Informe definitivo - Informe núm. 137, 1973

1. 50. The Committee first examined this case at its May 1971 session (see paragraphs 88-99 of the Committee's 124th Report, which was approved by the Governing Body at its 183rd Session in May-June 1971) and again at its November 1972 session (see paragraphs 204-221 of the 133rd Report, which was approved by the Governing Body at its 188th Session in November 1972).
2. 51. Nicaragua has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 52. This case concerns allegations that, as a consequence of a wave of repression and persecution directed against trade union organisations, two leaders of the Autonomous Trade Union Movement of Nicaragua (MOSAN), an affiliate member of the WCL, were arrested and imprisoned, and further allegations according to which the Ministry of Labour took sides in a dispute between the workers and the firm of "El Porvenir", in which the workers were subjected to harsh military discipline.
   • Allegations Relating to Measures Taken Against Two Trade Union Leaders
2. 53. At its May 1971 session, the Committee recommended the Governing Body to request further information from the Government concerning its statement that the action taken against the two MOSAN leaders was motivated by their having been caught sticking up subversive posters.
3. 54. In a communication of 10 February 1972, the Government supplied no further information and confined itself to repeating the terms of the reply already examined by the Committee at its May 1971 session. In a communication dated 4 May 1972, the Government stated that in its opinion its was for the State of Nicaragua alone, in the exercise of its sovereignty, to decide whether or not the posters were of a subversive nature. In a communication dated 20 May 1972 the Government repeated this viewpoint. None of these communications shed any light on the nature of the posters in question, as had been requested by the Committee.
4. 55. At its November 1972 Session, the Committee considered it desirable to recall that, in accordance with Article 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Nicaragua, the law of the land may not be such as to impair, nor may it be so applied as to impair, the exercise of trade union rights. The Committee pointed out that the Government's failure to furnish a reply could leave room for doubt as to the Government's observance of this provision. The Committee further recalled that, in accordance with the procedure laid down for the protection of freedom of association, the question as to whether a sentence related to a criminal offence or to the exercise of trade union rights could not be resolved unilaterally by the government concerned, but was a matter for the Committee to decide after examining all available information. The Committee, consequently, recommended the Governing Body once more to request the Government to furnish as soon as possible information concerning the subject matter of the incriminating posters.
5. 56. In a communication dated 22 December 1972, the Government deplores the fact that attention should still be focused on an event which occurred more than two years ago, when the persons involved in certain disturbances have been released and enjoy full freedom. The arrest of Nicaraguan citizens who were committing unlawful acts has nothing whatsoever to do with their being or not being trade unionists. The Government states that in accordance with the law normal police action was taken. The Government also rejects the allegation that a wave of repression and persecution was directed against trade union organisations.
   • Allegations Relating to the Situation in the Firm of "El Porvenir"
6. 57. At its May 1971 session the Committee also recommended the Governing Body to request the Government to furnish its observations on this aspect of the case.
7. 58. In its communication dated 4 May 1972, the Government gave an assurance that - contrary to what was alleged in the complaint - the Ministry of Labour had at no time taken sides and that relations between employers and workers in the firm of "El Porvenir" were peaceful and harmonious. In its communication of 20 May 1972, the Government reaffirmed what it had stated in its previous communication. It added, nevertheless, that the Ministry of Labour had concerned itself solely with the enforcement of the provisions of the Nicaraguan Labour Code, particularly sections 302 et seq, which govern the procedure to be followed in the event of collective disputes of an economic or social nature between employers and workers, and sections 222 et seq, which lay down rules with regard to strikes.
8. 59. These sections define a strike as being lawful when it has been authorised by the competent conciliation board or labour magistrate, according to the circumstances. A strike is authorised only when all the procedures prescribed in the Code in the event of disputes have been followed: (1) submission of a statement of demands to the labour inspector; (2) report by the labour inspector to the Ministry of Labour, which appoints a judge to deal with the strike and whose task it is to set up a conciliation board; (3) appearance of the parties involved before the conciliation board (all strike action being prohibited if the labour side fails to appear); (4) voting on the proposals of the management by the workers, who must accept or reject these proposals by a 60 per cent majority vote (5) a fresh vote, the same majority being required, to decide whether to pursue negotiations or to take strike action. When the prescribed majority is reached, the board can authorise the strike, though its decision may be appealed against before the higher labour court (the appeal has suspensive effect and the court must give a ruling within 48 hours). When 30 days have elapsed after a strike has been authorised, the dispute is submitted to compulsory arbitration and the arbitration award is binding on both parties for a period of at least six months. Any strike declared without authorisation is considered unlawful and legally inexistent, automatically entailing the termination of the strikers' contract of employment, without prejudice to the imposing of other penalties.
9. 60. In view of the fact that the Government had not indicated the circumstances in which the Ministry of Labour intervened to ensure the enforcement of the provisions governing collective disputes and to settle the strike in question, the Committee, at its November 1972 session, considered it necessary to point out:
   • (a) that allegations with regard to the right to strike were not outside its competence in so far as they concerned the exercise of trade union rights;
   • (b) that it had already made it clear in the past, in referring to its recommendation that restrictions on the right to strike were acceptable if accompanied by adequate conciliation and arbitration procedures, that the recommendation in question referred not to the absolute prohibition of the right to strike but to the restriction of that right in essential services or in the public service, in relation to which the Committee had established that adequate guarantees should be provided to safeguard the workers' interests;
   • (c) that, while taking note of the information contained in the Government's observations concerning the provisions governing the settlement of collective disputes, the Committee noted that the provisions in question restricted the right to strike not only in essential services but for all workers. Being accordingly of the opinion that the observations made in the previous subparagraph applied to the present case, the Committee considered that the Government should take account of them and recommended the Governing Body to draw the attention of the Government to the importance attached by the Governing Body to these considerations.
10. 61. Since the Government had not supplied more detailed information as to which provisions of the Labour Code the Ministry of Labour had applied in the firm of "El Porvenir", the Committee also recommended the Governing Body to request the Government to supply this information as soon as possible.
11. 62. In its communication of 22 December 1972, the Government rejects the allegation concerning military discipline of the workers and denies that the authorities took sides in dealing with the dispute in the firm of "El Porvenir". According to the Government the provisions of the Labour Code applied were those governing the procedure to be followed in the event of collective disputes of an economic or social nature and strikes. The Government points out that where concerted stoppages of work take place without the requirements of the law being fulfilled, section 323 of the Code is applied.
12. 63. Section 323 provides that if a strike is commenced without the authorisation referred to in the Code (see paragraph 59 above), the General Labour Inspectorate or conciliation board will declare it unlawful and legally inexistent, with all the legal consequences resulting from such declaration.

B. B. The Committee's conclusions

1. 64. The Committee observes that in its latest communication the Government, despite the repeated requests made to it, still refrains from sending the specific information requested in connection with the allegations concerning measures taken against two trade union leaders. As regards the allegations concerning the dispute in the firm of "El Porvenir", it would appear from the Government's communication that since the workers had not fulfilled the necessary conditions to be able to take lawful strike action, they were refused the authorisation for which provision is made by law. Nevertheless the Government does not describe the exact circumstances that gave rise to this refusal or the specific legislative provisions infringed by the workers.