 of Convention No. 87.
The establishment of trade union organisations
484. The Commission proposes to examine here two different but related questions concerning the right of workers to establish organisations of their own choosing without previous authorisation (Article 2 of Convention No. 87).
485. With regard to the first question, the Committee of Experts had made an observation on section 189 of the Labour Code respecting the requirement of an absolute majority of the workers of an undertaking or work centre for the formation of a trade union. In this way, the Act was used to establish a system of trade union monopoly which is at variance with the principle of the free establishment of trade unions set forth in Article 2 of the Convention.
486. As pointed out repeatedly by the ILO supervisory bodies, this principle is not intended as an expression of support either for the idea of trade union unity or for that of trade union pluralism, although it does imply that the latter should be possible in all cases. There is a difference between a situation in which a trade union monopoly is instituted or maintained by law and the factual situation which the workers or their trade unions join together voluntarily in a single organisation. Only trade union unity imposed directly or indirectly by law is contrary to the Convention. (Endnote 55)
487. Act No. 97 to reform the Labour Code modified the situation. The new wording given by this Act to section 23 of the Code in fact established the possibility that there could exist more than one organisation with the right to negotiate a collective agreement (within or outside the undertaking), thus recognising all the most representative organisations (which are those which enjoy this right) the right to participate in bargaining according to their representative status. Section 200 of the Code, in the new text of Act No. 97, confirmed that there could exist more than one trade union in each work centre or institution, but it granted workers' representation to the trade union with the largest membership. In the same way, section 202 provided that the most representative trade union organisation would have the prerogative of negotiating collectively.
488. The apparent contradiction between these provisions (participation in bargaining by the most representative organisation(s)) disappeared with the repeal of the chapter respecting trade unions in Act No. 97, by Act No. 102 which contained sections 200 and 202.
489. However, the above-mentioned section 23 was not amended by Act No. 102 of the new Government. The Minister of Labour confirmed to the Commission that section 23 of the Code provides that several trade unions could coexist in the same undertaking, within the framework of democracy and trade union pluralism.
490. The Commission therefore believes that section 189 of the Code, which was noted by the Committee of Experts, has been implicitly amended by the new section 23 introduced by Act No. 97, and is thus no longer contrary to Article 2 of the Convention.
491. The second question concerns any intervention by the authorities to encourage the establishment of trade unions of a specific tendency or to hinder the registration of others. Problems of this kind were already examined by the study mission in 1988, under the Sandinista Government (see Chapter 10). At that time it was the opposition trade unions which complained of the situation, and the Government which denied the allegations and gave explanations. The complaint made under article 26 of the Constitution recalls these allegations when it refers to the "non-recognition of independent workers' organisations until they had made complaints to the ILO". At present the positions have been reversed and it is the Sandinista trade unions and the Workers' Front interviewed by the Commission which were complaining. The Ministry of Labour allegedly promotes the establishment of non-Sandinista trade unions which do not have the support of workers, imposing their recognition by the employer to the detriment of Sandinista trade unions, and facilitating the registration of the former and hindering that of the latter. Approximately 90 per cent of the registration applications pending are allegedly from Sandinista trade unions.
492. For their part, the Minister of Labour and the Director of Trade Union Associations of the Ministry denied that the registration of Sandinista trade unions was being hindered and stated that the register was up to date and that there had been no preference shown in trade union matters.
493. The statistics provided by the Ministry of Labour (see Chapter 10) show that in 1989 the vast majority of registered trade unions, and an even higher number of members, belong to the Sandinista current. In 1990 the figures available up to the month of August still showed a Sandinista majority, although less than in 1989. It was from July 1990 that the trend became substantially reversed, with the number of non-Sandinista trade unions and their members registered being considerably greater than those of the Sandinistas.
494. For the officials of the CGT(i) the increase in membership of this organisation is due to the fact that at present there are no restrictions on trade union activities as there had been under the previous Government. And yet, the Sandinista trade unions appear to be losing members.
495. The Commission does not have any definitive information enabling it to decide whether there was discriminatory intervention by the authorities in the establishment and registration of trade unions. The Ministry of Labour firmly denies that there is any waiting list and states that the register is up to date. It should be recalled in this respect that, under section 195 of the Labour Code, if the Ministry refuses to register a trade union (the legal time limit for which is ten days) a final appeal may be made to the Supreme Court of Justice. The Commission has not been informed of any cases pending on problems in this respect.
496. Furthermore, the Commission would like to recall the views of the Committee on Freedom of Association on these kinds of situations, namely that by placing one organisation at an advantage or a disadvantage in relation to the others, a government may either directly or indirectly influence the choice of workers regarding the organisation to which they intend to belong, since they will undeniably want to belong to the union best able to serve them, even if their natural preference would have led them to join another organisation for occupational, religious, political or other reasons. (Endnote 56) In any case, if there had been instances of favoritism or coercion by the authorities or obstacles in the registration contrary to the purposes of this procedure, a situation would be created which would be contrary to the right of workers to establish organisations of their own choosing without previous authorisation (Article 2 of the Convention).
Internal administration
497. Section 36 of the Regulation respecting Trade Union Associations has been noted by the Committee of Experts since it permits an excessive level of intervention by the labour authorities in the books and registers of trade unions. That provision provides that such books and registers must be presented to the authorities at the request of any of the members of a trade union. As the labour authorities explained to a representative of the Director-General of the ILO during a direct contacts mission in 1983, the purpose of this provision was to protect members' rights in the event of any irregularity. It was therefore a question of harmonising this objective with the provisions of Article 3 of Convention No. 87, which stipulate that the public authorities shall refrain from any interference which would restrict the right of trade unions to organise their administration and activities or impede the lawful exercise thereof. To this end, the representative of the Director-General proposed an alternative formula which was considered acceptable by the authorities and the trade union officials.
498. The Commission has not been informed of any complaints concerning this matter. Despite the time which has elapsed, the above-mentioned provision was not amended and ceased to have effect only during the short period when the Regulation respecting Trade Union Associations was repealed, from the end of the Sandinista Government to the beginning of the present Government, which reintroduced it.
499. Thus the Commission can only conclude that, except for the above-mentioned period following the adoption of Act No. 97, legislation in this respect has not been and is not compatible with Article 3 of Convention No. 87.
Activities and programmes
500. This section will examine two other matters concerning Article 3 of Convention No. 87 which have also been pending for some time before the Committee of Experts, namely, the prohibition of political activities by trade unions under section 204(b) of the Labour Code and the right to strike, which is subject to restrictions under sections 225, 228 and 314 of the Labour Code.
501. The Committee of Experts and the Committee on Freedom of Association have had to refer on many occasions to pieces of legislation which establish a broad prohibition of political activities by trade unions. They have considered that provisions prohibiting all political activities are incompatible with the principle of freedom of association (Endnote 57) and furthermore, cannot be realistically applied in practice. Even during the preparatory work leading to the adoption of Convention No. 87 it was pointed out, in defining a workers' organisation as one "for furthering and defending the interests of workers", that these terms do not restrict the right of trade unions to participate in political activities or limit trade union action to simply occupational matters. (Endnote 58)
502. The Commission believes that a broadly based prohibition of political activities by employers' and workers' organisations would be contrary to Article 3 of the Convention since it would impair the right of such organisations to organise their activities and develop their programmes of action. But at the same time such organisations should maintain their independence of political parties and in the development of their political activities.
503. The information available does not show that trade unions were dissolved as a result of their participation in political activities, as authorised by section 204(b) of the Labour Code. As regards other measures adopted by the Government, see paragraphs 433-469. The authorities had stated to the representative of the Director-General in 1983 that the provision of section 204 could be suppressed since it was not applied in practice. This was not carried out until the adoption of Act No. 97 respecting the reform of the Labour Code but when this Act itself was reformed by Act No. 102 the previous situation was re-established.
504. Thus, with the exception of this period, legislation respecting the political activities of trade unions has continued and continues to be incompatible with the provisions of Article 3 of Convention No. 87.
505. As regards strikes, it appears from all the information gathered that there have been very few major strike movements and that trade unions have had recourse to short work stoppages. In particular, the organisations opposing the Sandinista Government pointed out that in any situation of this kind trade unionists and workers of such organisations were subject to reprisals by the authorities. For their part the trade union officials of organisations close to the Government said that even though recourse had been made to strikes in their sector no reprisals were taken. However, there was a general consensus, which included the previous and present authorities of the Ministry of Labour and COSEP, on the non-application of the regulations concerning strikes and the established procedure for settling collective disputes. This procedure was considered so complicated that it was impossible to apply. From this standpoint, it appears that strikes and work stoppages would in general lie outside the field of legality even though they are not declared illegal.
506. The Committee of Experts had noted the provision requiring a majority of 60 per cent of the workers for the calling of a strike (section 225 of the Labour Code); the prohibition of strikes in rural occupations when produce may be damaged if it is not immediately disposed of (section 228(1)); the provision enabling the authorities to impose compulsory arbitration to end a strike that has lasted 30 days (section 314). These are restrictions on the right to strike which go beyond what is accepted by the ILO supervisory bodies and which infringe the right of trade unions to organise their activities (Article 3 of the Convention) for the purposes of promoting and defending the interests of their members (Article 10). Indeed, the above-mentioned section 225 of the Labour Code does not establish a simple majority but a qualified majority of the workers for declaring a strike, which makes action more difficult in this respect; section 228(1) includes in the definition of work in the public interest (in which strikes are prohibited by section 227) tasks which are not essential services in the strict sense as defined by the supervisory bodies (and where a prohibition or restriction of strikes would be acceptable); section 314 makes it possible to impose compulsory arbitration, equivalent in this case to the prohibition of the strike once it has lasted more than 30 days.
507. Act No. 97 introduced a simpler method for the settlement of disputes of a social and economic nature (section 25, under the chapter respecting collective agreements), which implicitly abrogated part of the previous procedure by providing that such disputes would be settled in accordance with this new machinery (section 28). As a result, section 314, which was included in the previous repealed procedure, also ceased to have effect. However, under Act No. 97, sections 225 and 228(1) mentioned above, included in the chapter respecting strikes, remained in effect.
508. However, under Act No. 102 the amendments to Act No. 97 concerning procedure were eliminated, and the previous legal situation was re-established. This remains the case at the present.
509. It can therefore be concluded that except for the brief period of the application of Act No. 97 as regards section 314 of the Labour Code, the provisions restricting the right to strike which are incompatible with Convention No. 87 have remained and continue to remain in force.
Collective bargaining
510. Both in the complaint made under article 26 of the Constitution and in the pending observations of the Committee of Experts, reference is made to Decree No. 530 of 1980 as an infringement of Article 4 of Convention No. 98. This Decree amended section 22 of the Labour Code and introduced a requirement that collective agreements must be approved by the Ministry of Labour.
511. The complainants also pointed out that the National Labour and Wages Organisation System (SNOTS) which established categories of employment and corresponding rates of remuneration, eliminated wages from the collective bargaining process, contrary to Convention No. 98. In this connection, the Committee of Experts had taken note with interest in 1989 that, according to the information provided by the study mission in 1988, the SNOTS was used only for reference purposes and that wages could be fixed freely.
512. As regards the practice of collective bargaining, the Commission can only note the contradiction between the different items of information received. Thus, for example, COSEP officials stated that there had been no negotiations in the private sector whereas, according to the Minister of Labour, collective bargaining had occurred in both the public and private sectors. The previous labour authorities referred to the large number of collective agreements concluded after the first period following the adoption of Decree No. 530, whereas the present authorities stated that in practice negotiations had taken place only until 1981 and that from then on collective bargaining was gradually reduced until it became paralysed in 1985. Some clarification was made by the representative of the Workers' Front who said that from 1985 no new collective agreements had been negotiated, but that the existing agreements had simply been extended. He added that with the economic reform of 1988 there had been a return to negotiation, without intervention by the Ministry, except as regards the approval of the agreements.
513. At all events, as regards this approval from the legislative point of view, it is clear that section 22 of the Code was amended by Act No. 97, which resulted in the disappearance of the requirement that collective agreements should be approved by the Ministry of Labour. This change was respected by Act No. 102 which reformed the previous Act. As regards the SNOTS, there was a general consensus regarding its implicit abrogation through non-application.
514. In these circumstances, the Commission must conclude that as regards these two aspects, legislation, preceded to some extent by practice, has ceased to be an obstacle to the "full development and utilisation of machinery for voluntary negotiation" as established by Article 4 of Convention No. 98.
515. Two other problems which arose subsequently remain to be examined.
516. It was pointed out to the Commission that Act No. 102 introduced an amendment to section 22 of the Labour Code so that, contrary to the previous situation, employers' and workers' organisations wishing to conclude a collective agreement were required to have legal personality. In this way the Ministry of Labour, by refusing to register a trade union (by which it acquires legal personality), could impede collective bargaining.
517. No specific cases have been reported to the Commission in which this has occurred. However, as regards possible obstacles to the registration of a trade union, the Commission refers to the above conclusion concerning the establishment of trade union organisations.
518. But this matter must also be examined from the standpoint of collective bargaining by employers' chambers and even COSEP. As can be seen from the section concerning the recognition of the right to organise of employers, neither COSEP nor various chambers have legal personality, although this does not prevent them from undertaking activities as employers' organisations. Traditionally, collective bargaining in Nicaragua is carried out at the plant level, with the parties to the collective agreement being individual employers rather than organisations, with the exception of the Chamber of Building and Construction. However, the situation may change with the introduction of bargaining at the branch level or higher levels. In such a case, the above-mentioned requirement of section 22 could be an obstacle to the "full development and utilisation of machinery for voluntary negotiation" which the Government should "encourage and promote" (Article 4 of the Convention).
519. The other matter concerns Decree No. 8-90 promulgated by the present Government which establishes the revision of collective agreements concluded by the State and its workers between 25 February 1990 (date of the general elections of the country) and 25 April 1990 (date when the new Government took office). Mention has been made in Chapter 10, in discussing collective bargaining, of the conflicting opinions on these agreements by the current labour authorities and the Sandinista trade unions which negotiated them. The former emphasise the excessive burden of the agreements and the unconstitutional nature ("co-management" in some ministries) of some of their clauses, which have been described as political. The latter emphasise that the clauses simply confirm pre-existing practices; in addition, they allege that several of these agreements had ceased to be applied by the state bodies.
520. According to the Minister of Labour, of a total of 52 agreements, all with the exception of two were being renegotiated. As regards these two agreements no progress has been made because of the opposition of the trade unions concerned. The Government will probably cancel these agreements.
521. The Commission believes that reference should be made here to some similar cases examined by the ILO supervisory bodies. As regards the so-called "co-management" in some ministries (which would involve trade union participation in the preparation of teaching plans), the Committee on Freedom of Association considered that the broad lines of educational policy, although a matter on which it may be normal to consult teachers' organisations, is not one for collective bargaining. (Endnote 59) With regard to the amendment by law of the contents of a collective agreement, the Committee has pointed out in a case that this measure is not consonant with Convention No. 98; (Endnote 60) in other cases, it has concluded more generally that the intervention of the public authorities in order to modify the contents of collective agreements would be justified only for cogent reasons of social justice and in the general interest. (Endnote 61) The Committee of Experts expressed similar views that such intervention could only be justified for major economic and social reasons and in the general interest. (Endnote 62)
522. For its part, this Commission believes that according to the principles of freely concluded contracts which inspire Article 4 of Convention No. 98 and which imply the autonomy of the parties and the respect of what is agreed, collective agreements must be applied without modifications unless these are decided upon by the parties themselves or unless such agreements or certain clauses thereof are suspended or cancelled on justifiable grounds by the authorities. As regards the first possibility, in this case, it is the trade unions and the Government which agreed to revise the agreements by means of renegotiation and this method appeared to be applied on an almost general basis. As regards a possible suspension or cancellation of the agreements or specific clauses thereof, the Commission is also of the opinion that such a measure would be appropriate only in exceptional circumstances, in accordance with the principles set forth by the ILO supervisory bodies, and in cases of manifest illegality. At all events, respect should be given to the possibility of appealing to the courts.
Participation in the preparation of the Labour Code and in tripartite consultations
523. These matters were still pending before the Committee on Freedom of Association at its meeting in November 1989. They concern allegations of discrimination exercised by the Government against COSEP concerning its participation in the preparation of the Code and in tripartite consultations on economic and social matters.
524. Although there is no obligation for governments to provide for such a participation under the terms of Convention No. 87, discrimination against a representative organisation would be tantamount to an act of favouritism or coercion which, in this case, would not only influence negatively the right of employers or workers concerned (or their organisations) to set up organisations of their own choosing (Article 2 of Convention No. 87) as pointed out above, but would also imply interference restricting the right of this organisation to exercise its activities, contrary to Article 3 of the Convention. It should be recalled that, under Article 6 of the Convention, the provisions of the two above-mentioned Articles also apply to federations and to confederations.
525. From all the information available regarding the first matter, it appears that several draft texts for the revision of the Labour Code were drawn up by legal advisers of trade unions and political parties and that academic seminars were held by the Central American University on labour matters. For its part, the Ministry of Labour was preparing a draft which had not yet been completed when the tripartite national seminar on labour relations was held (October-November 1989). This seminar, in which the ILO participated, did not discuss any draft Labour Code, although the government representative stated that once the Ministry draft had been completed, it would be communicated to the sectors concerned.
526. The COSEP representatives, confirming allegations made to the Committee on Freedom of Association, told the Commission that they had never been consulted about the preparation of a draft Labour Code. The Government had stated that COSEP was invited to the seminars held on this subject but, according to the information received by the Commission, these seminars were not organised by the Government. The Ministry of Labour only sponsored the tripartite national seminar on labour relations, organised by the ILO, to which COSEP was invited.
527. It appears from the above that the Government did not in fact appear to have available the text of a draft Labour Code and that the various references to consultations with employers' and workers' organisations concerned above all participation in seminars on labour matters and not to a specific government draft text. Such a draft text appears to have been concluded later, on the eve of the change of government, and became Act No. 97 respecting the reforms and additions to the Labour Code. It does not appear from the information available that there has been any consultation with employers' and workers' organisations on this matter.
528. As regards consultation on economic and social affairs, the complaint also refers to alleged discrimination against COSEP as a higher level representative employers' organisation. According to the complaint, the Government did not consult COSEP, but its affiliated organisations or members of the latter in setting up an institutional advisory committee or as regards participation in national tripartite consultations for the agricultural and stockraising sector and in the advisory committee on industry. On the few occasions when COSEP was invited, it was given so little advance notice that it was practically impossible for it to participate. On the other hand, according to the replies from the Government to the Committee on Freedom of Association and the statements made to the Commission by the previous authorities of the Ministry of Labour or the leaders of Sandinista trade union organisations, COSEP had been invited to participate in several bodies but had declined to participate because of its strong opposition to the Government.
529. The Ministry of Labour pointed out to the Commission that COSEP had not been invited to participate in the tripartite discussions during the Sandinista period. The files in which the respective invitations might be located seem to have disappeared from the Ministry.
530. In its conclusions on such a controversial matter, the Commission cannot but take account of the fact that although the complainants before the Committee on Freedom of Association had referred on several occasions to the lack of consultation with COSEP, which even led the Committee to request detailed information on this matter from the Government, the latter had refrained from providing any evidence of having invited this organisation and did not refute the allegations concerning the tardy nature of the invitations which prevented COSEP from participating in the respective meetings. The information gathered appears to suggest that in the light of the attitude publicly taken by COSEP with regard to the Sandinista Government, the latter had preferred to deal with matters at a sectoral level with the chambers or some of their members, and in this way bypass the employers' central organisation.
531. The Committee must therefore conclude that there has been discrimination in this case against COSEP as a representative employers' organisation which has affected its exercise of the rights established in Article 3 of Convention No. 87.
Tripartite consultations in respect of international labour standards
532. The complaint made under article 26 of the Constitution contains an allegation concerning the lack of participation of COSEP within the framework of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). This matter was also examined by the Committee on Freedom of Association on several occasions and more generally by the Committee of Experts which, on three occasions, requested the Government to provide information on the establishment of a tripartite committee and the practical application of the Convention without obtaining further satisfactory information regarding its implementation, and which does not seem to have been provided by the organisations which were consulted either.
533. The Government, in its replies to the Committee, referred successively to the difficulties resulting from the large number of organisations whose relations were often antagonistic for political reasons, the possible inviability of a national advisory body, the refusal of COSEP to participate when it was invited, etc. For its part, COSEP referred to the tardy nature of the invitation, which prevented it from participating, and to the fact that it had not received either the questionnaires on standards being prepared by the ILO or copies of the reports on the application of Conventions sent by the Government to the ILO.
534. The Commission observes that the Convention requires that countries which have ratified it undertake to establish procedures which ensure effective consultations with respect to ILO standards and that representatives of the representative workers' and employers' organisations should participate in such procedures. The Convention and its accompanying Recommendation are flexible as regards methods of application, and consultations can be carried out through various bodies or even by means of written communication. But the representative organisations must be consulted on the nature and form of the procedures. Consultations on standards must be held at appropriate intervals fixed by common agreement and at least once a year. The obligatory subjects for consultation are: the items included on the agenda of the Conference; the submission of Conventions and Recommendations adopted by the Conference to the competent authorities; the re-examination of unratified Conventions and Recommendations; questions arising out of reports on ratified Conventions; and the proposals for denunciation of ratified Conventions.
535. In the light of these various provisions and the information available, it appears that most of the Convention has not been observed. This Convention was ratified by Nicaragua in 1981 and except for certain sporadic meetings in recent years which examined some subjects related to ILO standards (with the above-mentioned difficulties regarding COSEP) and the presumed dispatch of questionnaires on Conventions and Recommendations in the course of preparation to employers' and workers' central organisations (and which for its part is denied by COSEP) does not seem to have been applied in any other way. Thus, the Committee must conclude that neither law nor practice conform to the provisions of Convention No. 144.
CHAPTER 14
RECOMMENDATIONS
536. In accordance with the provisions of article 28 of the Constitution, the Commission will proceed to make its recommendations on the measures which should be adopted in the light of the conclusions and the time within which they should be implemented.
537. In preparing these recommendations, the Commission is fully aware of the political, economic and social context of the country. Nicaragua recently had a Government with very different ideological views from those of the present Government. The Nicaraguan people has suffered from a fratricidal struggle and exceptional circumstances which have wrought havoc. Measures have been taken and acts committed which have had profound consequences, caused human tragedies and deepened animosities. The economic situation is tragic and the struggle for land continues. Society is polarised and the situation is one of confrontation.
538. The recommendations will be specific, within the subject-matter of the complaints and allegations, as required by the Commission's mandate. But the recommendations are also directed towards a change of attitude by the parties concerned. The Commission was impressed not only by the high degree of conflict in Nicaraguan society, motivated to a large extent by economic difficulties and profound inequalities, but also by the apparently extreme and stark attitudes constantly adopted by various important sectors. The fight against underdevelopment and poverty is certainly the main objective of the Government and all sectors. This struggle cannot be carried out without a change of attitude and a greater degree of objectivity and compromise. The objective is not to dominate but to establish equilibrium based on a full respect of human rights, in the struggle against the serious economic and social problems affecting the country.
539. The measures recommended by the Commission within the terms of its mandate are directed to two key aspects of all modern society: civil liberties and the rights of employers' and workers' organisations. Without civil liberties trade union rights are a dead letter or non-existent. But the respect of civil liberties has a more general dimension in so far as such liberties affect the existence, activities and development of an entire community. For their part, the establishment and operation of occupational organisations are a central part of the structure of this society in which the representation of sectoral interests is one of the most important ways of guaranteeing a maximum level of balance between economic and social matters.
540. The specific measures recommended by the Commission can be summarised as follows:
541. Civil rights: It is extremely important for the Government and the National Assembly to continue in their efforts to reform legislation with a view to increasing the security of persons and strengthening respect for judicial safeguards, in particular by the amendment and updating of the Act respecting the functions of the police, the Police Code and the Code of Criminal Procedure. In turn, any possible legislation on social communications should guarantee freedom of opinion and expression, and in particular, freedom to hold opinions without interference, to seek, receive and impart information and ideas through any media and regardless of frontiers, in accordance with the terms of the ILO resolution respecting trade union rights and their relation to civil liberties.
542. Expropriations: The Commission recommends that any appeal which may have been made by COSEP officials to the National Review Committee in accordance with Legislative Decree No. 11-90 respecting the review of confiscations should be resolved as soon as possible, with account being taken of the above-mentioned conclusions.
543. Trade union legislation: The Commission firmly supports any request for technical co-operation from the Government to the ILO to enable it to undertake a reform of the Labour Code and the Regulation respecting Trade Union Associations, with a view to their updating, and with account being taken of the standards of the Organisation and of the need to bring legislative provisions into line with the Conventions ratified by Nicaragua.
544. Specifically, the revision of legislation and its application both in the private and public sectors should include the following measures concerning the problems raised in this case:
(1) Recognition of the right of association of employers, workers, state servants (including public officials), independent workers and persons employed in family workshops. This recognition should also be included at an early date in the Constitution for employers, in line with other categories of workers.
(2) Recognition of the right of employers and workers to set up organisations of their own choosing, without previous authorisation. This provision established by Convention No. 87 implies that trade union plurality should always be a possibility in legislation and practice, with employers and workers being left to make their own decisions in this respect. It also implies the right to secure the registration of an organisation without the formalities imposed by legislation or by the authorities amounting to a requirement of prior authorisation. The authorities should abstain from any acts of coercion or favouritism concerning the establishment of organisations, and avoid any discrimination based on political or ideological grounds.
(3) Recognising the right of employers' and workers' organisations to organise their internal life, activities and programmes, the authorities should abstain from any discrimination and intervention which may limit this right or impede its legal exercise. In this connection, the Commission would like to refer more specifically to the political activities of organisations and strikes.
(a) Legislation should not contain a general prohibition of the political activities of organisations. Such organisations should have the power to express freely their opinions on the economic and social policy of the Government as regards the interests of the sectors which they represent. It is the responsibility of the judicial authorities to examine and decide on any instances of abuse which may be committed in this respect. The limits have been fixed for trade unions by the 1952 resolution concerning the independence of the trade union movement which establishes that relations with the political parties or political action should not be of such a nature as to compromise the continuance of the trade union movement or its social and economic functions, whatever political changes may occur in a country. The Commission believes that these principles could also be used as a basis for relations and political action by employers' organisations.
(b) As regards strikes, apart from being recognised as a workers' right under present legislation, a re-examination should be carried out of the limits imposed by such legislation as pointed out by the Committee on Experts on the Application of Conventions and Recommendations, and by this Commission of Inquiry in the conclusions set out above. Furthermore, the procedure regarding the settlement of collective disputes should be amended with a view to simplifying it and making it more effective by avoiding all complex and excessive legislation which in practice unduly restricts the right to strike and thereby leads to continuous infringements of the law.
(4) Promotion of collective bargaining, with the authorities abstaining from any intervention or removing any obstacle which could restrict the free conclusion of collective agreements, including at different levels, in accordance with the provisions of Convention No. 98 and with account being taken of the Collective Bargaining Convention, 1981 (No. 154) as well as the conclusions made by this Commission in the corresponding chapter.
545. Consultation in respect of international labour standards: The Commission considers that the Government should establish and apply as soon as possible procedures ensuring effective consultation in this domain, in accordance with the provisions of Convention No. 144. Before establishing such procedures, the Government should consult the representative workers' and employers' organisations as required by the Convention itself. In the same way, the Commission recommends to the Government that account be taken for this purpose of the information and comments contained in the 1982 General Survey of the Committee of Experts on the Application of Conventions and Recommendations on Tripartite Consultations (International Labour Standards), as regards the various forms used and their possible adaptation to national circumstances.
546. Lastly, article 28 of the Constitution of the ILO stipulates that the Commission should indicate the time within which its recommended measures should be adopted. The Commission believes that it would be extremely difficult for it to establish a precise period in this respect since the recommendations concern different measures and at all events most aspects would require intensive legislative work. However, given the importance of the matters raised, most of which concern civil liberties and trade union rights, the Commission considers that the Government should indicate, from 1991, in its reports made under article 22 of the Constitution on the application of Conventions Nos. 87, 98 and 144 the measures which have been taken, both in law and practice, to give effect to its recommendations. In this way the Committee of Experts on the Application of Conventions and Recommendations should be able at its meeting in March 1992 to review the progress achieved and subsequently decide, on this basis, the periodicity with which the Government should continue including information in its reports on the application of these Recommendations.
Geneva, 23 November 1990 (Signed) José Sette Camara,
Chairman.
José Vida Soria.
René R. Mirolo.
In submitting this report, the members of the Commission wish to express their profound thanks to Mr. Michel Hansenne, Director-General of the ILO, for his confidence in appointing them to carry out this task and hope that the contents of this report will meet his expectations and be found to have achieved the objectives set.
The Commission would like to thank Mr. Th. Sidibé, Director of the International Labour Standards Department and Mr. Bernard Gernigon, for their constant attention to the task in question; the secretariat of the Commission Mr. Christian Ramos Veloz and Mrs. Luján de la Peña for their effective contribution which greatly facilitated the work carried out and for their skilful negotiation of problems which arose and Mr. Luis Zamudio for his collaboration in arranging the meetings in Managua and in smoothing out difficulties during the work of the Commission. The Commission also thanks Mrs. Carmen Bernhard for her collaboration in this respect.
Finally, the Commission expresses its gratitude for the special and extremely valuable contribution of Mr. Geraldo von Potobsky who, with his well-known grasp of the subject, generously offered observations and suggestions based on his long and fruitful work within the ILO. We thank him for his magnificent contribution and for his technical support complemented by a human warmth which allowed his colleagues to work as a team in a cordial climate and achieve, as is generally the case in such circumstances, the best results.
J.S.C.
R.R.M.
J.V.S.
ANNEX
Procedure of the Commission for the hearing of representatives of the parties and of international organisations
(1) The Commission will hear at all times in private sittings the representatives of the parties, on the one hand, and, on the other, the representatives of the ICFTU, WCL and IOE - organisations having consultative status with the ILO - which have submitted complaints to the Committee on Freedom of Association regarding this matter. The information and evidence presented to the Commission therein will be treated as fully confidential by such representatives.
(2) The Government of Nicaragua will be invited to appoint a representative to act on its behalf before the Commission. This representative, as well as the representatives of the complainants under article 26 of the Constitution, or their respective substitutes, will be expected to be present throughout the hearings and will be responsible for the general presentation of their case.
(3) The purpose of the Commission is to verify the information necessary to ascertain the matters submitted to it for investigation by the Governing Body of the International Labour Office. It is not, however, competent to deal with issues of a purely political nature and bearing no relation to the matters it has to examine, and it will therefore only accept information and statements referring to the exercise of trade union rights and the standards laid down in Convention No. 144. The Commission will not authorise statements on matters outside its terms of reference.
(4) The Commission or any member of the Commission may question the representatives of the parties or of the organisations referred to in paragraph (1) at any stage in the hearing.
(5) The Commission may authorise the representatives of the parties to question one another and to put questions to the representatives of the ICFTU, WCL and IOE.
ANNEX
Provisions of Conventions Nos. 87, 98 and 144
FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO ORGANISE CONVENTION, 1948 (NO. 87)
Article 2
Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisations concerned, to join organisations of their own choosing without previous authorisation.
Article 3
1. Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.
2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.
Article 4
Workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority.
Article 5
Workers' and employers' organisations shall have the right to establish and join federations and confederations and any such organisation, federation or confederation shall have the right to affiliate with international organisations of workers and employers.
Article 6
The provisions of Articles 2, 3 and 4 hereof apply to federations and confederations of workers' and employers' organisations.
Article 7
The acquisition of legal personality by workers' and employers' organisations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 hereof.
Article 8
1. In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.
2. The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.
Article 9
1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.
2. In accordance with the principle set forth in paragraph 8 of article 19 of the Constitution of the International Labour Organisation the ratification of this Convention by any Member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by this Convention.
Article 10
In this Convention the term "organisation" means any organisation of workers or of employers for furthering and defending the interests of workers or of employers.
Article 11
Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.
RIGHT TO ORGANISE AND COLLECTIVE BARGAINING CONVENTION, 1949 (No. 98)
Article 1
1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
2. Such protection shall apply more particularly in respect of acts calculated to -
(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;
(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.
Article 2
1. Workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration.
2. In particular, acts which are designed to promote the establishment of workers' organisations under the domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations, shall be deemed to constitute acts of interference within the meaning of this Article.
Article 3
Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organise as defined in the preceding Articles.
Article 4
Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.
Article 5
1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.
2. In accordance with the principle set forth in paragraph 8 of article 19 of the Constitution of the International Labour Organisation the ratification of this Convention by any Member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by this Convention.
Article 6
This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way.
THE TRIPARTITE CONSULTATION (INTERNATIONAL LABOUR STANDARDS) CONVENTION, 1976 (No. 144)
Article 1
In this Convention the term "representative organisations" means the most representative organisations of employers and workers enjoying the right of freedom of association.
Article 2
1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to operate procedures which ensure effective consultations, with respect to the matters concerning the activities of the International Labour Organisation set out in Article 5, paragraph 1, below, between representatives of the government, of employers and of workers.
2. The nature and form of the procedures provided for in paragraph 1 of this Article shall be determined in each country in accordance with national practice, after consultation with the representative organisations, where such organisations exist and such procedures have not yet been established.
Article 3
1. The representatives of employers and workers for the purposes of the procedures provided for in this Convention shall be freely chosen by their representative organisations, where such organisations exist.
2. Employers and workers shall be represented on an equal footing on any bodies through which consultations are undertaken.
Article 4
1. The competent authority shall assume responsibility for the administrative support of the procedures provided for in this Convention.
2. Appropriate arrangements shall be made between the competent authority and the representative organisations, where such organisations exist, for the financing of any necessary training of participants in these procedures.
Article 5
1. The purpose of the procedures provided for in this Convention shall be consultations on -
(a) government replies to questionnaires concerning items on the agenda of the International Labour Conference and government comments on proposed texts to be discussed by the Conference;
(b) the proposals to be made to the competent authority or authorities in connection with the submission of Conventions and Recommendations pursuant to article 19 of the Constitution of the International Labour Organisation;
(c) the re-examination at appropriate intervals of unratified Conventions and of Recommendations to which effect has not yet been given, to consider what measures might be taken to promote their implementation and ratification as appropriate;
(d) questions arising out of reports to be made to the International Labour Office under article 22 of the Constitution of the International Labour Organisation;
(e) proposals for the denunciation of ratified Conventions.
2. In order to ensure adequate consideration of the matters referred to in paragraph 1 of this Article, consultations shall be undertaken at appropriate intervals fixed by agreement, but at least once a year.
Article 6
When this is considered appropriate after consultation with the representative organisations, where such organisations exist, the competent authority shall issue an annual report on the working of the procedures provided for in this Convention.
Endnote 1
See under "Terms of reference of the Commission".
Endnote 2
See Chapter 7 for the amendments introduced subsequently.
Endnote 3
216th Report of the Committee on Freedom of Association, Case No. 1084, para. 39.
Endnote 4
Report of the representative of the Director-General submitted to the Committee on Freedom of Association.
Endnote 5
ibid., 255th Report, para. 68(h).
Endnote 6
ibid., 258th Report, para. 55(f).
Endnote 7
ibid., 261st Report.
Endnote 8
See in this connection the report of the Commission of Inquiry instituted under article 26 of the Constitution of the ILO in the case of Poland, Official Bulletin, Special Supplement, Vol. LXVII, 1984, Series B, para. 44.
Endnote 9
See the report of the Commission in the Ghana-Portugal case, Official Bulletin, Vol. XLV, No. 2, Supplement II, Apr. 1962, para. 706.
Endnote 10
Section 4 of Act No. 102 cancelling out the repeal clauses in Act No. 97 does not appear in the text published in La Gaceta (Offical Gazette) of 23 May 1990; consequently, according to the Minister of Labour, an erratum will be published.
Endnote 11
Committee on Freedom of Association, 261st Report, para. 48(k).
Endnote 12
ibid., 269th Report, para. 20.
Endnote 13
ibid., para. 24.
Endnote 14
ibid., 269th Report, para. 32.
Endnote 15
The Commission points out the discrepancy regarding the dates of detention indicated in the complaint and in the Government's reply.
Endnote 16
Committee on Freedom of Association, 267th Report, para. 36(e).
Endnote 17
ibid., 261st Report, para. 48(c).
Endnote 18
ibid., 267th Report, para. 12.
Endnote 19
ibid., 269th Report, para. 20.
Endnote 20
ibid., 261st Report, paras. 32 and 33.
Endnote 21
ibid., 264th Report, para. 11.
Endnote 22
ibid., para. 27.
Endnote 23
ibid., 267th Report, paras. 14 and 15.
Endnote 24
ibid., paras. 17 and 18.
Endnote 25
ibid., para. 26.
Endnote 26
ibid., 264th Report, paras. 8, 9, 12 and 26.
Endnote 27
ibid., 267th Report, paras. 16 and 27.
Endnote 28
ibid., para. 31.
Endnote 29
ibid., 269th Report, para. 24.
Endnote 30
idem.
Endnote 31
Committee on Freedom of Association, 261st Report, para. 28.
Endnote 32
ibid., 269th Report, paras. 8, 9, 10, 11 and 14.
Endnote 33
ibid., para. 32.
Endnote 34
A block of land is equivalent 7,056 m2.
Endnote 35
Committee on Freedom of Association, 264th Report, para. 20.
Endnote 36
ibid., 267th Report, para. 23.
Endnote 37
ibid., paras. 8 and 9.
Endnote 38
ibid., 269th Report, paras. 19 and 21.
Endnote 39
ibid,, 264th Report, paras. 21 and 22.
Endnote 40
ibid., 267th Report, para. 9.
Endnote 41
ibid., para. 21.
Endnote 42
ibid,, para. 28.
Endnote 43
ibid., para. 36(c).
Endnote 44
ibid., 269th Report, paras. 12 and 13.
Endnote 45
ibid., para. 17.
Endnote 46
ibid., para. 19.
Endnote 47
ibid., paras. 14 and 15.
Endnote 48
Committee on Freedom of Association, 261st Report, para. 48(l).
Endnote 49
ibid., 264th Report, para. 29.
Endnote 50
ibid., 267th Report, para. 10.
Endnote 51
ibid., paras. 22 and 28.
Endnote 52
ibid., 269th Report, para. 16.
Endnote 53
Committee on Freedom of Association, 267th Report, para. 36(d).
Endnote 54
ibid., 261st Report, para. 48(i).
Endnote 55
See, in particular, International Labour Conference, 69th Session, 1983: Freedom of association and collective bargaining: General Survey by the Committee of Experts on the Application of Conventions and Recommendations (Geneva, ILO, 1983), paras. 136-138.
Endnote 56
Committee on Freedom of Association, 211th Report, Cases Nos. 1035 and 1050, para. 115.
Endnote 57
Committee of Experts, op. cit., para. 198; Committee on Freedom of Association, 162nd Report, Cases Nos. 786, 781, 806 and 814, para. 33; 201st Report, Case No. 842, para. 40.
Endnote 58
International Labour Conference, 31st Session, 1948, Record of Proceedings, p. 476.
Endnote 59
Committee on Freedom of Association, 54th Report, Case No. 179, para. 157.
Endnote 60
ibid., 106th Report, Case No. 541, paras. 12-16 and 19.
Endnote 61
ibid., for example 211th Report, Case No. 1052, para. 155; 234th Report, Case No. 1163, para. 87.
Endnote 62
Committee of Experts, op. cit., para. 312.