Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 340, Mars 2006

1143. The Committee last examined this case at its March 2005 session and presented an interim report to the Governing Body [see 336th Report, paras. 655-685]. The General Confederation of Education Workers of Nicaragua (CGTEN-ANDEN) presented additional information in communications dated 6 June 2005 and 10 January 2006.

1. 1144. The Government sent its observations in a communication dated 14 July 2005.
2. 1145. 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. Previous examination of the case

1. 1146. After examination of this case at its meeting in March 2005, the Committee made the following recommendations [see 336th Report, para. 685]:
2. (a) The Committee requests the Government to keep it informed: (1) on the work situation of union leader Mr. Julio Jimmy Hernández Paisano (specifically, whether he has been dismissed for dereliction of duty) and on whether he has lodged an appeal in this respect; and (2) on the result of the appeal made by union leader Mr. Norlan José Toruño Araúz against the administrative decision to authorize the termination of his contract. In addition, the Committee requests the Government to carry out an investigation in relation to the work situation of union official Mr. José Ismael Rodríguez Soto, with respect to whom it was also alleged that the termination of his contract had been requested, and to keep it informed in this respect.
3. (b) With regard to the allegation that union leader Mr. Manuel Sebastián Mendieta Martínez was the victim of anti-union persecution, having had a person assigned to watch his movements, the Committee requests the Government to take steps to carry out an investigation into these allegations and to send its observations in this respect.
4. (c) As regards the alleged failure to implement judicial orders for the reinstatement of union officials and the payment of outstanding wages (the complainant organization refers by name to the officials concerned), the Committee requests the Government to ensure that the union officials named above by the complainant organization may opt freely for the implementation of the judicial decision or to accept the said indemnity. The Committee requests the Government to keep it informed in this respect.
5. (d) With regard to the allegation concerning the Government’s refusal to allow CGTEN-ANDEN to participate in the National Education Commission, the Committee requests the Government, if CGTEN-ANDEN formally applies for membership, to take steps to allow its admission.
6. (e) With respect to the allegations concerning the written orders from the MECD to educational establishments to bar entry to CGTEN-ANDEN leaders, the Committee requests the Government to take steps to ensure that CGTEN-ANDEN officials can have access to educational establishments in the context of the exercise of their union duties. The Committee requests the Government to keep it informed in this respect.
7. (f) Concerning the alleged preferential treatment of certain unions by the MECD, providing office facilities and other benefits such as the use of telephones in return for supporting the Government, the Committee requests the Government to take measures to guarantee that, in compliance with the undertaking mentioned above, the complainant organization may enjoy the same benefits as the other unions of the sector. The Committee requests the Government to keep it informed in this respect.
8. (g) As regards the allegations concerning the refusal of the MECD to grant paid union leave to officials of the complainant organization, the Committee requests the Government to ensure that, in accordance with the terms of the collective agreement, the officials of the complainant organization can avail themselves of paid union leave. The Committee requests the Government to keep it informed in this respect.
9. B. Additional information from the complainant
10. 1147. In its communications of 6 June 2005 and 10 January 2006, the General Confederation of Education Workers of Nicaragua (CGTEN-ANDEN) made the following claims relating to the recommendations made by the Committee upon their examination of the case in March 2005:
11. – regarding subparagraph (a)(1): union leader Julio Jimmy Hernández Paisano has been reinstated to his post and paid wage arrears because he made a legal appeal for protection of his constitutional rights (amparo) before the Court of Appeal;
12. – regarding subparagraph (a)(2): union leaders Norlan José Toruño Araúz and
13. José Ismael Rodríguez Soto were reinstated in 2004, but have again been dismissed for the same reasons as cited the first time and their wages are still being withheld. The Court of Appeal has ruled in favour of the union leaders, admitting their appeal for amparo, but the Government, through the Ministry of Education, has not complied with it;
14. – regarding subparagraph (b): union leader Manuel Sebastián Mendieta has been reinstated to his post and paid wage arrears. This reinstatement was made because the Court of Appeal ruled in his favour;
15. – regarding subparagraph (c): union officials José Antonio Zepeda and Róger Benito Acevedo Jiménez were reinstated in their posts with back-pay; trade union leaders Miriam Olivas Ardón and Miriam Gutiérrez García have been paid wage arrears;
16. – regarding subparagraph (d): after the strike and once the Labour and Wage Committee had been set up, the complainant organization was admitted to the National Education Commission on 6 April 2005 and now participates in its sessions;
17. – regarding subparagraph (e): the Government, through the Ministry of Education, allows access to schools by leaders of the complainant organization;
18. – regarding subparagraph (f): the complainant states that the Government has taken measures so as not to grant an economic advantage to other trade unions;
19. – regarding subparagraph (g): the Government has complied, through the Ministry of Education, with the obligation to grant union leave to its leaders.
20. C. The Government’s reply
21. 1148. In its communication of 14 July 2005, the Government states the following regarding the Committee’s recommendations following the previous examination of the case:
22. – Recommendation (a): (1) At the start of the 2005 academic year, Mr. Julio Jimmy Hernández returned to his classroom as a result of the ruling handed down by the Supreme Court of Justice. He currently has leave authorized by the Ministry of Education, Culture and Sport (MECD); (2) regarding Mr. Norlan José Toruño Araúz and Mr. José Manuel Rodríguez Soto, authorization was sought from the departmental labour inspectorate to terminate their contracts of work. In accordance with the procedure established in Law No. 185 of the current Labour Code, the termination of both contracts was granted. Later, the workers appealed to the labour courts for reinstatement; their cases are currently pending;
23. – Recommendation (b): Mr. Manuel Sebastián Mendieta Martínez is currently carrying out his teaching duties. There has been no persecution whatsoever from the MECD against him or any other official;
24. – Recommendation (c): As regards the issues addressed in this paragraph, the High Directorate of the MECD has instructed all departmental and municipal delegates and directors of centres in the national education system that they should comply strictly with the judicial rulings. To date, this instruction from the High Directorate of the Ministry of Education, Culture and Sport has been fully complied with;
25. – Recommendation (d): CGTEN-ANDEN leaders are part of the National Education Commission;
26. – Recommendation (e): In the context of the exercise of their union duties and with complete freedom of association, access to educational centres has been guaranteed to leaders of CGTEN-ANDEN and all union leaders, in the free exercise of their rights, on the proviso that they respect class times and avoid interrupting the school timetable;
27. – Recommendation (f): At present, the MECD treats all trade union organizations (including the complainant) equally and they all enjoy the same social benefits as in the education sector; and
28. – Recommendation (g): Clause 19, paragraph 2, of the collective agreement is being complied with, according to which, 60 working days are given to each organization that has signed the agreement and that has legally established and registered its board of directors with the Ministry of Labour.

D. The Committee’s conclusions

1. 1149. The Committee recalls that on examining this case at its March 2005 session, it requested the Government to keep it informed of the ongoing legal cases regarding the dismissal of union leaders, the work situation of union members, the failure to implement judicial orders for reinstatement, the inability of CGTEN-ANDEN to participate in the National Education Commission, the refusal to allow CGTEN-ANDEN leaders to access the academic establishments or to benefit from union leave, and the preferential treatment for other trade unions in the sector. Recalling that in the past it had observed problems of cooperation in relation to the submission of complete information by the Government, the Committee notes with interest the efforts now carried out in order to respond to its requests.
   • Recommendation (a)(1)
2. 1150. Regarding the work situation of union leader Mr. Julio Jimmy Hernández, the Committee is satisfied to note that the Government and the complainant have reported that he has been reinstated to his post and paid wage arrears.
   • Recommendation (a)(2)
3. 1151. Regarding the professional situation of trade union leader Norlan José Toruño Araúz and José Ismael Rodríguez Soto, the Committee notes that, according to the complainant organization, these workers have been reinstated in 2004, but dismissed again. According to the Government, both officials appealed the decision to terminate their contracts to the judicial authority. In these circumstances, the Committee requests the Government to keep it informed of the judicial decisions that will be issued in respect of these two union officials and to take effective measures to reinstate them immediately, if the court directs it.
   • Recommendation (b)
4. 1152. With regard to the allegation that union leader Mr. Manuel Sebastián Mendieta Martínez was the victim of anti-union persecution, the Committee is satisfied to note that the official in question has been reinstated to his post and paid wage arrears.
   • Recommendation (c)
5. 1153. As regards the alleged failure to implement judicial orders for the reinstatement of union leaders and the payment of outstanding wages (José Antonio Zepeda, Róger Benito Acevedo Jiménez, Miriam Olivas Ardón and Miriam Gutiérrez García), the Committee is satisfied to note that, according to the complainant organization, trade union leaders José Antonio Zepeda and Róger Benito Acevedo Jiménez have been reinstated in their posts with back-pay, and that officials Miriam Olivas Ardón and Miriam Gutiérrez García have received their salary and do not want to resume their duties.
   • Recommendation (d)
6. 1154. With regards to the allegation concerning the Government’s refusal to allow CGTEN-ANDEN to participate in the National Education Commission, the Committee is satisfied to note that the Government and the complainant report that since April 2005, CGTEN-ANDEN has participated in the National Education Commission.
   • Recommendation (e)
7. 1155. With respect to the allegations concerning written orders from the MECD to educational establishments to bar entry to CGTEN-ANDEN leaders in the context of the exercise of their union duties, the Committee is satisfied to note that, according to the information provided by the complainant organization and the Government, these leaders can now access education establishments.
   • Recommendation (f)
8. 1156. Concerning the alleged preferential treatment of certain unions by the MECD, providing office facilities and other benefits such as the use of telephones in return for supporting the Government, the Committee is satisfied to note that according to the complainant organization and the Government, the latter has ceased giving preferential economic treatment to other trade unions. The Committee also notes the Government’s indication that the MECD currently treats all trade union organizations equally and that they all enjoy the same social benefits as in the education sector.
   • Recommendation (g)
9. 1157. As regards the allegations concerning the refusal of the MECD to grant paid union leave to officials of the complainant organization, the Committee is satisfied to note that according to the complainant organization and the Government, the latter complies with its obligation to grant trade union leave to its leaders.