Rapport intérimaire - Rapport No. 325, Juin 2001

1. 489. The complaint is contained in two communications dated 16 January and 6 March 2001 from the Health Workers’ Federation (FETSALUD). The Government replied in communications dated 8 March and 16 April 2001.
2. 490. Nicaragua has ratified 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 Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 491. In its communication dated 16 January 2001, the Health Workers’ Federation (FETSALUD) claims that the Government is conducting a campaign of repression and discrimination against the country’s trade union movement, and against the leadership of FETSALUD in particular.
2. 492. The Federation alleges that, on the spurious ground that they had refused to be transferred to the emergency zones established in the aftermath of Hurricane Mitch, a number of trade union officers (Oscar Léon Godoy, Elio Artola Navarrete, Roberto López Vargas, Harry Torrez Solís, José Dionisio Morales Castillo, Carlos Torrez Lacourt and Guillermo Porras Cortez), were deprived of their trade union immunity and dismissed (with Ministry of Labour approval) pursuant to two decisions, respectively dated 15 and 23 December 1998, by the Departmental Labour Inspectorate and the General Labour Inspectorate.
3. 493. The officers in question having instituted amparo proceedings against both decisions on grounds of violation of trade union rights, on 18 September 2000 the Supreme Court of Justice handed down a final ruling (No. 164) that the Government, via the Labour and Health Ministries, had committed serious violations of freedom of association and trade union rights. The Court consequently ordered that the complainants be reinstated under the same conditions of employment and with the same responsibilities as those held at the time of their dismissal, and that they be paid their wages in arrears and the corresponding benefits. It also underscored that there were to be no retaliatory measures.
4. 494. The Government rejected the above ruling on various grounds, all of which were declared inadmissible by the Supreme Court. In a decision dated 7 December 2000, the Office of the Procurator-General for Human Rights stated that the Minister of Health had infringed the officers’ human rights in systematically refusing to comply with the ruling. In view of the foregoing, on 22 December the Health Minister officially announced the Ministry’s recognition of the court order of reinstatement.
5. 495. Four days later, however, the Health Ministry’s Director of Human Resources informed the officers that they had been appointed to run hospitals in remote parts of the country, such as Karawala, Wiwilli, Nueva Guinea, Waslala and Siuna. The complainants regarded this as a measure of internal exile and geographical confinement of trade union officers, taken in retaliation for the judicial proceedings they had brought before the country’s highest judicial body.
6. 496. In a communication dated 6 March 2001, the complainant organization reports that on 28 February 2001 President Arnaldo Alemán issued an order via the written press withdrawing payroll check-off for public sector employees, thereby affecting deductions in favour of the unions, in violation of article 224 of the Labour Code.

B. The Government’s reply

1. 497. In a communication dated 8 March 2001, the Government declares that the Managua branch of the Departmental Labour Inspectorate approved the requests submitted by the directors of certain hospitals to terminate the contracts of employment of Dr. Gustavo Porras Cortez and other physicians. The Government adds that the individuals concerned appealed against the Inspectorate’s decision within the prescribed deadlines and in compliance with the mandatory procedures.
2. 498. Having specified that administrative action under the Labour Code is not subject to the strict provisions of ordinary law, the Government explains that the physicians in question were dismissed for refusing to comply with an order of transfer to areas devastated by Hurricane Mitch – on which ground the Labour Inspectorate challenged the appeal brought by the dismissed physicians, pursuant to articles 48(d) (reasons for termination of the employment relationship) and 231 (relative to trade union immunity, which stipulates that workers enjoying such immunity may not be dismissed without the Labour Ministry’s prior authorization, based on a legitimate reason provided for in law and duly substantiated) of the Labour Code, among other legal sources.
3. 499. The physicians concerned nevertheless initiated amparo proceedings before the Supreme Court of Justice, whose Constitutional Chamber declared their appeal receivable. The High Directorate of the Ministry of Justice thus invalidated the administrative decisions of the Managua branch of the Departmental Labour Inspectorate and the General Labour Inspectorate, which subsequently ordered that the physicians be reinstated in their posts under identical conditions of employment and that they be paid their wages in arrears along with the benefits to which they were entitled, in accordance with the ruling handed down by the Constitutional Chamber of the Supreme Court.
4. 500. The Ministry of Health for its part raised the question of a conflict of jurisdiction, claiming that competence to hear such cases lay with the labour courts. The Labour Court of Second Instance requested the General Labour Inspectorate to refrain from further action and decided to refer the matter to the Supreme Court for decision on which of the two bodies had jurisdiction – the General Labour Inspectorate or the Labour Court of Second Instance.
5. 501. The Government adds that Dr. Gustavo Porras Cortez is not exercising his duties as Secretary-General of FETSALUD, because the Federation ceased to operate after 13 November 2000 for failing to comply with the requirement to renew its executive committee within the time frame prescribed by the Regulations of Trade Union Associations.
6. 502. In a communication of 16 April 2001, the Government indicates that the legislation provides for payroll check-off only if the union’s member gives his or her express authorization to it.

C. The Committee’s conclusions

1. 503. The Committee notes that the allegations in this case concern anti-union dismissals and transfers, and denial of payroll check-off. As regards the first allegation, it takes note that a number of trade union officers (Oscar Léon Godoy, Elio Artola Navarrete, Roberto López Vargas, Harry Torrez Solís, José Dionisio Morales Castillo, Carlos Torrez Lacourt and Guillermo Porras Cortez) were deprived of their trade union immunity and dismissed in December 1998, pursuant to decisions by the Departmental Labour Inspectorate and the General Labour Inspectorate, for failing to comply with the order of transfer to areas devastated by Hurricane Mitch.
2. 504. The Committee further notes that the Supreme Court of Justice, after hearing the appeal lodged by the officers against the aforementioned decisions, handed down a final ruling (No. 164) on 18 September 2000, ordering that the complainants be reinstated without retaliation of any kind, under identical conditions of employment and with the same responsibilities as those held at the time of their dismissal, and that they be paid their wages in arrears and the corresponding benefits.
3. 505. The Committee nevertheless observes that, according to the complainant organization, on 22 December 2000 – i.e. after the Ministry of Health had officially announced the dismissed physicians’ reinstatement by court order – the Health Ministry’s Director of Human Resources ordered the transfer of the officers to remote regions of the country. Consequently, the Committee recalls that one of the fundamental principles of freedom of association is that union officials should enjoy adequate protection against acts of discrimination in respect of their employment, such as dismissal, […] transfer or other prejudicial measures, because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 724].
4. 506. The Committee considers that the transferred trade union officers should be able to continue performing their duties as before, as long as those who elected them mandate them to do so. The Committee accordingly requests the Government to ensure that the transferred officers are not impeded in the exercise of their trade union activities, and to keep it informed in this regard.
5. 507. The Committee further notes that the officers were deprived of their trade union immunity in December 1998 already and that, according to the Government, Dr. Gustavo Porras Cortez is not exercising his duties as Secretary-General of FETSALUD because the latter ceased operating after 13 November 2000 for failing to comply with the requirement to renew its executive committee within the time frame prescribed by the Regulations of Trade Union Associations. The Committee takes due note of the Government’s statement but considers that such suspension of operation might simply be a logical consequence of the officers’ dismissal.
6. 508. The Committee finally takes note of the allegation that in February 2001 the Government ordered the suspension of payroll check-off for employees, in violation of article 224 of the Labour Code. In this connection, the Committee emphasizes that it is necessary to avoid withdrawal of the check-off facility, as this might lead to financial difficulties for trade union organizations and is not conducive to the development of harmonious industrial relations [see Digest, op. cit., para. 435]. The Committee accordingly requests the Government to re-establish the check-off facility and to keep it informed in this respect.