Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and recalls its previous comments which referred to the following provisions of the Labour Code of 1945 and the Regulation on Trade Union Associations of 1951:

-- guaranteeing the right of association of public servants, self-employed workers in the urban and rural sectors and persons working in family workshops;

-- abolishing the requirement of an absolute majority of the workers of an enterprise or workplace for the establishment of a trade union (section 189 of the Labour Code);

-- amending the provision on the general prohibition of political activities by trade unions (section 204(b) of the Labour Code);

-- amending the requirement that trade union leaders must present to the labour authorities the registers and other documents of a trade union on application by any of the members of that union (section 36(2) amending the Regulation on Trade Union Associations);

-- allowing foreign workers to have access to trade union office (section 35 of the Regulation on Trade Union Associations);

-- lifting the excessive limitations on the right to strike, such as the requirement of the majority of 60 per cent for calling a strike, prohibiting strikes in rural occupations when products may perish if not immediately sold, and the referral of a dispute to compulsory arbitration by the authority, in services which are not essential in the strict sense of the term (sections 225(3), 228(1) and 314 of the Labour Code);

-- lifting the restrictions on federations and confederations exercising the right to strike (section No. 53 of the Regulation on Trade Union Associations).

The Committee notes with satisfaction that the provisions on freedom of association in the new Labour Code (Act No. 185 of 30 October 1996) which repeal and amend the majority of provisions which have been the object of the Committee of Expert's comments for many years.

Section 2 of the new Labour Code includes in its scope, with the sole exception of the armed forces, all persons who are resident in Nicaragua (section 3). Public servants, self-employed workers in the urban and rural sectors and persons working in family workshops are covered by the new Labour Code and, therefore, enjoy the right of association.

Furthermore, the new Labour Code has repealed the following provisions:

-- the requirement of an absolute majority of the workers of an enterprise or a workplace for the establishment of a trade union (section 189 of the former Labour Code);

-- the general prohibition of political activities by trade unions (section 204(b) of the former Labour Code);

-- the requirement that trade union leaders must present to the labour authorities the registers and other documents of the trade union on application of any of its members (section 36 of Act No. 1260 amending the Regulation on Trade Union Associations) which has been repealed by section 406 of the new Labour Code;

-- the restriction on calling a strike in rural occupations when products may perish if not immediately sold (section 228(1) of the former Labour Code).

Similarly, the requirement of a majority of 60 per cent of workers of an enterprise to call a strike (section 225(3) of the former Labour Code) has been reduced and section 244(c) of the new Labour Code requires the calling of a general assembly by the majority of workers, and section 17(2) of the Regulation on Trade Union Associations (Decree No. 55-97) requires in the general assembly a vote of half plus one of the total number of trade union members. The Committee recalls the importance it attaches to the principle that if a vote by workers before a strike can be held is required, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey on freedom of association and collective bargaining, 1994, paragraph 170).

In regard to the Civil Service and Administrative Profession Act (Act No. 70 of 16 March 1990, section 43(8) of which covers the right of association, the right to strike and to bargain collectively of public servants), the Committee notes the Government's statement that the provision has been suspended, but that in the absence of other provisions it is applied. The Committee requests the Government to inform it when it has adopted legislation in this respect.

Concerning the restrictions on foreign workers having access to trade union office (Decree No. 35 of the Regulation on Trade Union Associations of 1951), the Committee notes with interest the statement contained in the Government's report to the effect that they do have access to trade union office, since the principle of equality is applied with respect to the right to organize, as laid down in the Political Constitution. Moreover, the Government indicates that section 35 of the former Regulation on Trade Union Associations has been repealed by the new Regulation on Trade Union Associations (Decree No. 55-97) which no longer contains a reference to the situation of foreign workers.

Notwithstanding the latter, the Committee notes that section 21 of the new Regulation requires that members of the Executive Board of the trade union must be Nicaraguan nationals.

The Committee also notes with interest that the Government indicates in its report that federations and confederations may exercise the right to strike in accordance with the law. Nevertheless, the Committee notes that section 53 of the new Regulation on Trade Union Associations (Decree No. 55-97) provides that "in industrial disputes, federations and confederations shall limit their intervention to providing advice and moral and economic support required by striking workers".

Furthermore, the Committee observes that in accordance with sections 389 and 390 of the new Labour Code, a dispute may be submitted to compulsory arbitration when 30 days have elapsed from the calling of the strike. On this point, the Committee, in particular, considers that such restrictions could be limited to the provision laid down in section 247 of the new Labour Code (the exercise of the right to strike in public services or services that are of public interest may not be extended to situations which endanger the life and personal safety of the whole or part of the population) or in a situation of acute national crisis.

Finally, section 32 of the new Regulation on Trade Union Associations lays down certain grounds on which a worker may lose his or her trade union membership, matters which should be determined by the workers themselves in their statutes and not by the public authority, namely:

1.2. non-attendance, without justifying their absence, from six consecutive sessions of the general assembly;

1.3. non-payment of dues, without explaining the reasons, for a period of three months; and

1.4. non-exercise of the trade union activities required of members over a period of six months, unless they are able to demonstrate that they were prevented from doing so, will result in general and automatic expulsion from the trade union.

The Committee hopes that the Government will continue to make every effort to bring the provisions in sections 389 and 390 of the Labour Code of 1996 and sections 21, 32 and 53 of the Regulation (Decree No. 55-97) into conformity with the requirements of the Convention and requests the Government to inform it in its next reports of any progress made in this respect.