Rapport intérimaire - Rapport No. 350, Juin 2008

1. 1423. This complaint is contained in a communication dated 27 September 2007.
2. 1424. The Government sent its observations in a communication dated 4 January and 10 April 2008.
3. 1425. 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 complainant’s allegations

1. 1426. In its communication of 27 September 2007, the Confederation of Trade Union Unity (CUS) states that after winning the elections and upon taking office on 10 January 2007, the Government of the Republic of Nicaragua began appointing all its civil servants in the various ministries, decentralized entities and state enterprises. It notes that in the Republic of Nicaragua, prior to this, the Civil Service and Administrative Careers Act and its Regulations had been approved, with a view to avoiding massive dismissals of public servants, guaranteeing in that law the collective agreement and freedom of association. Freedom of association and collective bargaining are guaranteed in the National Constitution, in the Labour Code, in the Civil Service and Administrative Careers Act, etc.
2. 1427. Following the appointment of all the Ministers of State and directors of public bodies, the new Government has gone out of its way to disrupt, destroy and get rid of the trade unions that are not in agreement with its ideas; trade union officials have been dismissed – even though they have trade union immunity – without just cause; in addition, the collective agreements are being completely distorted and broken. In view of the breaks in the collective agreement and the dismissal of workers, including trade union leaders, these acts have been reported in the media and workers were starting to come forward with particular complaints. At the same time, a case was being prepared before the Ministry of Labour in defence of these rights. Specifically, the Democratic Federation of Public Service Workers (FEDETRASEP) took the decision to report the violation of freedom of association, because in addition to being public servants, they are members of the Executive Committee of the union, and run the risk of being dismissed like other members of the executive committee.
3. 1428. The complainant indicates that since 11 January 2007, the trade unions representing all the workers at the Ministry of Transport and Infrastructure (MTI), in an effort to achieve a good employment relationship, have requested a meeting with the Minister to address labour matters of interest to the institution and the rights of workers and to thereby comply with clause No. 1 on mutual recognition and respect. Everything in this regard is established in the current collective agreement signed by the management and the trade unions of the MTI on 14 July 2005 and in accordance with the provisions of article 88 of the Political Constitution of the Republic of Nicaragua, Act No. 185, the Labour Code, Act No. 476, Civil Service and Administrative Careers Act, and the collective agreement negotiated by both parties at the Directorate of Collective Bargaining and Individual Conciliation of the Ministry of Labour. However, according to the CUS, what the workers at the MTI have got from the current administration, is a series of violations of laws and standards contained in the current collective agreement, national legislation and the ILO Conventions signed by Nicaragua.
4. 1429. The CUS adds that the above is proven by the fact that the bilateral agreement reflected in a memorandum signed on 28 March 2005 by workers at the MTI, represented by the trade unions, and the management of the institution has been disregarded and suspended. This bilateral agreement was to recognize by way of a salary adjustment, the equivalent of 80 extra hours per month for all the institution’s drivers, something that has been recognized since 1999. Disregarding and suspending this bilateral agreement, which had become an acquired right for the Ministry’s drivers, greatly affects the household income of more than 80 drivers, reducing by more than 50 per cent the salary that the management interprets as overtime and not as a salary adjustment.
5. 1430. The complainants say that article 1 of Act No. 516 “Acquired Labour Rights Act” states that: “In the application and interpretation of the present Act, ‘acquired labour rights’ are understood to be the collection of benefits, powers, standards of protection and similar provisions that are established in favour of workers in the Political Constitution, labour legislation, international labour conventions, ministerial regulations or decrees, collective agreements and bilateral agreements between employers and employees”. Article 2 of the same Act states that: “In accordance with the provisions of article 1 and by virtue of this present law, all the rights established for workers, in accordance with the provisions of the Political Constitution, the Labour Code, labour legislation, special laws, ministerial regulations, collective agreements or accords, are considered as acquired labour rights definitively, for their beneficiaries and those involved in the collective agreements or individual labour contracts or legal employment relationship”.
6. 1431. The CUS affirms that, customarily and in the way that this salary adjustment has been paid, even the management recognizes it as they have used it as a reference for the deduction of food embargos, bank deductions, the Christmas bonus and advances to duly confirmed salaries reflecting that these extra hours have been considered as a salary adjustment and not as overtime. The salary adjustment contained in the MTI drivers’ bilateral agreement is definitively an acquired labour right, and as such forms part of the collective agreement or the individual labour contract or the legal employment relationship.
7. 1432. The complainant alleges that, on 26 January 2007, the trade unions of the MTI received a communication from the Financial Administration Directorate indicating that, on the orders of the senior management and without exception, the vehicles assigned to the trade unions should remain parked at the MTI buildings from Friday and throughout the whole weekend, during which time they would be guarded by the security patrol until the start of work on Monday, and adding that they would carry out a special check and if this order was disobeyed a report would be sent so that the necessary corrective measures could be taken. According to the CUS, this order violates clause No. 12 of the current collective agreement. As well as breaking this acquired right reflected in clause No. 12 of the current collective agreement, it also breaks article 88 of the Political Constitution of the Republic of Nicaragua, Act No. 516 on Acquired Labour Rights, article 71 of the Civil Service and Administrative Careers Act and article 17, paragraph (o) of Act No. 185 of the Labour Code, because the trade unions need to have access to means of transport on weekends and without any restriction in order to be able to cover all labour social needs of all members of the unions in seminars, labour congresses, precautionary transfers to hospitals or clinics in cases of illness, accidents and funeral arrangements upon the death of employees.
8. 1433. The complainant notes that the highest authority of the Ministry has stated that it will eliminate this acquired right of the workers, claiming that what is indicated in clause No. 12 of the collective agreement is expressed in singular form and not plural form and it should be interpreted as only one vehicle, only one fuel allowance, as well as one office, one computer with internet access, one printer, stationery, one office supply, one chair, one desk, one telephone with outside line, one air conditioning unit, one dry-wipe board, one metal filing cabinet, as well as the supply of one coffeepot, one cup, sugar, coffee, biscuits for the seven legally formed unions representing more than 70 per cent of the workers at the MTI. They add that this threat has been carried out as the institution’s transport office was instructed to take these vehicles away from the trade unions.
9. 1434. The complainant notes that the following statement can be read in a declaration by the Ministry Publisher in El Nuevo Diario on 12 February 2007: “There are staff members who are being protected within the board of directors of trade unions and who are on the list of high salaries.” The complainant understands this to show their intention to violate clause No. 13 of the current collective agreement which stipulates that: “The Ministry of Transport and Infrastructure will respect the trade union immunity of all members of the boards of directors of the existing trade unions and their duly elected section representatives in each of the directorates and delegations of the institution, as established by the Labour Code in section XI, articles 231, 232, 233, 234 and article 87 of the Political Constitution of the Republic of Nicaragua and the Civil Service and Administrative Careers Act and its Regulations. Were the MTI to dismiss a member of the executive committee or the branch committee, they should convoke the bipartite committee established in clause No. 16 of the collective agreement, to hear and decide on the case; were there to be no agreements, the issue would be forwarded to the Ministry of Labour, in accordance with the provisions of section XI of the Labour Code, for those workers who enjoy trade union immunity”.
10. 1435. According to the complainant, this public declaration shows their intention not to comply with this clause. Moreover, they spoke to trade unions at a labour committee of the absolute willingness of the administration to dismiss employees who were members of the executive committees of unions and had trade union immunity. The complainant notes the case of Mr José María Centeno, leader of the National Union of Workers of the DGTTMTI (SINATRA-DGTT-MTI), dismissed on 26 April 2007, and that of Mr José David Hernández Calderón, Secretary of Promotion and Advertising of the Executive Committee of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC), dismissed on 4 May 2007. Though they were protected by trade union immunity, these two workers and trade union members were dismissed illegally and without any procedure, thereby violating the provisions of articles 231, 232, 234 of Act No. 185 “Labour Code”; articles 87 and 88 of the Political Constitution of the Republic of Nicaragua; articles 54 and 55 of Decree No. 55-97 “Regulations of Trade Union Associations”; clauses 14 and 16 of the current collective agreement (of the MTI); article 37, points 1, 2, 10; and articles 60 and 109 of Act No. 476 “Civil Service and Administrative Careers Act”. Added to this, on Friday, 11 May 2007, Mr Alvaro Leiva Sánchez, who was working as the Secretary for Labour Matters on the Board of Directors of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC) and as the Secretary for Labour Matters on the Executive Committee of the Democratic Federation of Public Service Workers (FEDETRASEP) and had trade union immunity, was dismissed without just cause and without due process. This illegal dismissal was revoked by Mr Gustavo Guzmán Guillén, at around 6 p.m. that same day, 11 May 2007, claiming that it had been an error.
11. 1436. The complainant states that the aforementioned union official (Mr Alvaro Leiva Sánchez) is currently in imminent danger of being dismissed. He currently holds the position of head of the subdirectorate of the unit of the Assistance Desk of the MTI, a role which he holds as a result of his own ability and merits. The CUS alleges that on 21 May 2007, Mr Leiva received from the Secretary-General of the MTI memorandum MTI/DM/PFME/423/21/05 signed and sealed by the Minister of Transport and Infrastructure and addressed to all the general and specific directors of the MTI, which expressly stated that: “As of this day Mr Wilber Andino is appointed interim director of the unit of the Assistance Desk because this division requires leadership that is concerned with the good image of the institution and a series of situations have arisen over the past several months in which I have had to reprimand the current head of the area Mr Alvaro Leiva”. The complainant affirms that the information in memorandum MTI/DM/PFME/423/21/05 of 21 May 2007 from the MTI is false since when Mr Leiva was acting as interim director responsible for the unit of the Assistance Desk for more than five months his actions were at all times in accordance with the legal and administrative standards of the MTI and he never received a written reprimand from the MTI for any failing contained in article 51 of Act No. 476 “Civil Service and Administrative Careers Act” and the Labour Code. The memorandum implies the unjust and discriminatory treatment of Mr Leiva for the simple reason of being a union official. The removal of Mr Alvaro Leiva from his post as interim director responsible for the unit of the Assistance Desk of the MTI without just cause violates his role as reported and expressed in the Manual of Posts and Functions written by the Directorate of Human Resources of the MTI and the Directorate General of Public Service of the Ministry of the Treasury and Public Credit which states in section 2, subsection 2.6: “Take responsibility for the Assistance Desk in the absence of an immediate superior”, among other legislative provisions. It is evident that workplace harassment is being promoted against the union official Alvaro Leiva by the interim director of the Public Relations centre on direct instructions from the Minister of Transport and Infrastructure and the Secretary-General of the MTI.
12. 1437. The complainants allege that the MTI was aware of and ignored the actions of its Director General of Aquatic Transport with regard to the illegal and arbitrary expulsion of the general secretary of the Independent Trade Union of the MTI from the office that she had worked in for more than five years with a view to using it for the new Subdirector of Aquatic Transport. In the same way, the Director-General of Land Transport failed to act against the illegal and arbitrary expulsion of the Union of Democratic Workers of the MTI from the auditorium that it used for holding its trade union meetings in order to use it for the Subdirector of Land Transport. The complainant adds that, a notification was also made regarding a transfer of responsibilities, against his will, to the inspector of land transport, Mr Marcos Mejía López, who is a member of the Executive Committee of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC) and has trade union immunity, all with a view to making him appear as excess staff and later proceed to his dismissal. In addition, they allege the illegal suspension from work duties for reason of being under investigation of the union official and aquatic inspector Mr Javier Ruiz Alvarez, by the Director of Human Resources of the MTI and the Director-General of Aquatic Transport. Inspector Ruiz missed work for reasons of illness, and subsisted during his absence on the legal sickness benefit provided by the Nicaraguan Institute of Social Security (INSS). This was not taken into account, so that during his absence and without due process, a bipartite committee was set up to dismiss him without considering his trade union immunity as he is the publications and press secretary of the Independent Union of Workers of the MTI.
13. 1438. The CUS also alleges persecution and workplace harassment in order to proceed later to the dismissal of Mr González Gutiérrez, finance secretary of the SINATRA-DGTT-MTI, with trade union immunity. In this case, the administration of the MTI used illegal and disloyal practices and acted in bad faith by forcing the various licensees of land transport with conflicting routes to submit complaints against him, without considerating that both the itineraries and the routes had already been authorized by a competent higher authority in the previous administration, before he took on the role of Delegate of Land Transport in Managua. This violates national legislation.
14. 1439. The complainant indicates that the MTI has violated the current collective agreement of the MTI in respect of clause No. 01 on mutual recognition and respect; clause No. 02 on scope of application; clause No. 03 on labour stability; clause No. 07 on trade union training; clause No. 08 on time bank for trade union activity; clause No. 09 right of workers; clause No. 11 on duties of the employer; clause No. 12 on trade union premises and facilities; clause No. 13 on trade union immunity; clause No. 16 on the bipartite committee; clause No. 17 on the promotions and vacancies committee; clause No. 18 on occupational health and safety; clause No. 22 on social benefits committee; clause No. 25 on the attention of security guards (CPF); clause No. 26 on incentives and rewards; clause No. 28 on technical training; clause No. 29 on medical attention; clause No. 32 on payment for food; clause No. 33 on transport subsidy; clause No. 34 on travelling expenses; clause No. 35 on extra hours; clause No. 36 on uniforms; clause No. 37 on salary advances; clause No. 38 on salary revision committee; clause No. 41 on renewal of licences and insurance; clause No. 42 on school voucher; clause No. 48 on sporting, educational and cultural activities; clause No. 49 on employee identity card; and clause No. 51 on printing the agreement.
15. 1440. The CUS reports that as they are in imminent danger of being dismissed and in light of the violations of the employment and constitutional rights of trade unions, they proceeded to lodge an appeal for amparo (protection of constitutional rights) with the Court of Appeal, civil chamber No. 1, Managua district and the cases have not yet been resolved (Nos 5458/2007 and 5459/2007). In this regard, the complainant notes that it feels aggrieved because justice has been delayed from ruling. The only ruling that the Court of Appeal, civil chamber No. 1, Managua district, has given is in Case No. 5457/2007 where the appeal for amparo was not granted, although ample proof had been provided for the violations of constitutional rights. Lastly, the complainant adds that the authorities of the MTI have ignored the administrative resolutions from the Ministry of Labour and legal bodies in favour of union officials and workers at the institution with regard to reinstatements and compliance with the current collective agreement of the MTI, thereby violating the provisions of article 167 of the Political Constitution of the Republic of Nicaragua.

B. The Government’s reply

1. 1441. In its communication dated 4 January 2008, the Government states that the cases of the trade union officials are being heard at the wish of the parties, some through the administrative channels before the authorities of the Ministry of Labour, and others in labour tribunals, in accordance with procedures or processes established in law for conflicting parties. The Government adds that it requested information from the High Directorate of the MTI on the matter, and they reported the following:
   • – the administration of the MTI pays for extra hours worked as established in law;
   • – with regard to the violation of the collective agreement, this was denounced to the Ministry of Labour because upon assuming responsibility for the MTI it was found to be in an economically precarious situation. Denouncing the collective agreement is a right established in labour legislation for both signing parties of an agreement. Denouncing it has resulted in new negotiations in light of the current situation of the institution; the fact of denouncing the agreement does not in any way mean it has been violated, nor that any trade union rights have been violated. At this time, they are in a process of negotiation as indicated in the Labour Code. In its communication of 10 April 2008, the Government indicates that the Ministry of Transport and Infrastructure (MTI) and the trade union organizations UNE-STI, CEN-UNE, SITRAD-MTI, SI-MTI, SITRA-MTI, SEMTIAC, SINATRA-DGTT-MTI, CEN-UNE and CUS signed an agreement which included the extension of the validity of the collective agreement for the period January 2008 to July 2009;
   • – with regard to the dismissal of union officials, the Labour Code establishes the obligations of workers as well as of employers (articles 17 and 18) and if a worker or union official does not comply with their employment obligations, in accordance with that legislation, they can be dismissed following the procedures established in law.
2. 1442. The Government states that the General Labour Inspectorate communicated the following information about the case:
   • – with regard to the disregard for and suspension of the bilateral agreement established in a memorandum on 28 March 2005 between various trade unions and the former administration of the MTI (the memorandum in question stipulates that drivers will be paid an amount equivalent to 80 extra hours each month), the Labour Inspectorate handed down Resolution No. 092-07, ruling on the complaint lodged by Mr Roger Eduardo Martínez Domínguez and others, against the administration of the MTI for violation of their acquired labour rights. It was considered that the claimants did not prove that a right laid down in any legal standard contained in articles 1 and 2 of Act No. 516 had been broken, nor did they show that they had at any time received the additional salary payment which, according to the workers, had been authorized at the time by the Minister in charge of that institution by signing the “memorandum” document. The General Labour Inspector considered that the contents of that document, and the fact that it was signed by the Minister at the time, does not make it a vested labour right, because a memorandum cannot be, and is not, a document that generates rights or obligations. As a result, she upheld the decision handed down by the Departmental Labour Inspectorate for the Agriculture, Farming and Industry Sector, at 2 p.m. on 5 February 2007;
   • – with regard to Mr Javier Adolfo Ruiz Alvarez, there are two different situations. Firstly, the General Labour Inspectorate handed down the ruling of 11.48 a.m. on 5 June 2007, rejecting the request for authorization to cancel the employment contract of Mr Ruiz Alvarez, in his capacity as a union official, brought by the MTI, for not complying with the concluding part of article 48 of the Labour Code. Later, in another case, the General Labour Inspectorate, in Resolution No. 193-07, decided to overrule the appeal lodged by Mr Javier Adolfo Ruiz Alvarez in his capacity as a worker, who holds the post of publications and press secretary of the board of directors of the Independent Union of Workers of the Ministry of Transport and Infrastructure, against the ruling of the Departmental Local Labour Inspectorate One of 27 June 2007, wholly upholding the ruling appealed by Mr Ruiz Alvarez. The following legal considerations are worth mentioning here: that Mr Ruiz Alvarez was suspended from work by the MTI until the ruling of the Tripartite Committee (which is hearing the specific case of Mr Ruiz Alvarez); it emerges from this situation that suspension with salary is not a violation of trade union immunity, as it was verified through a special inspection report that Mr Ruiz Alvarez’s ordinary payroll salary was not withheld and that he was physically present at the institution, but without defined functions. As a result, the General Labour Inspectorate considers that the worker was not sanctioned and that it was a provisional decision of the employer while awaiting a ruling on his dismissal, which has been submitted for the consideration of the Ministry of Labour. Therefore, the existence of a request to cancel the employment contract in the Departmental Labour Inspectorate is not a violation of trade union immunity, in so far as the action of the employer is linked to the legal provisions on labour matters, on the basis of which the employee has the right to appeal the measure within 30 days following his knowledge of it, in accordance with article 48 of the Labour Code;
   • – with regard to the case of Mr José David Hernández Calderón, the General Labour Inspectorate ruled in the second instance on the appeal lodged by the Minister of the MTI, who expressed the grievances caused by the resolution of the Departmental Labour Inspectorate One, on 17 May 2007, alleging that the dismissal of Mr José David Hernández Calderón was a result of a reengineering of all the posts occupied by employees that were not matched to their abilities and which represented an exorbitant cost to the State. It considered that the MTI does not have the authority to unilaterally carry out reorganization or reengineering, because article 111 of Act No. 476, Civil Service and Administrative Careers Act, establishes that in cases of institutional restructuring and reorganization leading to the dismissal of civil servants or employees, these effects shall be established in the corresponding programmes or plans for the adaptation of human resources drawn up by the Government and approved by the Governing Body, and that in the present case the institution does not have the authority to unilaterally carry out reorganization, or reengineering as the MTI calls it, to cancel the employment contract of a public servant, which must be previously approved by the Governing Body, and which was not. Furthermore, Mr José David Hernández Calderón is a trade union official and is protected by trade union immunity, so it was decided in Resolution No. 175-07 of 31 August 2007 to overrule the appeal lodged by the Minister of the MTI, and as a result the appealed resolution was upheld.
   • – with regard to the breaking of certain clauses of the collective agreement and the request to revise its economic clauses, Mr Carlos Manuel Valdivia Chavarría and other officials from trade unions of workers at the MTI presented a formal complaint against the Minister of the MTI with the Departmental Labour Inspectorate One, for breaking certain clauses of the collective agreement and requesting to revise its economic clauses. In a resolution from the Departmental Labour Inspectorate One, on 14 May 2007, it was decided to uphold the complaint made by the officials from trade unions of workers at the MTI, as a special inspection had noted that the Minister of the MTI had broken certain clauses of the collective agreement. In Resolution No. 181-07 of 31 August 2007, the General Labour Inspectorate ruled on the appeal lodged by the Minister of the MTI, who did not agree with the resolution handed down by the Departmental Labour Inspectorate One. The General Labour Inspectorate verified by means of a special inspection that the MTI, represented by its Minister, had indeed broken the collective agreement of the MTI in clauses Nos: 1, 2, 3, 7, 9, 11, 16, 17, 18, 22, 25, 28, 29, 32, 33, 34, 35, 36, 37, 38, 41, 42, 49 and 51; in addition, the employer did not present any reliable evidence to show that the aforementioned clauses of the collective agreement of the MTI had been complied with. Therefore and in accordance with the provisions of the Political Constitution of the Republic of Nicaragua and articles 235 and 236 of the Labour Code and article 21 of the Labour Inspectors’ Regulations, Decree No. 13-97, the appealed resolution was wholly upheld;
   • – with regard to the alleged persecution and workplace harassment of Mr González Gutiérrez, the Departmental Inspectorate for the Agriculture, Farming and Industry Sector issued Resolution No. 040-07 of 10 July 2007 finding against the worker. The injured party (Mr Gustavo Antonio González Gutiérrez) appealed and expressed grievances to the General Labour Inspectorate, which in Resolution No. 194-07 of 11 September 2007 established and shared the opinion issued by the authority, because the reason for the dismissal alleged by the employer was accepted by Mr González Gutiérrez. This figures in the Record of the Tripartite Committee, the worker alleging that the employer had acted contrary to the provisions of the law (specifically Ministerial Accord No. 04-2002 that prohibits departmental delegates of the MTI to issue operating permits in any form, proof of authorization, changes of hours, renewal or licences), through verbal instructions by way of telephone calls made by the then Director-General of Land Transport. In addition, that resolution clarified that because Mr González Guitérrez is a member of the Executive Committee of the SINATRA-DGTT-MTI, he is protected by trade union immunity and the competent authority to authorize his dismissal for just cause is the Ministry of Labour, in accordance with article 231 of the Labour Code, and not the disciplinary procedure established in Act No. 486, Civil Service and Administrative Careers Act, as claimed by Mr González Gutiérrez. Therefore, the General Labour Inspectorate denied the appeal and upheld the resolution of first instance by the Departmental Labour Inspectorate for the Agriculture, Farming and Industry Sector.

C. The Committee’s conclusions

1. 1443. The Committee observes that in the present case the complainant alleges that with a view to destroying and getting rid of the trade unions that are not in agreement with the ideas of the new Government, trade union officials have been dismissed and collective agreements or accords are being broken. Specifically, the complainant alleges: (i) disregard for and suspension of the bilateral agreement reflected in a memorandum signed on 28 March 2005 by workers at the MTI regarding the recognition by way of a salary adjustment, the equivalent of 80 extra hours per month for all the drivers; (ii) violation of numerous clauses of the current collective agreement by the MTI (regarding among other things the use of vehicles assigned to the trade unions on weekends, the use of the premises by the General Secretary of the Independent Trade Union of the MTI and of the auditorium used by this trade union for holding its meetings, etc.); (iii) dismissals, without respect for trade union immunity or legal process, of Mr José María Centeno, leader of the SINATRA-DGTT-MTI on 26 April 2007, and of Mr José David Hernández Calderón, secretary of promotion and advertising of the Union of Employees of the MTI “Andrés Castro” (SMETIAC) on 4 May 2007; (iv) workplace harassment of union official Mr Alvaro Leiva Sánchez, Secretary for Labour Matters of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC) – he was dismissed on 11 May and reinstated the same day and is currently again at risk of dismissal; (v) the transfer of Mr Marcos Mejía López, a member of the Executive Committee of the Union of Employees of the MIT “Andrés Castro” (SMETIAC); (vi) suspension from work of Mr Javier Ruiz Alvarez, publications and press secretary of the Independent Union of Workers of the MTI; and (vii) persecution and harassment in order to later on proceed to the dismissal of Mr González Gutiérrez, finance secretary of the SINATRA-DGTT-MTI.
2. 1444. With regard to the alleged disregard for and suspension of the bilateral agreement reflected in a memorandum signed on 28 March 2005 by workers at the MTI regarding the recognition by way of a salary adjustment the equivalent of 80 extra hours per month for all the drivers, the Committee notes from the Government’s report that: (1) it requested information from the MTI and that body indicated that extra hours worked are being paid for as established in law; and (2) the Labour Inspectorate reported that Resolution No. 092-07 had been handed down, ruling on a complaint lodged by the workers; in this regard, considering that the complainants did not prove that a right laid down in any legal standard has been broken, nor that they had at any time received payment for salary adjustment and that a memorandum is not a document that generates rights or obligations; therefore the decision handed down by the Departmental Labour Inspectorate of 5 February 2007 was upheld. In this regard, considering that the Government also reported that the MTI and the trade union organizations concerned signed an agreement extending the validity of the collective agreement in the MTI, the Committee expects that this matter regarding the recognition by way of a salary adjustment, of the equivalent of 80 additional hours per month for all the drivers, will be the object of negotiations in the future, if it has not been dealt with yet in the current collective agreement.
3. 1445. With regard to the alleged violation of numerous clauses of the collective agreement by the MTI (regarding, among other things, the use of vehicles assigned to the trade unions on weekends, the use of the premises by the General Secretary of the Independent Trade Union of the MTI and of the auditorium used by this trade union for holding its meetings, etc.), the Committee notes that according to the Government: (1) the MTI reports that it took the decision to denounce the collective agreement to the Ministry of Labour because upon assuming responsibility for the MTI, the new authorities found it to be in an economically precarious situation and that denouncing it has provoked the start of negotiations, taking into account the current situation of the institution; (2) in a resolution from the Departmental Labour Inspectorate One on 14 May 2007 (upheld by a resolution from the General Labour Inspectorate on 31 August 2007), the complaint made by the officials from trade unions of workers at the MTI was upheld, as a special inspection had noted that the MTI had broken certain clauses of the collective agreement; the employer did not present any reliable evidence to show that the agreement had been complied with; and (3) the MTI and the trade union organizations concerned agreed to extend the validity of the collective agreement.
4. 1446. In these conditions, while recalling that it has underlined on numerous occasions that “agreements should be binding on the parties” and that “mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on firm ground” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 939 and 940], the Committee concludes that all the elements seem to indicate that this question is no longer topical and will therefore not proceed with its examination.
5. 1447. With regard to the alleged dismissal of Mr José David Hernández Calderón, secretary of promotion and advertising of the Union of Employees of the MTI “Andrés Castro” (SMETIAC) on 4 May 2007, the Committee notes that the Government states that the General Labour Inspectorate reported that it decided in the second instance to overrule the appeal lodged by the MTI against the resolution made by the Departmental Labour Inspectorate One on 17 May 2007 and thereby confirmed that the MTI does not have the authority to unilaterally carry out reorganization or reengineering because the Civil Service and Administrative Careers Act establishes that in cases of institutional restructuring and reorganization leading to the dismissal of civil servants or employees, the effects of the restructuring or reorganization shall be established in the corresponding programmes or plans for the adaptation of human resources drawn up by the Government and approved by the Governing Body, and that in the present case the institution does not have the authority to unilaterally carry out reorganization or reengineering to cancel the employment contract of a public servant; that must be previously approved by the Governing Body and furthermore, Mr José David Hernández Calderón is a trade union official protected by trade union immunity. In these conditions, the Committee urges the Government to implement the administrative resolutions and to take the necessary measures without delay to ensure that the dismissed union official is reinstated in his post, with payment of outstanding wages and other benefits. The Committee requests the Government to keep it informed in that regard.
6. 1448. With regard to the alleged persecution and harassment in order to later on proceed to the dismissal of Mr González Gutiérrez, finance secretary of the SINATRA-DGTT-MTI, the Committee notes that the Government states that the General Labour Inspectorate denied the appeal presented by the official in question against the resolution of the Departmental Inspectorate for the Agriculture, Farming and Industry Sector of 11 September 2007, because the reason for the dismissal alleged by the employer was accepted by the official in question (according to the Government this figures in the Record of the Tripartite Committee and the worker alleged that they had acted contrary to Ministerial Accord No. 04-2002 that prohibits departmental delegates of the MTI to issue operating permits in any form, proof of authorization, changes of hours, renewal or licence). In this regard, the Committee requests the Government to keep it informed of any legal appeal that the union official, Mr González Gutiérrez, may have presented against the resolution of the General Labour Inspectorate.
7. 1449. With regard to the alleged suspension from work of Mr Javier Ruiz Alvarez, publications and press secretary of the Independent Union of Workers of the MTI, the Committee notes that according to the Government, the General Labour Inspectorate reports that: (1) on 5 June 2007, a request for authorization to cancel the employment contract for not complying with the provisions of the Labour Code was rejected; (2) the appeal lodged by the union official in question against the ruling of the Departmental Labour Inspectorate One, of 27 June 2007, with regard to his suspension from work until the ruling of the Tripartite Committee, was overruled; (3) suspension with salary is not a violation of trade union immunity, as it was verified through a special inspection report that Mr Ruiz Alvarez’s salary was not withheld and that he was physically present at the institution, but without defined functions; (4) the worker was not sanctioned and the suspension was a provisional decision of the employer while awaiting a ruling on his dismissal, which has been submitted for the consideration to the Ministry of Labour; (5) a request to cancel the employment contract in the Departmental Labour Inspectorate does not constitute a violation of trade union immunity. In this regard, the Committee understands that in this case the official in question has been suspended from work, with payment of salary and without prohibiting his entry into the workplace, and that there is a pending request to cancel the employment contract. In these conditions, the Committee requests the Government to provide information on the specific reasons behind the request to cancel the employment contract of the union official, Mr Javier Ruiz Alvarez, and to inform it of the final outcome of the proceedings before the Departmental Labour Inspectorate.
8. 1450. Lastly, noting that the Government states that the High Directorate of the MTI has indicated in a general manner that, with regard to the dismissal of trade union officials, the Labour Code establishes that if a worker or union official does not comply with their employment obligations in accordance with the legislation, they can be dismissed following the procedures established in law, the Committee requests the Government to communicate its observations with regard to the following allegations: (i) dismissal, without respect for trade union immunity or legal process, of Mr José María Centeno, leader of the SINATRA-DGTT-MTI on 26 April 2007; (ii) transfer of Mr Marcos Mejía López, a member of the Executive Committee of the Union of Employees of the MTI “Andrés Castro” (SMETIAC), and (iii) workplace harassment of union official Mr Alvaro Leiva Sánchez, Secretary for Labour Matters of the Union of Employees of the MTI “Andrés Castro” (SEMTIAC) – he was dismissed on 11 May and reinstated the same day and is currently again at risk of dismissal.