Informe provisional - Informe núm. 324, Marzo 2001

Allegations: Employer's interference in internal affairs of trade union; wrongful dismissal of its officials and intimidation; refusal to bargain in good faith with the union

• Allegations: Employer's interference in internal affairs of trade union; wrongful dismissal of its officials and intimidation; refusal to bargain in good faith with the union
  717. 717 The complaint in Case No. 2092 is contained in a communication from the "José Benito Escobar" Trade Union Confederation of Workers (CST), which was received on 28 July 2000. The CST sent additional information in a communication dated 11 August 2000. The complaint in Case No. 2101 is contained in a communication from the International Textile, Garment and Leather Workers' Federation (ITGLWF) dated 8 September 2000.
  718. 718 The Government transmitted its reply in a communication dated 10 October 2000.
  719. 719 Nicaragua has ratified 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. The complainants' allegations

1. 720. In their communications of 28 July, 11 August and 8 September 2000, the "José Benito Escobar" Trade Union Confederation of Workers (CST) and the International Textile, Garment and Leather Workers' Federation (ITGLWF) stated that in 1996, the workers of the "Las Mercedes" export processing zones corporation began initiatives to form enterprise-level trade unions. According to them, on 22 January 1998, 72 employees of CHENTEX Garments S.A. held a general meeting with a view to establishing a trade union affiliated to the CST and appointing its executive committee. On 24 January, 21 workers at the enterprise were dismissed, including all members of the recently elected executive committee. On 26 January all the company's workers (800 at the time) came out on strike to protest the dismissal of their colleagues, who were reinstated by the company on the same day. On 13 February, the trade union obtained legal personality and was entered on the appropriate register (although not within the period of ten days stipulated in section 213 of the Labour Code in force). Nevertheless, the same month, the company renewed its anti-union campaign and again dismissed the executive committee members as well as other company employees. On 16 February, these actions led to another strike which was immediately resolved in the same way as before.
2. 721. According to the complainant organization, two trade unions operated in the enterprise: the CHENTEX company trade union affiliated to the CST; and an autonomous union affiliated to the Nicaraguan Central Workers' Confederation (CNT), favoured by the enterprise. Indeed, one CST-affiliated union official stated that the company management had offered him money to change unions (to the CNT-affiliated union) and had dismissed him when he refused. Gradually, hundreds of workers who supported the CST-affiliated union were forced to leave it on threats of dismissal. Recent recruits were asked to join the CNT-affiliated union, and one CST-affiliated union official was forced to resign after being blackmailed. In addition, workers employed in the export processing zone suffered attacks, including physical assaults, and the Ministry of Labour interfered in the union's activities through spies and strike-breakers. The CNT-affiliated union distributed pamphlets calling into question the integrity of the other union's officials, and despite the latter's complaints the authorities did nothing. Finally, according to a former CHENTEX employee, the Deputy Minister of Labour told the press (in May 1999) that Taiwanese investors had threatened to close down their operations in the export processing zone if the Ministry of Labour came down in favour of the CST-affiliated union.
3. 722. In this context, the company concluded a collective agreement with both unions (in August 1998), by which it committed itself in an "instrument of accord" to review wages within a period of less than one year and to review transport and food subsidies in the light of available resources. Despite this, the head of the company on 23 June 1999 again refused to enter into talks with the CST-affiliated union, although it had undertaken to do so. On 3 August, the union therefore presented a list of demands (signed by 824 workers) to the Ministry of Labour which passed it on to the company and called the parties together on a number of occasions between 27 January and 20 March 2000. Although CHENTEX did not come to the talks, it did sign an agreement in the meantime with the autonomous CNT-affiliated union under which it agreed to review the wages of all the workers; the Conciliation Department of the Ministry of Labour rejected an application from the CST-affiliated union to declare the company in default, and indeed declared that the company had complied with the agreement, since it had offered a 10 per cent increase to 15 per cent of the workforce with effect from 1 March 2000. Under these circumstances, the CST-affiliated union on 14 April challenged the company's account of the wage increase on the grounds that it had been agreed exclusively with the CNT-affiliated union and discriminated against members of the CST-affiliated union. It then initiated the appropriate proceedings with the Ministry of Labour (under section 385 of the Labour Code) to begin strike action, but it was forced to begin again when its application was disregarded (still without success).
4. 723. On 26 April the CST-affiliated union called a strike in protest at the refusal by CHENTEX to bargain in good faith. Although all the workers were at their posts when labour inspectors entered the plant to assess the situation, the Ministry of Labour informed the union's leaders on 2 May that the company was seeking the termination of their contracts of employment on the grounds of failure to perform their duties. Following a protest strike on the same day (in which 800 workers took part, not 32, as claimed by the Government), the company on 26 May hired a group of youths from a problem neighbourhood to cause disruption. Finally, on 27 May the Ministry of Labour authorized the dismissal of nine trade union officials who challenged the ruling in an appeal and amparo proceedings; a final ruling is still awaited. In this context, the company on 7 June 2000 asked the labour tribunal to dissolve the CST-affiliated union on the grounds that it had fewer members than the number required by law (following successive reviews, only one official and two ordinary members remained at the enterprise). On 29 June the company initiated criminal proceedings against ten union officials for offences punishable by up to seven years' imprisonment without any possibility of commutation. On 30 June the members of the CHENTEX union declared that they would not hold elections until these cases were resolved.

B. The Government's reply

1. 724. In its communication of 10 October 2000, the Government states that on 22 July 1999, the administration of CHENTEX Garments S.A. petitioned the General Labour Inspectorate to apply the appropriate legal procedures to declare illegal the strike that had been called that day by company workers. It stated that some 60 per cent of the workers supported the strike for reasons of solidarity with workers dismissed from another textile company located in the same zone, because of the alleged failure to comply with the collective agreement and in order to force the company to allow negotiations in the enterprise with the participation of a trade union representative.
2. 725. Also on 22 July, following an on-site inspection, the enterprise was found to be paralysed and accordingly, on 23 July, the Labour Inspectorate ruled that the strike called by the union's executive committee was illegal since the latter had not complied with sections 244, 245, 248 and 249 of the Labour Code. According to these provisions, for a strike to be called, the relevant conciliation procedure with the Ministry of Labour must have been exhausted, the strike must be agreed at a general meeting of the workers and conducted in a peaceful manner by the majority of workers inside or outside the enterprise or establishment. Under the terms of the Code, striking workers were told that they would have to resume work within 48 hours of the ruling, and that the employer would terminate the employment contracts of any workers who continued to strike illegally.
3. 726. On 9 August, the company again petitioned the Labour Inspectorate to declare illegal the strike of 20 workers of the 37 who worked in the garment pressing area, since they, too, had failed to follow the procedure set out in section 244 of the Labour Code. Workers were on strike in protest at the termination of the employment contracts of Juan Baltodano and Juan Merenco. Following an on-site inspection, labour inspectors informed the workers that the employer could rescind a contract of employment under the terms of section 45 of the Labour Code (for an indeterminate period and without giving any reason), and that they could not withdraw their labour without first exhausting the procedure established under section 244 of the Labour Code. For this reason, the stoppage was not valid; the workers were told that any employee whose contract of employment was revoked could appeal to a competent judge for a ruling as to whether or not there were grounds for reinstatement, and it was not in the power of the Ministry of Labour to order a worker's reinstatement. On 3 August 1999, the General Labour Inspectorate ruled that the strike directed by the executive committee of the CHENTEX union was illegal, and the striking workers were informed that they would have to resume work within 48 hours or their contracts of employment would be terminated by the employer in accordance with sections 244, 245, 248 and 249 of the Labour Code.
4. 727. On 26 April 2000, the CST-affiliated union and the other trade union involved discussed the wage claims with the company administration but no agreement was reached. On 27 April, the members of the union's executive committee left their workplaces for one hour and were told by the company that they had to exhaust the available statutory procedures. On 28 April, the company administration applied for the cancellation of the employment contracts of Gladis Manzanares, Santiago Villalobos, Félix Rosales García, Harlling Bobadilla Treminio, Blanca Torrez Seas, Roberto Manzanares, Maura Parson, Zeneyda Torres and Félix Sanches. They were summoned to a hearing but did not appear, and instead called on the other workers to stop work in protest at the notice. On 2 May the strikers resorted to damaging property, intimidation and violence. On 3 May they appeared before the local labour inspectorate (agricultural and industrial department). They did not deny the claims made by the company administration, which supported its demands for dismissal with written evidence and witness statements. On 9 May they were reinstated in their posts, but the Labour Inspectorate authorized the cancellation of the contracts of employment of the nine workers. Notification was received on 26 May and the workers appealed. The Labour Inspectorate passed the case on to the Minister of Labour to allow him to appoint an ad hoc General Labour Inspector. The latter dismissed the appeal and upheld the original ruling for dismissal on the grounds that the employer had shown that there were grounds for dismissal. On 26 July the ad hoc General Labour Inspector was informed of the ruling handed down by the Constitutional Division (Region III Managua) of the Supreme Court regarding the amparo proceedings initiated by Gladis Manzanares Tercero, Santiago Villalobos and others in their capacity as workers of CHENTEX Garments S.A. On 7 August the Labour Inspectorate sent the Court the report which the latter had requested and the matter is currently still pending before the Constitutional Division of the Supreme Court.
5. 728. On 26 June the administration of CHENTEX asked the Labour Inspectorate to verify the current situation of the CST-affiliated union, given that a number of workers of the enterprise had allegedly resigned from it. It was found that of the 146 workers who had taken part in the most recent extraordinary general meeting, 33 had resigned from the company, 21 had been dismissed, three had put two signatures, two had written their names illegibly, 85 had left the union and two remained members. This clearly explains why the union is currently registered with the trade union associations directorate as "inactive", since in addition, 13 of the union officials who had formed the executive committee, only one female official remains active, the other 12 having been dismissed for contravening the terms of their contracts of employment and causing damage to the company (the company initiated legal proceedings against them on 29 June 2000 for breaches of trade freedom, freedom to work and freedom of association, extortion, rioting, incitement to violence and conspiracy).

C. The Committee's conclusions

1. 729. With regard to the allegation of wrongful dismissals for anti-union reasons, the Committee notes that, according to the complainants, a number of employees of the textile company CHENTEX Garments S.A. on 22 January 1998 joined forces to establish a company trade union affiliated to the "José Benito Escobar" Trade Union Confederation of Workers (CST) but that this initiative was restricted by a series of anti-union acts which began on 23 January with the dismissal without any apparent reason of 21 employees (including all the officers of the new union), which was followed by another dismissal of executive committee members, and ended in June 2000, when the company sought the dissolution of the union after the competent authority had found that only one officer and a few members remained in it. The Committee notes that, according to the complainants, the inadmissibility of the dismissals in question lies in the fact that they were associated with the establishment of the CST-affiliated union, were supposedly motivated by the strikes that had taken place, and reflected the wish of the company to liquidate the union, whose officers (except one) and many of whose members had been dismissed.
2. 730. The Committee notes the arguments put forward by the complainant organization to demonstrate the anti-union nature of the dismissals, and is bound to note that during the past two years, many measures were adopted against the officials and members of the CST-affiliated union, including criminal proceedings. For this reason, in order to be able to give an opinion in full knowledge of the facts, the Committee considers that it would be very helpful for it to have the ruling given by the main Constitutional Division of the Supreme Court of Justice on the dismissals that have been challenged. It also wishes to be informed of the ruling on the criminal proceedings initiated by the company against the ten trade union officials. The Committee therefore requests the Government to supply the text of these rulings as soon as they are handed down.
3. 731. With regard to the ruling that the strikes initiated by members of the CST-affiliated union were illegal, the Committee notes that, according to the Government, the ruling was based on sections 244, 245, 248 and 249 of the Labour Code. In this regard, the Committee notes that it does not consider legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called as an infringement of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, para. 500]. It would appear that, in this case, all the strikes called were declared illegal by the Labour Inspectorate, but the Committee must underscore that the dismissal of the trade union leaders took place before the union had obtained legal personality, that is to say, in a situation in which the exercise of trade union activities was denied. For this reason, these trade union leaders cannot be reproached for not having fulfilled the legal conditions for the strike. Taking into account all these elements, the Committee requests the Government to ensure that trade union rights can be freely exercised at CHENTEX Garments S.A. without the workers being subject to reprisals for their legitimate trade union activities.
4. 732. With regard to the allegations of trade union favouritism and refusal to bargain in good faith, the Committee notes, firstly, that within CHENTEX Garments S.A. two trade unions have been operating in parallel: the company union of CHENTEX (affiliated to the CST), and another union affiliated to the Nicaraguan Central Workers' Confederation (CNT). It also notes that the Government has not presented any observations on the statements made by the complainant organizations, in particular on the company's alleged indifference to appeals made by the CST (including by means of summonses from the Ministry of Labour) to comply with the collective agreement signed by both parties in August 1998. It also notes that the Government, despite the reluctance of the employer in this matter, finally declared that the employer had complied with an agreement which, according to the complainants, was concluded only with the CNT-affiliated union and discriminated against members of the CST-affiliated union. In the light of these facts, the Committee is bound to emphasize the importance of the principle that both employers and trade unions bargain in good faith and make every effort to reach an agreement [see Digest, op. cit., para. 815]. In accordance with this principle, the Committee reminds the Government that appropriate measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of the terms and conditions of employment by means of collective agreements [see Convention No. 98, Article 4].