Rapport définitif - Rapport No. 359, Mars 2011

1. 947. The Autonomous Workers’ Federation of Nicaragua (CTN–A) presented a complaint in a communication dated 18 February 2010.
2. 948. The Government sent its observations in a communication dated 26 October 2010.
3. 949. 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. 950. In its communication dated 18 February 2010, the CTN–A states that on 11 December 2009 the representatives of the Municipal Union of Technical and General Education Workers of Granada, the Union of Schoolteachers and General Service Workers of NERPE “Mercedes Mondragón” of Granada, the Democratic Union of Education Workers of Diriomo (Granada) and the Union of Education Centre Security Workers of Granada (SITRAVICE–Granada), affiliated to the Departmental Federation of Technical and General Education Workers of Granada, affiliated with the CTN–A, submitted to the Departmental Labour Inspectorate of Managua, Branch I, a formal list of demands for the sole purpose of signing a collective labour agreement in order to improve the general social, economic, labour and trade union conditions of Ministry of Education (MINED) employees, owing to the expiry of the current collective agreement. The complainant organization adds that a notification of 15 December 2009 from the Departmental Labour Inspectorate, Ministry of Labour, Branch I, Managua, stated that, the legal requirements had been met according to section 373 of the Labour Code, the list of demands were admitted, further action would be taken, as required by law, by the bargaining committee, and the matter would be referred to the Directorate of Conciliation.
2. 951. The complainant adds that, on 22 December 2009, in accordance with section 377 of the Labour Code, the Head of the Directorate of Collective Bargaining and Conciliation at the Ministry of Labour issued a notice to the effect that, in accordance with section 377 of the Labour Code, Ms Yasmina Auxiliadora Jiménez Latino was hereby appointed as conciliation lawyer and the parties were summoned to appear at the Directorate of Collective Bargaining and Conciliation at the Ministry of Labour on Tuesday, 12 January 2010, at 9 a.m., to attend a preliminary negotiation hearing. If the employer was unable to appear in person, he could appoint a legally authorized representative or establish a duly accredited bargaining committee having official power to take decisions.
3. 952. The CTN–A indicates that, by means of a communication dated 7 January 2010, the Head of the Directorate of Collective Bargaining and Conciliation at the Ministry of Labour informed the Minister of Education, the Labour Affairs Secretary of the Municipal Union of Technical and General Education Workers of Granada, the Labour Affairs Secretary of the Union of Schoolteachers and General Service Workers of NERPE “Mercedes Mondragón” of Granada, the General Secretary of the Democratic Education Workers’ Union of Diriomo (Granada) and the Finance Secretary of the SITRAVICE–Granada that, in order to ensure the greatest possible representation of teachers and workers of the MINED in the bargaining process for the new collective agreement, the convocation for the preliminary negotiation hearing scheduled for 12 January 2010 had to be suspended until such time as the authority resolved matters arising from the new demands submitted by other trade union organizations at the MINED.
4. 953. On 21 January 2010, the Head of the Directorate of Collective Bargaining and Conciliation at the Ministry of Labour notified the complainant that the Director-General of Human Resources at the MINED had stated that bargaining had been in progress with the trade union organizations in the education sector since 16 December 2009, in accordance with sections 240 and 372 of the Labour Code. The Directorate also stated that the parties had agreed and signed the collective agreement for 2010–12 on 5 January 2010 and had sent three copies of the collective agreement duly signed by the parties for verification and registration, in accordance with section 372 of the Labour Code. The Directorate of Collective Bargaining at the MINED indicated that, in view of the fact that it had received demands sent by the Departmental Inspectorates, Branches I and II, after the start of direct negotiations for the MINED collective agreement between the MINED senior management and a group of trade unions separate from the one which had submitted demands to the Ministry of Labour, it arranged for the registration of the MINED collective agreement.
5. 954. The complainant indicates that, in view of the breaches committed by the Head of the Directorate of Collective Bargaining and Conciliation at the Ministry of Labour in relation to the provisions of the Constitution (articles 27, 46, 49, 52, 88 and 183), of ILO Convention No. 98 and of national law, the Municipal Union of Technical and General Education Workers of Granada, the Union of Schoolteachers and General Service Workers of NERPE “Mercedes Mondragón” of Granada, the Democratic Education Workers’ Union of Diriomo and the SITRAVICE–Granada, being in total disagreement with this decision issued by the Director of Collective Bargaining and Conciliation which violates its rights and guarantees, filed a formal appeal against it. On 2 February 2010, the Head of the Directorate of Collective Bargaining and Conciliation at the Ministry of Labour stated that the appeal was admitted, informing the appellants that they had 24 hours in which to bring their grievances concerning the decision before the Directorate-General of Collective Rights and Labour Consultancy at the Ministry of Labour.
6. 955. On 3 February 2010, the trade union organizations in question brought their grievances in written form before the Directorate-General of Collective Rights and Labour Consultancy at the Ministry of Labour, describing in detail the violations committed by the Head of the Directorate of Collective Bargaining and Conciliation at the Ministry of Labour and their grievances on the basis of these violations, specifically citing to the legislation that had been violated, causing the following grievances: (1) they had annulled the rights and guarantees established in articles 27, 49, 52 and 88 of the Constitution, being the object of discrimination and being divested of the inalienable right to conclude, in defence of individual and union interests, a collective agreement with their employer (the MINED), in accordance with the law; (2) they had annulled the rights and guarantees established in section 373 of the Labour Code with regard to submitting a list of demands to the Departmental Labour Inspectorate and concluding a collective agreement with their employer (the MINED), in compliance with the Constitution and the Labour Code; (3) they had annulled the rights and guarantees established in Article 4 of ILO Convention No. 98; (4) they had annulled the rights and guarantees established in Article 23 of the Universal Declaration of Human Rights, divesting the workers of the right to form trade unions for the protection of their interests. The complainant claims, as in the case of the decision against which they are appealing, to have been penalized by negligence on the part of the Departmental Inspectorates of the Ministry of Labour in the form of late transmission of the list of demands.
   • B. The Government’s reply
7. 956. In its communication of 26 October 2010 the Government states that, on Friday, 11 December 2009, at the Departmental Labour Inspectorate of Managua, Branch I (Oral Proceedings for Labour Administrative Matters), Ministry of Labour, a list of demands was received, signed on the same date by the Labour Affairs Secretary of the Municipal Union of Technical and General Education Workers of Granada, the Labour Affairs Secretary of the Union of Schoolteachers and General Service Workers of NERPE “Mercedes Mondragón” of Granada, the General Secretary of the Democratic Education Workers’ Union of Diriomo and the Finance Secretary of the SITRAVICE–Granada. The aforementioned list of demands was made versus the MINED.
8. 957. On 15 December 2009, the Departmental Labour Inspectorate of Managua, Branch I (Oral Proceedings for Labour Administrative Matters), issued an order relating to the admission and referral of the list of demands to the Directorate of Collective Bargaining and Conciliation, notifying the parties concerned (the MINED and the trade union organizations) as required by law. On 21 December 2009, the aforementioned list of demands was received at the Directorate of Collective Bargaining and Conciliation and, in accordance with section 377 of the Labour Code, a conciliator was appointed to hold a preliminary hearing, the date for which was set as 12 January 2010. The Directorate of Collective Bargaining and Conciliation was informed that lists of demands were still being received at the Departmental Inspectorate from certain trade unions, and these demands were being verified for compliance with the requirements of section 373 of the Labour Code. Accordingly, on Wednesday, 6 January 2010, a communication was addressed to the parties that had been summoned to a preliminary hearing due on Tuesday, 12 January 2010, informing them that the hearing had been suspended in order to ensure greater representation of the teachers.
9. 958. The Government states that on Thursday, 7 January 2010, the Directorate of Collective Bargaining and Conciliation received a communication signed by the Director-General of the MINED, indicating that negotiations had been in progress with the trade unions in the education sector since Wednesday, 16 December 2009, in accordance with sections 240 and 372 of the Labour Code. On 5 January 2010, the parties agreed and
   • signed the collective agreement for 2010–12. The agreement was negotiated directly between the parties, namely: the General Confederation of Education Workers of Nicaragua (CGTEN–ANDEN), the Nicaraguan Confederation of Education and Culture Workers (CONFENITEC), the Trade Union Confederation of Education Workers (CSTE), the MECD “29 June” Workers’ and Teachers’ Federation, the “Lolita Soriano de Guerrero” Schoolteachers’ Federation of the Department of Managua, the “Profesor Emmanuel Mongalo y Rubio” Education Workers’ Federation, the Trade Union Confederation of Teachers of Nicaragua, the MECD Headquarters Workers’ Union, the “Miguel Ramírez Goyena” Workers’ Union, the “Miguel Bonilla Obando” Autonomous Education Workers’ Union and the “Educational Independence” Workers’ Union, on the one hand, and the MINED, on the other.
10. 959. The Government indicates that the director of collective bargaining and conciliation complied with the terms of section 372 of the Labour Code, which states that collective agreements may be concluded by direct settlement and shall then be submitted to the Ministry of Labour for verification of their compliance with the law and for registration. The director was careful to ensure that the aforementioned agreement would in no way restrict the rights conferred on the MINED workers by the Constitution, the Labour Code or any other labour legislation. Subsequently, by means of an order of Thursday, 21 January 2010, the director issued an instruction at the request of the parties to register the 2010–12 MINED collective agreement and shelved the procedures launched in relation to the negotiations concerning the lists of demands before the Directorate of Collective Bargaining and Conciliation. The parties were notified accordingly on Thursday, 28 January 2010.
11. 960. On Monday, 1 February 2010, a formal appeal was filed against the order of Thursday, 21 January 2010 by the Labour Affairs Secretary of the Municipal Union of Technical and General Education Workers of Granada, the Labour Affairs Secretary of the Union of Schoolteachers and General Service Workers of NERPE “Mercedes Mondragón” of Granada, the General Secretary of the Democratic Education Workers’ Union of Diriomo and the Finance Secretary of the SITRAVICE–Granada.
12. 961. On Monday, 1 February 2010, the Director of Collective Bargaining and Conciliation issued an order admitting the appeals and instructed the appellants to bring their grievances within 24 hours before the Directorate-General of Collective Rights and Labour Consultancy. On Wednesday, 3 February 2010 a communication was submitted by the Labour Affairs Secretary of the Municipal Union of Technical and General Education Workers of Granada setting forth the grievances relating to the order of Thursday, 21 January 2010 issued by the Director of Collective Bargaining and Conciliation, as referred to above.
13. 962. The Directorate-General of Collective Rights and Labour Consultancy, by means of Decision No. 003-2010 of 2 March 2010, decided on Monday, 1 February 2010 to dismiss the appeal and uphold the order of Thursday, 21 January 2010 issued by the Director of Collective Bargaining and Conciliation.
14. 963. As regards the grievances caused and the violations of the constitutional and legal fundamentals alleged by the complainant, the Government states that the workers’ constitutional rights established in article 88(2) of the Constitution and in the Labour Code have been preserved inasmuch as the inalienable right of trade union organizations and employers to conclude collective agreements was respected, by means of dialogue and negotiation aimed at direct settlement between the parties, as in the case of the MINED collective agreement for 2010–12, which was negotiated by various trade union organizations and the employer. Under the provisions of labour law, the terms of a collective agreement shall apply to all persons in the categories covered by the agreement who work at the enterprise, business or workplace concerned, even if they are not union members, as laid down by section 237 of the Labour Code. This provision gives legal certainty to both parties to the labour relationship. On the one hand, the workers have the certainty of the collective agreement which applies to them and, on the other hand, the employer knows which collective agreement applies, since it would be impossible to apply, five, six or ten different collective agreements. The Ministry of Labour, through the Departmental Labour Inspectorate of Managua, Branch I (Oral Proceedings for Labour Administrative Matters), the Directorate of Collective Bargaining and Conciliation, and the Directorate-General of Collective Rights and Labour Consultancy acted in accordance with the law.
15. 964. Section 373 of the Labour Code empowers the Departmental Labour Inspectorate of Managua, Branch I (Oral Proceedings for Labour Administrative Matters) to verify compliance with the requirements laid down in the said section, in relation to lists of demands. In the present case, the inspectorate admitted in due time and form the complainants’ list of demands, which was referred in turn to the Directorate of Collective Bargaining and Conciliation. Finally, the Government declares that the complainant trade union organizations enjoy full exercise of the union rights conferred on them by the Constitution, the Labour Code and all other labour legislation.

C. The Committee’s conclusions

1. 965. The Committee observes that in the present case the Autonomous Workers’ Federation of Nicaragua (CTN–A) alleges that several of its affiliated organizations in the Department of Granada submitted a list of demands on 11 December 2009 to the Departmental Labour Inspectorate in Managua with the aim of signing a collective agreement with the MINED in view of the expiry of the current agreement, but although the list of demands was admitted and a mediator was appointed, the Directorate of Collective Bargaining at the Ministry of Labour stated that the list of demands was received after the start of direct negotiations between the MINED and other trade union organizations and ordered the registration of a collective agreement concluded by the latter for the 2010–12 period. According to the CTN–A, its affiliated organizations have been harmed by the negligence (or the negligence alleged by the complainant) of the departmental inspectorates as a result of the late transmission of its list of demands to the Directorate of Collective Bargaining and Conciliation at the Ministry of Labour.
2. 966. The Committee notes that: (1) the Government confirms the statements by the CTN–A regarding the submission of a list of demands by a group of affiliated organizations on 11 December 2009 and the receipt by the Directorate of Collective Bargaining at the Ministry of Labour of a communication from the MINED on 7 January 2010, indicating that as from 16 December 2009 it had initiated negotiations with other trade union organizations (four national confederations, three federations and three trade unions), with which it signed a collective agreement for the 2010–12 period; (2) the Directorate of Collective Bargaining and Conciliation at the Ministry of Labour ordered registration of the collective agreement and shelved the procedures launched in relation to the negotiations concerning the list of demands submitted by the organizations affiliated to the CTN–A; (3) the latter organizations appealed against the decision to register the collective agreement for 2010–12 concluded by the other organizations, and, in March 2010, the Directorate-General of Collective Rights and Labour Consultancy at the Ministry of Labour dismissed the appeal; (4) the workers’ rights established in both the Constitution and the Labour Code have been preserved inasmuch as the inalienable right of trade union organizations and employers to conclude collective agreements was respected and, under the provisions of labour law, the terms of a collective agreement shall apply to all persons in the categories covered by the agreement who work at the enterprise, business or workplace concerned, even if they are not union members; (5) this provision gives legal certainty to the parties to the labour relationship, since the workers have the certainty of the collective agreement that applies to them and the employer knows which collective agreement applies, since the law does not permit the application of several different collective agreements; and (6) the various levels of the labour administrative authority acted in accordance with the law.
3. 967. In this regard, the Committee considers that it cannot determine with certainty whether in the present case there was negligence or bad faith on the part of the labour inspectorates in the procedure involving the late communication to the Directorate of Collective Bargaining and Conciliation at the Ministry of Labour of the list of demands submitted by the organizations affiliated to the complainant. However, as regards the alleged delay in transmission of the list of demands, the Committee notes that the organizations affiliated to the complainant (primary trade unions and a federation in the education sector in the Department of Granada) opted for presentation of the list of demands to the administrative authority instead of contacting the MINED directly. On the contrary, the Committee observes that the organizations which signed the collective agreement (including four national confederations in the education sector) with the MINED opted for direct negotiation with that Ministry.
4. 968. Furthermore, the Committee observes that it was not informed that the complainant or its affiliated organizations had filed a complaint with the judicial authority for damages suffered as a result of the Ministry of Labour’s dismissal of the appeal against the decision to register the collective agreement in question. In addition, the complainant has not furnished any proof of the greater representativeness of its affiliated organizations in the education sector; on the other hand, the Government emphasizes that the signatories to the collective agreement include four national confederations in the education sector. Taking all the above information into account, the Committee will not pursue examination of this case.