Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

See under Convention No. 87, as follows:

A Government representative referred to the observations made by the Committee of Experts concerning the General provisional Act on means of communication of 1979 which, according to the Committee of Experts, imposed under section 3 of this Act, certain restrictions upon the freedom of information and freedom of expression for employers and workers. The representative stated that this Act had been repealed by the decree adopted by the National Assembly on 21 April 1989 which contains the new Act (No. 57) concerning means of social communication. The repeal of these former provisions and its complete substitution can be found in section 50 of Act No. 57. Taking into account the concerns and observations of the trade union and employers' organisations, as well as the suggestions made by the political opposition parties, the new legal provisions on this subject offer full guarantees of freedom of speech and freedom of information. All the standards alluded to by the Committee of Experts have been eliminated and the rights and responsibilities concerning the means of communications have been clearly defined. The previous censorship has been completely eliminated thus guaranteeing the free and responsible use of the media for all political and trade union organisations. Thus, full response has been given to the observations made by the Committee of Experts on this subject.

With regards to the changes in labour legislation concerning which expressed and detailed recommendations have been made, the Government representative indicated that the necessary consultation process has been in fact initiated with a view toward issuing a new labour code which will respond both to the observations made by the pertinent ILO bodies and, at the same time, to the overall situation which now prevails in the working environment of the country. As was noted by the study mission which visited Nicaragua at the request of the Government from 26 September to 6 October 1988, at present there are four different drafts of a labour code presented by political opposition parties and various trade union organisations.

The commitments made by the National Assembly during the first months of this year in connection with the fulfilment of the agreements and responsibilities assumed by the country at the Central American presidents Summit at Costa del Sol on 15 February 1989, prevented the formal start of parliamentary debate on this subject. The consultation process with all the bodies concerned, however, has continued. The Nicaraguan Government will officially request the technical assistance of the ILO in order to organise and implement the process of discussions and tripartite consultations through seminars or other activities considered suitable for this purpose. This request will be presented during the present Session of the Conference.

Moreover, concerning the practical exercise of the rights and freedoms of association existing in Nicaragua, the Government representative indicated that the study group which visited the country, and which was able to visit all the trade union and governmental bodies that it wished to see, expressed its thoughts about the trade union situation in this country. In this regard, on page 44 of its report (document GB 241/5/9) study mission stated "despite this situation, which is difficult from every point of view, a trade union movement and pluralist associations do exist in Nicaragua". He felt that this expression very faithfully described the real situation in Nicaragua at present in the field of freedom of association.

With regard to Convention No. 98 the Government representative expressed that indeed as noted by the Committee of Experts, even though there had been no official abrogation of Decree No. 530 which imposes participation of the Ministry of Labour in collective bargaining, this provision was in fact no longer applied; today the National Labour and Wages Organisation System is merely a reference group and employers and workers can negotiate their wages between themselves. Thus the Ministry of Labour has practically restricted its own role to simply that of a registry for collective agreements. In 1988, all the collective agreements arrived at or revised by workers and employers were recorded without any obstacle, as pointed out by the Committee's report and verified by the above-mentioned study mission.

The Government wanted to call the present Committee's attention to the efforts which have been made in the co-untry and the strong will of the Government to create effective conditions for consultation and tripartite dialogue. As a result of tripartite agreements; important, fiscal, financial and administrative policies have been advocated in order to stimulate the economic and productive activities of the employers, for example, conclusions had been drawn from the First tripartite National Meeting of the Lifestock Sector held during the first two weeks of April 1989.

Within the context of the political efforts made to finally find a negotiated solution to the Central American conflict, an amnesty was pronounced for the Somosa National Guards. The electoral law was amended thus responding to many of the concerns voiced by the opposition parties. The above-mentioned Act on means of communication of 1979 was repealed and, in general, national political prequisites are being established for an early holding of national elections in February 1990. One of the most recent measures has been the establishment of the Supreme Electoral Council with the participation of the political opposition parties which have already reached more than 20 organisations ready to participate in the elections. Even former leaders of the counter revolution ("contrarrevolución") have been covered by the amnesty; they may participate in the political compaign. All these efforts have been made despite the fact that the war of aggression against Nicaragua continues.

Finally the Government representative stated that his Government was firmly convinced that the ILO as well as other UN agencies would give their support and experience to the consolidation of democratic society, pluralistic and social justice contributing to the creation of conditions necessary for full tripartite consultation and dialogue among all the sectors. The Secretary-General of the International Employers' Organisation (IEO) stated that his organisation approached the question before the present Committee concerning freedom of association in Nicaragua feeling a lot of scepticism mixed with very little optimism. As allegations, complaints and representations are raised before the Committee on Freedom of Association of the Governing Body practically every year since 1981, the leaders of the employers' organisations - in particular the Superior Council of private Enterprise (COSEP) have been systematically detained, muzzled, imprisoned and assassinated. In this regard the speaker thanked the previous Director-General of the ILO, Franóois Blanchard, who did not hesitate to intervene a number of times before the Government of Nicaragua. These leaders were charged with the crime of openly expressing themselves on trade union rights, the recognition of independent social progress and the economic policy of the country.

Finding itself faced with the probability of the nomination by the Committee of Commission of Inquiry, the Government and the courts have recently freed an economist of the COSEP; he was cleared of charges after he had already endured 11 months in the Sandanista prisons. Still under international pressure, a member of COSEP who had been condemned without proof by the popular courts to 28 years in prison, has just been declared innocent. It is clear that the Government cannot ignore international opinion; this is what justifies a small dose of optimism with regard to ILO action.

As concerns the legislative plan, the situation is hardly better than in practice. In fact, after all the requests - reiterated year after year by the Committee of Experts - to amend the legislation concerning trade union rights and civil liberties in order to bring them into conformity with Conventions Nos. 87 and 98, the Government has responded with promises which have required the patience of both the Committee on Freedom of Association and the present Committee in that practically none have been kept. It is enough to mention three examples among many which justify the scepticism with which the statements and promises made here with regard to Conventions Nos. 87 and 98 must be received. First, notwithstanding the observations made by the Committee of Experts and the amendments promised, no collective agreement is valid in Nicaragua without the consent of the Government and the National Labour and Wages Organisation System (SNOTS). Second, the new Act on means of communication adopted in 1989 still permits almost all the abuses which were criticised by the Committee on Freedom of Association. Decrees Nos. 512 of 1989 and 888 of 1982 which violate basic rights to information and freedom of expression are still in force, and the Committee on Freedom of Association was of the opinion that the reform made was insufficient. Third, contrary to what the Government representative of Nicaragua has stated, and contrary to the commitments made by Nicaragua at the time of the study mission carried out by a representative of the Director-General in September 1988, no tripartite consultation with the aim of the adoption of a new labour code has taken place.

The present Committee should take into account all these elements when examining the situation prevailing in Nicaragua in the area of freedom of association. The IEO considered that the situation, in law as well as in practice, was in flagrant contradiction with the obligation freely assumed by this country.

The Employer member of Nicaragua observed that for three consecutive years the Committee of Experts has made comments on the need for national legislation to be brought into conformity with Convention No. 87. Referring to the conclusions and recommendations made by the Committee on Freedom of Association of the Governing Body, he stated that employers and independent trade unions had not been consulted on certain amendments made to legislative provisions, or on the provisions of the labour code which were announced. The Tripartite Advisory Committee to study questions related to international labour standards has not been created either. This is the case despite the fact that the Government offered that this Committee would start its work in March 1989.

The Employer member of Nicaragua stated that the media director of the Ministry of the Interior denied authorisation for the broadcasting of a radio news programme "La Nacion." Its director of the programme, who made the request, had received only evasive replies from the person in charge of the media department. The truth is that despite the fact that the state of emergency has been lifted, there are still decrees such as Nos. 511 and 512 which restrict freedom of expression and which have not yet been repealed.

With regard to the detention of leaders of employers' organisations, the Government did not extend amnesties, as it had promised to the ILO Governing Body, but rather it granted pardons.

The Employer member referred to the information concerning the right to strike, mentioned in the Committee of Experts report, stating that these strikes were due to the courageous and decisive attitude of the workers; on several occasions, as the whole world knew, the repression suffered by these workers was very severe. By virtue of the reiterated and continuous violation of ILO Conventions committed by the Government throughout the years and, in particular, as concerns Convention No. 87, he expressed the hope that the Government would take the necessary measures to strictly comply with the provisions of these international instruments.

Finally, with reference to the application of Convention No. 98, the Employer member stated that Decree No. 530 of 24 September 1980 provided under section 1 that collective agreements must have the approval of the Ministry of Labour in order to enter into force. This Act has not yet been repealed despite repeated requests by the Committee of Experts.

The Employer member of Argentine stated that it had been several years since the restrictions of the freedom of employers' organisation in Nicaragua had been noted. The principle of freedom of association and the genuine representative nature of employers' groups was put into question and the tripartite dialogue had been stripped of any legitimacy. There can be no true tripartite dialogue, either at the national or the international level, if the representatives of the various sectors are not respected. According to the speaker, the Latin American employers wanted to put on the record the absence of progress with regard to the conformity of the present situation with Convention No. 87. The statements which were just made by the previous Employer members indicated that measures to restrict the role of the authentic employers' organisations were frequently taken, whether it be by disregarding its representative nature or limiting its possibilities for expression. Either way, freedom of association, and freedom in general, is compromised. According to the speaker, the Employer members were determined to insist that Convention No. 87 be fully applied in practice. In order to fulfil the objectives set out by this Committee, the Conference, and the ILO, an authentic tripartite dialogue which respects the rights of the individuals who make up the organisations must be set up.

The Employers' members stated that this case of freedom of association concerned both workers and employers. The present Committee had been investigating the situation in Nicaragua with regard to Conventions Nos. 87 and 98 for a very long time. Furthermore, the Committee on Freedom of Association has had before it a number of complaints. The Government of Nicaragua, however, has systematically slowed the examination of these questions, which can be clearly seen in paragraph 20 of the Committee of Experts' general report. This report also indicated that excessive restrictions upon the freedom of association remain even after the lifting of the state of emergency. In practice, those who dare to criticise the Government have become the object of sanctions which often were harsh. The most recent example is that of the Director of an institute of economic research of an employers' organisation, shortly before the Conference, was freed after nine months of imprisonment thanks to pressure from the ILO.

This case is only one among many which confirms that freedom of expression is considerably restricted. The new Act on means of communication mentioned by the Government representative does not remove these restrictions, as had been recommended in the Committee on Freedom of Association's last report. In this context of limitations upon fundamental human rights the adoption of an appropriate labour code cannot be expected. The Nicaraguan Government, during earlier discussions, made promises concerning, for example, the re-establishment of trade union pluralism and the cessation of intervention in the formation of professional organisations. It was stated that consultations were in progress with workers and employers on these points but, in the last report by the Committee on Freedom of Association, it was very clearly stated that the most representative workers' organisation in Nicaragua, COSEP, had not been consulted. In this context, it is not surprising that there are no collective agreements. The repeal of the Decree of 1980, by virtue of which collective agreements must obtain the approval of the Minister of Labour, has often been requested. Although this obligation may exist in several countries for particular sectors, in this country it is a general obligation applicable to all sectors. If this decree is no longer applied, why is it not repealed?

With regard to wages, the social partners must fulfil certain requirements. This voids collective bargaining of its meaning.

It must again be stated that in practice, freedom of association, the right to organise and the right to collectively bargain raise certain objections and that the representatives of professional workers' and employers' organisations continue to be the object of serious attacks. This concerns fundamental rights which must be guaranteed to employers, as well as workers, and which is certainly not the case. It must be deeply deplored that the application of Conventions Nos. 87 and 98 has only been met with obstacles.

The Workers' members stated that, although the Committee on Freedom of Association had been presented complaints concerning the non-observance by Nicaragua of Conventions Nos. 87 and 98, it was good that the Government expressed itself before this present Committee because that would be very useful to the Committee on Freedom of Association.

In order to touch upon this discussion in a positive and constructive manner, the Workers' members expressed their wish that the political agreements signed in Central America would bring peace, stability and economic progress to the countries of that region, and as a result freedom, democracy and social progress.

This being said, like the Committee of Experts and the Committee on Freedom of Association, the present Committee has noted for a long time that Conventions Nos 87 and 98 are not applied either in law or in practice. In this regard, the allegedly exceptional situation in this country has served as a smoke screen for too long.

Serious difficulties persist: free trade union organisations are impeded from completing their mission and Decree 530 has not been repealed; even if the Government restricts itself to merely registering the agreements concluded by the employers' and workers' organisations, as long as Decree 530 has not been repealed the danger of impeding free bargaining still exists. Furthermore, certain improvements should be mentioned even if they are only partial improvements. In fact, trade union leaders were freed and a certain number of political changes occurred, which is a good omen for the installation of a system of freedom of association hand-in-hand with a system of political liberty. It would be useful to know if the new Act, which replaced the Act on means of communication of 1979, (which was not in conformity with Convention No. 87), fully conforms to this Convention. This issue will return to the Committee on Freedom of Association for verification.

Two interesting elements were raised with regard to the new draft labour code. First, consultation with the social partners is provided. Second, the Government will request ILO assistance in the form of seminars in which the representatives of various organisations will participate so that this code may permit the full application of the international labour Conventions. The question remaining was whether all the representative employers' and workers' organisations would be associated in this consultation and would participate in the seminars envisaged. This is a very important question upon which trade union pluralism and freedom of complete action for trade union organisations depends. It would be advisable to follow very closely the developments of this process so that the Committee of Experts, the Committee on Freedom of Association and the present Committee can assure themselves that the progress which has occurred will become more concrete and that fundamental Conventions such as No. 87 and 98 will be fully applied.

The Worker member of Nicaragua stated that a pluralistic debate was taking place in his country between the employers and workers on the most urgent problems of the economy, such as the reactivation of enterprises which were affected by the war, and requests by employers for incentives for production and by workers for social benefits and participation in the management of enterprises. Freedom of expression exists in the country and workers as well as employers have channels for expressing their different opinions. The speaker stated that it had not been easy to adopt Act No. 57 on means of social communication in the Legislative Assembly. First of all, a discussion was entered into among the different sectors of the country, through the mass media, and lastly in the Legislative Assembly. At the request of the trade union organisations the National Communications Council was created. This Council will have a deliberative and consultative nature.

In November 1988, the first trade union meeting took place. The main subjects examined were the labour code and the creation of a law for workers' participation in enterprises. The labour code was given priority and as a result several preliminary drafts were formulated, one of which was presented by the organisation of by the speaker. Some organisations proposed the modification of the present code so that it would include the comments made by the Committee of Experts. For its part, the organisation of the speaker was in favour of the drafting of a new labour code, which is the main demand of the political parties who will participate in the 1990 elections. The workers and employers are bilaterally negotiating collective agreements. In many cases they have been negotiated with the economic capacity of the enterprises taken into account, and in some cases, the employers have asked that negotiations be postponed. The delegates of COSEP and National Union of Farmers and Ranchers (UNAG) can confirm this. A tripartite meeting took place on 26 and 27 April devoted to agricultural production for 1989-90 when bank debts for cotton undertakings were forgiven and bank credit was approved for different areas of production. The collaborative spirit which exists between workers, employers and the Government must also prevail in the present Committee in order to stimulate communication, with the goal of reconstructing a country which finds itself between war and peace.

The Worker member of Spain stated that his country followed the situation in Nicaragua very closely. Spanish trade unions had sent workers' brigades to help build houses in Nicaragua. Through these visits, they were able to verify that a truly pluralistic discussion exists in the country. They also verified that the restrictions which existed during the state of emergency have completely disappeared and that, now, a true democratic opening has occurred which has made freedom of expression for trade unions, employers and political parties possible. The conclusions reached by the Spanish trade unions were confirmed by the newspapers which recognised that Nicaragua was faithfully applying the agreements to which the workers' spokesman had made reference. Seemingly, the same conclusion was reached by the Spanish Government which recognised that Nicaragua had faithfully complied with the "Esquipulas II" agreements.

The Worker member of Ecuador joined in the opinion expressed by the Workers' spokesman, according to which the fundamental desire was to see the normalisation of the situation which prevails in the countries of Central America, and particularly in Nicaragua. The desire of all Latin American workers is that this country be allowed to find its own destiny. The aim of the ILO was to bring about such progress for justice and shared development for peace: Beyond the limitations of a judicical nature of the standard setting instruments of the Organisation, the workers must be protected. This is precisely the task of the present Committee. Furthermore, this Committee should be concerned that what was stated here actually be carried out, and not remain merely good intentions. Flexible machinery was needed to bring into practice these good desires. The problem in Nicaragua is more political than legal. The principal cause of these problems must be eliminated. Once that cause has been exhausted, these problems will no longer exist. In spite of the suffering in Nicaragua caused by the war, this country has made progress in the fields of health, housing and education. The industrialised countries are in a better position to comply with the Conventions; they have greater independence in taking decisions. On the contrary, the countries that, like the Latin American countries and those of the Third World, find themselves burdened with foreign debt, suffer economic dependence. The conditions imposed by the International Monetary Fund negatively affect the application of the Conventions. In conclusion even when these countries have the desire to fully comply with the provisions of the Conventions, they are not in a position to do so.

The Worker member of Uruguay stated that for some years this Committee had been dealing with the complaints against Nicaragua. The Government had responded to the complaints with valid arguments. In 1988, a study mission wrote a positive report with respect to the situation in the country. The state of emergency was lifted and trade unions were given every right, including the right to strike which had figured in the mission's report. Sixty strikes have been registered and no trade union leaders have been assassinated, as in the case in other Latin American countries. Furthermore, Act No. 57 on the means of communication which permits employers and workers to freely express themselves, has been adopted. proposals have been made for the creation of popular associations and political parties. The Government of Nicaragua, as the study mission stated, intends to promote economic and social consultation. This is a matter of fundamental values taking into account the situation of war that prevails in the country. The workers and employers must work together for the reconstruction of the country. The Government of Nicaragua is currently entering into discussions with the various trade union organisations with a view to the promulgation of a new labour code which will soon be the object of debate in the Legislative Assembly. Tripartite consultation is presently taking place under the auspices of the ILO. Amnesties have been granted to reinforce the will for peace and democracy in Nicaragua. The Supreme Electoral Council was created with a view to the elections which will take place in February, 1990. Twenty political parties, which enjoy full freedom of expression, will participate in these elections. The workers of Uruguay welcomed the progress made in Nicaragua despite the immense difficulties that the Government has faced. Nicaragua has made efforts to comply with international labour standards and it is fitting to take note of the progress made in this regard.

The Worker member of Venezuela stated that in August 1988 he led, at the invitation of organisations which had no links with the Government a pluralist committee of a confederation of workers' trade unions of Venezuela to Nicaragua. He was able to note that there was freedom of expression and freedom of association and that organisations that did not share the opinions of the Government were provided with all the necessary facilities to exercise their functions. In this respect, he stated that it would be necessary to look for the points of convergence between all of those who did not share the Government's position. Finally he stated that there should be compliance with the Conventions but that the Nicaraguan Government was confronted with obstacles, as much from the inside as from the outside, which prevented them from ensuring complete respect.

The Workers member of the United States stressed that although the Government representative had communicated some encouraging information about what was being done or what was intended to be done, there was as yet no specific information communicated in report form to the Committee of Experts for their review and evaluation. The responses made by the Government representative to the points raised by the Committee of Experts were very general. He requested the Government representative to respond in more detail concerning the measures to be taken with regard to the following recommendations raised in the Committee of Experts' report: to guarantee the right to organise for public servants and self-employed workers in rural and urban sectors; to remove excessive limitations on the exercise of the right to strike; to amend the provision on the general prohibition of political activities by trade unions, and to abolish the restrictions concerning the formation of trade unions.

Finally, with regard to Decree No. 530 of 1980 which makes collective bargaining agreements subject to the approval of the Ministry of Labour, he stated that the Committee of Experts and the present Committee had traditionally been of the opinion that it was not enough for a decree containing provisions contrary to ILO standards not to be used in practice, but that the legislation would have to be repealed.

The Workers member of the United Kingdom stated that when a country undergoes a tremendous upheaval such as that experienced by Nicaragua, it must be recognised that problems still remain even though signs may exist that suggest it is emerging from those difficulties. The judgement which must be made is not whether everything is going to be immediately perfect, but whether as a general rule progress is being made towards the objectives promoted by the ILO. There were a number of questions raised by both the employers' members and the workers' members which needed to be answered. He associated himself with the request made by the Workers' spokesman for an assurance that all truly representative trade unions are given legitimacy by the laws of the land. These were hard questions which deserved firm answers.

The situation gave rise to particular concern as regards the public service, in particular, civil servants. He asked the Government representative to assure unequivocally that civil servants would be granted the right to organise and that this right be guaranteed in the new labour code. His own opinion concerning the Government's good will would depend upon the answers given to these questions.

Finally, the final judgement would depend on the events occurring in the coming year when the outcome of what has been promised can be seen. Some governments made promises, the fulfilment of which seemed to be put off year after year. Next year the present Committee would be entitled to expect full results from the promises made by the Government representative.

The Government member of the USSR stated that the goal of the discussions before the present Committee was to guarantee social justice. In order to do this, it was necessary to be fair in the evaluation of concrete situations. The case of Nicaragua was a typical example of this concern.

It was not only a question of making remarks concerning the legal machinery which guaranteed the application of conventions, but also a question of assessing a society. Nicaragua could not be compared to other countries without taking into account the war, the destruction and the economic difficulties through which they have suffered for many years. The application of Conventions depends on the economic and social situation of a country and, therefore, in order to evaluate the situation fairly it was necessary to verify whether there had been progress towards the installation of social justice, which is the ultimate aim of these Conventions.

Taking into account the political and social situation which exists in the country, the Government representative gave adequate proof that his Government tried to ensure respect for the requirements of Conventions Nos. 87 and 98. A democratic process has started in Nicaragua. progress has been made towards trade union pluralism and it would be fair to adequately appreciate the efforts made by the Government to apply the provisions of Conventions Nos. 87 and 98. The speaker stated that he was convinced that the Government of Nicaragua would follow up on its promises and that it would meet its obligations.

The Government member of Venezuela stated that the object of the discussion was to promote favourable conditions for the application of Conventions. She stated that in the present discussion, there were a series of positive aspects as regarded the application of the Conventions which had been hightlighted by the various speakers. The Government had demonstrated its willingness to engage in dialogue by giving facilities to the study mission, sending information to the supervisory bodies and supplying detailed and positive information to the present Committee. The study mission had noted certain restrictions but it had also pointed to signs of progress. The speaker expressed the hope that the present Committee would take note of the positive developments that had taken place and that the situation would continue to evolve favourably.

The Employers member of the United States requested the Government representative to indicate what the Government intended to do with respect to freedom of association of employers, the recognition of COSEP, the incarceration of employer leaders and the representation of employers, He considered that the present Committee, in its conclusions, should make some specific reference to the fact that real problems existed as regards the freedom of association of employers.

The Government member of Cuba stated that the interventions of previous speakers had pointed to the advances achieved in finding solutions to the problems raised by the Committee of Experts. The Government had shown its goodwill. In addition to the social problems which the Government had inherited, it had to face up to others that were the result of situations foreign to Nicaragua. She expressed the wish that the Committee of Experts and the present Committee would take account of the report and the results of the study mission (which had taken place with objectivity and impartiality) and that its findings would be reflected in the comments of the Committee of Experts and in the present Committee. The contents of the study mission report and the statements made by the Government representative of Nicaragua showed that there had been progress towards a better implementation of the Convention.

The Government representative, replying to the comments and questions made by Workers' members of the Committee, stated that: (1) as regarded the guarantee of the right to unionise of self-employed workers in the urban and rural sectors, the Constitution of Nicaragua fully guaranteed the right to form trade unions and to organise, and the Government hoped that this principle would also appear in the Labour Code which was currently the subject of full debate, (2) the restrictions on the right to strike had been completely suspended; (3) the provisions in the Code which prohibited political activities by trade unions was entirely out of place with reality in Nicaragua since, in keeping with their political preferences, trade unions had developed activities which they considered to be adequate for their interests and therefore this provision was not worth maintaining; (4) as regards the possibility of forming free trade unions, he pointed out that in Nicaragua there was no division between free trade unions and trade unions which were not free since. by their very nature, and because of the nature of the process of transformation which the country was going through, the unions were free; (5) Decree No. 530 was no longer applied in practice and the Ministry of Labour saw no objection to contemplating the possibility of its prompt repeal; (6) the Government was convinced that the legislation guaranteed the fullest freedom of association to public servants, a right which already existed in practice; (7) the question of granting the right to strike to civil servants would be discussed with the public servants' union organisations and other workers' organisations, but it was not yet possible to give a categorical reply as to whether this right would or would not be allowed, since this subject had to be examined in the light of all possible repercussions; (8) the Labour Code and the labour law revision would be debated with all the trade union organisations without exception, and this was the political will of the Government as regards the way in which the labour legislation would be modified.

Replying to the questions and concerns raised by the Employers' members, the Government representative stated firstly that he was surprised by the tone and the way in which they had been put, and this showed the persistence of a serious communications problem and a problem with genuine desire for dialogue, all of which made it difficult to arrive at common ground. He stressed the following points: (1) the imprisonment of employer leaders had not been due to the fact that they were employers, but because they had acted in violation of the national legislation, violations which could not be ignored by reason of the particular circumstances of those committing them; the employer leader, Mr. Guillermo Quant, had been sentenced on charges proven before the courts and had been pardoned not because of international pressure, but with a view to promoting a collaborative climate for the economic restructuring of the country without the exclusion of any sector; the employer leader, Mr. Allegria, had been released by the court, and this showed the independence of the judiciary; (2) as regarded tripartite consultation. it was incorrect to say that this did not exist; Mr. Dreifus, a leader of COSEP, had participated as the reporter in a seminar on consultation and the Labour Code organised by the SIERA; since August 1988 consultation commissions had been established in which COSEP delegates took part and where prices and wages policies for the agricultural and stock-raising sector were discussed; the COSEP leader, Mr. Ramiro Gurdión, made public statements recognising how positive the Government's measures had been concerning the first tripartite consultations in the agricultural sector which took place in April; (3) the Government had the firm intention to promote changes in the labour laws and had requested the technical assistance of the Office; since the triumph of the revolution, the Government had made 22 changes to the Labour Code, some of which concerned freedom of association such as, for example, section 22 of the Labour Code which now guaranteed the reinstatement of dismissed workers in cases of political discrimination or trade union repression; (4) the Government intended to modify the provisions concerning collective agreements that were not in conformity with Convention No. 98; in 40 years of dictatorship there had only been 122 collective agreements, whereas over the last ten years more than 1,500 such agreements had been signed; there were 1,300 trade unions affiliated to seven trade union central organisations of different political and ideological convictions; the study mission indicated that despite the difficulties that beset the country, there was freedom of association and trade union pluralism; (5) as regards the Act on means of social communications, he stressed that the new law eliminated the provisions criticised by the Committee of Experts and this demonstrated the importance attached to their comments; the Government would send a special report on this question to the Committee of Experts. In Nicaragua, political pluralism was seen in the freedom allowed to political or occupational organisations to express their criticisms, for example, COSEP had its own journal and the newspaper La Prensa was published freely.

The Government representative regretted that the Employer members did not recognise the efforts that the Government was making and appealed to the employers of his country to give their support to the process of economic and social transformation and economic reconstruction in the country. This was an historic opportunity and he expressed the hope that they would seize it. It was normal that there were differences of opinion between the Government and the union or the employers' organisations, but with a genuine will and a constructive spirit an agreement could be arrived at and progress achieved. The employers had the right to challenge the government; there were 21 political parties in opposition having varied ideologies; the employers were thus free to choose whichever one suited their ideas in the elections due in February 1990.

The Employers's members indicated that the statements of the Government representative had not convinced them absolutely, their opinion is founded on a number of official ILO documents and not on suspicions. Since the Workers' position was for progress to be achieved by the present Committee, they decided not to propose that this case be the subject of a special paragraph. They hoped that the present Committee would reflect this divergence in its conclusions, along with the Employers' concern over this case. As freedom of association did still not exist in Nicaragua, neither for employers nor for workers, the Employers' members requested that the present Committee examine this case next year.

The Government representative of Nicaraga requested the Committee to take note of the Government's reservation as regarded the following portion of the conclusions of the Committee:

"The Committee noted, however, that the Committee of Experts in its report observed the persistence of a certain number of divergencies between, first of all, the law, and, secondly, practice with respect to the full application of these two Conventions. The Committee requested the Government to adopt, as soon as possible, all necessary measures to eliminate all the existing restrictions in law and in practice concerning the right of employers' and workers' organisations to exercise freely the rights garanteed by the two Conventions in question."

The Committee took note of the information supplied by the Government representative and the different comments and opinions expressed during the discussion. The Committee recalled the content of the recent reports of the Committee on Freedom of Association and, inter alia, the last interim report of the aforementioned Committee, presented to the Governing Body in May. The Committee noted with interest the suspension of the state of emergency, certain cases of releases of employer leaders and of trade unionists, and assurances by the Government that it would consult the employers' and workers' organisations and the International Labour Office. The Committee noted, however, that the Committee of Experts in its report observed the persistence of a certain number of divergencies between, first of all, the law and, secondly, practice with respect to the full application of these two Conventions. The Committee requested the Government to adopt, as soon as possible, all necessary measures to eliminate all of the existing restrictions in law and in practice concerning the right of employers' and workers' organisations to exercise freely the rights garanteed by the two Conventions in question. The Committee requested the Government to supply the Committee of Experts with precise information, with precise and detailed information on the development of the work on the re-elaboration of the Labour Code and the consultations that it would carry out on this matter. The Committee firmly hoped that next year it would be able to note decisive progress along the lines of the remarks made by the supervisory bodies.

The Government representative of Nicaraga requested the Committee to take note of the Government's reservation as regarded the following portion of the conclusions of the Committee:

"The Committee noted, however, that the Committee of Experts in its report observed the persistence of a certain number of divergencies between, first of all, the law, and, secondly, practice with respect to the full application of these two Conventions. The Committee requested the Government to adopt, as soon as possible, all necessary measures to eliminate all the existing restrictions in law and in practice concerning the right of employers' and workers' organisations to exercise freely the rights garanteed by the two Conventions in question."

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

In its previous comments on the observations of the International Trade Union Confederation (ITUC), the Committee asked the Government to hold an inquiry into the allegation of anti-union dismissals in export processing zones and various enterprises. The Committee notes in this connection the information supplied by the Government referring to the rights and remedies established by law that apply to export processing zones, and the measures taken to promote collective bargaining, including the establishment of a Tripartite Labour Committee for Export Processing Zones, which signed agreements in 2009 and 2010 for the benefit of workers, which cover the fundamental Conventions of the ILO. The Committee requests the Government to continue to provide information on the exercise of trade union rights in export processing zones, including the number of trade union organizations and the size of their membership, the number of collective agreements signed and their coverage, complaints filed for anti-union discrimination, etc.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s reply to the comments made by the International Trade Union Confederation (ITUC) dated 29 August 2008 referring to the imposition of compulsory arbitration and anti-union dismissals in export processing zones (EPZs) and various enterprises. The Committee notes the Government’s indication that compulsory arbitration in EPZs is provided for in the Foreign Investment Promotion Act and that it refers to commercial and not labour matters. The Committee requests the Government to undertake an investigation into the comment alleging anti-union dismissals in EPZs and various enterprises. The Committee also requests the Government to send its observations on the ITUC comments dated 26 August 2009 which also refer to this matter.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee duly notes that section 316 of the Penal Code, as amended in 2008, reinforces protection against acts of anti-union discrimination by providing that any termination of an employment relationship or modification thereof to the detriment of the worker by way of reprisal for the exercise of a labour right recognized in the Constitution, international instruments, laws, regulations or collective agreements shall be liable to a fine ranging from 90 to 300 days.

Article 2. Protection against acts of interference. In its previous comments the Committee referred to the need for the legislation to provide sanctions that are a sufficiently effective deterrent against acts of interference by employers or their organizations in trade union affairs. In this respect, the Committee notes with satisfaction the Government’s indication that section 316 of the Penal Code, as amended in 2008, imposes a fine ranging from 90 to 300 days on any employer, manager or administrator who finances or promotes organizations intended to restrict or impede the full freedom and autonomy of trade unions which are established in the Political Constitution of the Republic of Nicaragua, international instruments, laws, regulations or collective agreements.

Article 4. Promotion of collective bargaining. The Committee previously requested the Government to take steps to encourage collective bargaining in EPZs and to keep it informed of any measures taken in this respect. The Committee notes the Government’s statement that in the first half of 2008 a total of 20 collective agreements were signed in the EPZs, covering a total of 54,054 workers.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that it has not received the Government’s report.

The Committee also notes the comments made by the International Trade Union Confederation (ITUC), dated 29 August 2008, on the application of the Convention. In this regard, the Committee requests the Government to send its observations on the comments concerning the imposition of compulsory arbitration and anti-union dismissals in export processing zones and several companies.

Article 2 of the Convention. Protection against acts of interference. The Committee recalls that, in its previous observation, it noted that the fines envisaged in the legislation (from 2,000 to 10,000 cordobas, with 2,000 cordobas being equivalent to US$147) cannot be considered as dissuasive nor as adequate protection against acts of interference by employers or their organizations in trade union affairs and emphasized the need for the legislation to provide for sanctions that are sufficiently effective and dissuasive against such acts. The Committee reiterates once again the need for the legislation to provide for sanctions that are sufficiently effective and dissuasive against acts of interference by employers or their organizations in trade union affairs and asks the Government to inform it of any measures adopted in this respect in its next report.

Article 4. Promotion of collective bargaining. The Committee recalls that, in its previous observations, it took note of the statistics provided by the Government on the number of collective agreements concluded (and workers covered by them) in both the public and the private sectors and requested the Government to take measures to encourage the negotiation of collective agreements in export processing zones and to provide information in its subsequent report on any measures adopted in this respect. The Committee asks the Government, once again, to take measures to encourage collective bargaining in export processing zones and to keep it informed of any developments in this regard.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report.

The Committee also notes the comments of the International Confederation of Free Trade Unions (ICFTU) of 31 August 2005 and 10 August 2006, which refer mainly to issues already highlighted by the Committee. Moreover, the ICFTU cites a number of anti-union dismissals in various companies, including in export processing zones. The Committee asks the Government to send its comments in this respect.

Article 2 of the Convention. The Committee recalls that in its previous observation, it noted that the fines envisaged in the legislation (from 2,000 to 10,000 cordobas, with 2,000 cordobas being approximately equivalent to US$147) cannot be considered as dissuasive nor as adequate protection against acts of interference and emphasized the need for the legislation to provide for sanctions that are sufficiently effective and dissuasive against acts of interference by employers or their organizations in trade union affairs. The Committee notes that the Government recognizes that the legislation does not provide for sanctions that are sufficiently dissuasive against acts of interference, that the Government is responsible for preventing any act of anti-union discrimination and that, in the absence of special legislation, supplementary sources of labour law are applied which establish that those cases not provided for in the Code or by the supplementary provisions will be resolved in accordance with the general principles of labour law, case law, comparative law, scientific doctrine, international agreements ratified by Nicaragua, custom and ordinary law. The Committee reiterates once again the need for the legislation to provide for sanctions that are sufficiently effective and dissuasive against acts of interference by employers or their organizations in trade union affairs and asks the Government to inform it of any measures adopted in this respect in its next report.

Article 4. The Committee recalls that in its previous observation it took due note of the statistics provided by the Government on the number of collective agreements concluded (and workers covered by them) in both the public and the private sectors and requested the Government to take measures to encourage the negotiation of collective agreements in export processing zones and to provide information in its subsequent report on any measures adopted in this respect. In this regard, the Committee notes the Government’s indication that no new collective agreements have been concluded in the export processing zone sector, but that companies in which a collective agreement has been concluded are subject to section 241 of the Labour Code, which establishes that if the period set forth in the collective agreement expires without a request being made for its revision, it will be extended for another period of the same length as that of its validity. The Committee asks the Government, once again, to take measures to encourage the negotiation of collective agreements in export processing zones and to keep it informed of any developments in this respect.

Lastly, with regard to the comments of the Confederation of Trade Union Unification (CUS) of 9 September 2004 on the application of the Convention, the Committee notes that they refer to Decree No. 93-2004 which introduces reforms to the Occupational Associations Regulations. The Committee considers that the issues raised do not involve violations of the provisions of the Convention, except in respect of the lack of protection against acts of anti-union interference, as referred to in the paragraph above.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report.

Article 2 of the Convention. The Committee recalls that in its previous direct request it noted that the fines envisaged in the legislation (the Regulations respecting labour inspectors, Decree No. 13-97, providing that in the event of breaches of the provisions of the Labour Code and failure to comply with the measures ordered by inspectors to remedy them, fines of from 2,000 to 10,000 cordobas may be imposed, with 2,000 cordobas being approximately equivalent to US$147) cannot be considered as dissuasive nor as adequate protection against acts of interference. In this connection the Committee notes that the Government: (1) recognizes that their level may not be adequate to guarantee fully protection against acts of interference and indicates that for this reason the Directorate of Trade Union Associations (DAS) places great importance on the role of labour inspectors, which is essential in preventing labour disputes and maintaining the necessary harmonious industrial relations at the enterprise; (2) indicates that for the establishment of a system of fines based on a specific number of minimum wages it would be necessary to undertake a basic reform of the law respecting labour inspection (Decree No. 13-97), as well as reviewing and amending the Act establishing the General Directorate of Income and the Budget Act, so as to include the fines imposed by inspectors within untaxed income; and (3) reports that, with a view to securing the trust and legal certainty of trade union organizations, the DAS is giving effect to resolution No. 15, of July 2002, of the Technical Council of the Ministry of Labour in the sense that information submitted by workers to the Directorate must not be communicated to persons outside the executive boards of workers’ organizations, unless such information is requested by the judicial authorities.

The Committee once again emphasizes the need for the legislation to provide for sanctions that are sufficiently effective and dissuasive against acts of interference by employers or their organizations in trade union affairs. The Committee reminds the Government that it can have recourse to the Office’s technical assistance if it is envisaging the amendment of the legislation referred to in its report. The Committee requests the Government to provide information in its next report on any measure adopted in this connection.

Article 4. The Committee takes due note of the statistics provided by the Government on the number of collective agreements concluded (and workers covered by them) in both the public and the private sectors between 2000 and 2004: 37 in 2000; 25 in 2001; 47 in 2002; 23 in 2003; and 11 in the first half of 2004. It also notes the Government’s indications that the following numbers of agreements have been concluded in export processing zones: two in 2000; seven in 2001; and one in 2002. The Committee notes that, from the data communicated by the Government, it may be inferred that some of the collective agreements concluded in export processing zones in 2001 are still not in force and that it appears that new collective agreements have not been concluded in this sector in 2003 and 2004. The Committee requests the Government to take measures to encourage the negotiation of collective agreements in export processing zones and to provide information in its next report on any measures adopted in this respect.

Finally, the Committee takes note of the comments made by the Confederation of Trade Union Unification (CUS) in a communication of 9 September 2004 and requests the Government to provide its observations thereon.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report.

Article 2. The Committee recalls that in its previous direct request it noted the provisions of the Labour Code (section 17(i)), which lay down the obligation of the employer, inter alia, to refrain from interfering in their establishment and functioning, and that it requested the Government to indicate the sanctions envisaged by the legislation in the event of non-compliance with this provision. In this regard, the Committee notes that the Government refers to section 208(g) of the Labour Code, which provides for the possibility for trade unions to denounce to the Ministry of Labour, without prejudice to the respective judicial measures, any omissions, irregularities or breaches of the Labour Code. The Committee also notes that the Regulations respecting labour inspectors (Decree No. 13 97) provides for the possibility in the event of breaches of the provisions of the Labour Code and failure to comply with the measures ordered by inspectors to remedy them, of imposing fines of from 2,000 to 10,000 cordobas (2,000 cordobas are approximately equivalent to US$147, 10,000 cordobas to US$735). The Committee considers that the fines envisaged can neither be considered as dissuasive nor as adequate protection against acts of interference and therefore requests the Government to provide for the possibility of imposing sufficiently effective and dissuasive sanctions against acts of interference by employers or their organizations in trade union affairs. The Committee considers that a system of fines based on a specific number of minimum wages could give effect to the provisions of the Convention and could be more effective in view of inflation and the devaluation of national currencies. The Committee requests the Government to provide information in its next reform on any measures adopted in this respect.

Article 4. The Committee requests the Government to provide statistical information in its next report on the number of collective agreements concluded in the public and private sectors, including export processing zones, in the period covered by the report (with an indication of whether the agreements are concluded at the enterprise or branch level and of the number of workers covered).

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report.

The Committee had noted in its previous direct request that the new Labour Code and the Regulation governing Trade Union Organizations (Decree No. 55-97, formerly Decree No. 10-97) guarantee protection against dismissal and sanctions only to trade union officials and workers who express their wish to join a trade union and had raised questions regarding protection against acts of discrimination against workers either at the time of recruitment or during their terms of employment (dismissals, transfers, etc.). The Committee had also raised questions regarding protection against acts of interference by employers in trade union organizations and by trade unions in employers' organizations.

Article 1. As regards protection against acts of discrimination at the time of recruitment, the Committee notes that the information provided by the Government makes no mention of specific protection. The Committee points out that to ensure the effective practical application of Article 1 of the Convention, the legislation should prohibit and sanction acts of anti-union discrimination at the time of recruitment and again requests the Government to take the necessary measures to amend national legislation to that effect.

As regards protection against dismissal of workers for trade union activities, the Committee notes that section 46 of the Labour Code provides that when termination of a contract of employment by the employer takes the form of reprisals against a worker who has or intends to exercise his trade union rights, the worker can apply to the industrial tribunal for reinstatement.

As regards other acts of anti-union discrimination, particularly with regard to transfers, the Government indicates that two sections of the Labour Code are relevant. Section 31 establishes that "a worker can be transferred from one job to another by mutual agreement without detriment to his conditions of employment, salary, labour rights". Section 32 of the Code, which envisages transfers during a state of emergency, states that the transfer should not exceed the duration of the state of emergency, and that the worker should not incur a loss of earnings or a change in employment. The Committee notes this information, and asks the Government to indicate whether, under section 32, the transfers could have an impact on the trade union leaders exercise of trade union rights.

Article 2. As regards acts of interference, the Committee takes due note of the provisions of the Labour Code which lay down the obligation of the employer, inter alia, to respect the authority of the trade unions and to refrain from interfering in their establishment and functioning. The Committee requests the Government to provide information on the sanctions envisaged by legislation in the event of non-compliance of the above Article.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's report on and promulgation of the new Labour Code on 30 October 1996.

Articles 1 and 2 of the Convention. The Committee notes that the new Labour Code and the Trade Union Association's Regulations (Decree No. 10-97) ensure the protection of trade union officers against dismissal and sanctions, and of workers who express their wish to form or join trade unions, but that they contain no provisions affording protection from acts of discrimination against workers, either during the employment relationship (dismissals, transfers etc.) or at the time of recruitment. The Committee also notes that the legislation does not ban interference by employers in trade unions nor interference by trade unions in employers' organizations.

The Committee therefore asks the Government to take steps to include in the legislation provisions to protect workers against acts of anti-union discrimination, and to protect trade unions against acts of interference by employers, and employers and their organizations against interference by trade unions, in particular by establishing effective and sufficiently dissuasive sanctions for such acts.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report and recalls that in its previous comment it asked it to indicate the measures adopted, both in law and in practice, to promote collective bargaining and to refrain from any intervention which could restrict the freedom to conclude collective agreements.

On this matter, the Committee takes due note that in its report the Government has affirmed that the Ministry of Labour does not intervene in the negotiation of collective agreements, restricting its function to that of depository of the copy which the contracting parties lodge with the Ministry, and to ensuring that the clauses contained in the agreements do not violate workers' rights as laid down in current legislation. The Government adds that section 242 of the new Labour Code stipulates non-interference by the Ministry of Labour in the negotiation of collective agreements, and that its role is merely to be the custodian of the agreement between the parties. According to the Government, the Code has now been approved by the National Assembly but has not entered into force because some of its sections were vetoed by the Executive Authorities, but none of these relates to the collective agreement and new section 242 remains as cited.

The Committee expresses the firm hope that the amendments contained in the new Labour Code which give effect to Article 4 of the Convention will enter into force in the near future. The Committee requests the Government to send it the full text of the new Labour Code as soon as possible.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report and recalls that its previous comments referred to:

- the need to obtain the approval of the Ministry of Labour before collective agreements can come into force (Decree No. 530 of 24/09/1980, section 1); and

- the need for the Government to refrain from any intervention in collective bargaining and to confine itself to promoting collective bargaining.

The Committee notes with interest that section 4 of Act No. 97, of 19 April 1990, to reform and supplement the Labour Code, repeals Decree No. 530 (of 24/09/1980) which empowered the Ministry of Labour to approve collective agreements. It also notes the adoption of Act No. 102 of 23 May 1990, which repeals almost all of the provisions of Act No. 97 above, leaves in force section 4. The Committee also notes that, according to the Government, collective bargaining is currently bilateral and free and, also insofar as the negotiation of wages is concerned, takes place without interference by the Ministry of Labour.

The Committee requests the Government to make specific mention in its next report of the measures which have been adopted, both in law and in practice, to promote collective bargaining and to refrain from any intervention which could restrict the freedom to conclude collective agreements, as recommended by the Commission of Inquiry in 1990.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee takes note of the Government's report and observes that it contains information about compliance with the recommendations made by the Commission of Inquiry appointed in accordance with article 26 of the ILO Constitution to consider the complaint filed against Nicaragua concerning Conventions Nos. 87, 98 and 144.

The Committee takes due note that the Government indicates that, taking into account the observations of the Committee of Experts, the Commission of Inquiry and ILO advisers, it has prepared a draft Labour Code. In addition, with regard to tripartite consultations provided for in Convention No. 144, the Government states that extensive recourse to tripartism in different labour activities took place.

In this connection the Committee reminds the Government of its observations concerning the need to repeal Decree No. 530 of 24 September 1980, section 1 of which subjects collective agreements to the prior approval of the Ministry of Labour before they can come into force; concerning the need to promote collective bargaining; and to the effect that the authorities should refrain from any intervention or remove any obstacle that may restrict the free conclusion of collective agreements at different levels. In addition the Committee reminds the Government that, so far as successive interventions by the public authorities in wage negotiations are concerned, persuasion is preferable to dictation; it asks the Government to be good enough to indicate in its next report the measures that exist to establish the autonomy of the parties in procedures for bargaining on wage increases.

The Committee asks the Government to send it a copy of the draft Labour Code referred to. The Committee expresses the firm hope that at its next session it may be able to record tangible results in the matter of bringing the law into conformity with the Convention, and that the future Labour Code will embody the recommendations made by the Commission of Inquiry in its report.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the report presented by the Commission of Inquiry established in accordance with article 26 of the ILO Constitution to examine the complaint against Nicaragua concerning the application of Conventions Nos. 87, 98 and 144. The Committee notes in particular that in paragraph 546 of its recommendations the Commission of Inquiry considers that the Government should indicate, as from 1991, in its reports submitted under article 22 of the Constitution, the measures taken in law and in practice to give effect to its recommendations on the application of these Conventions in the period in question.

Consequently, the Committee asks the Government to provide detailed information on the measures taken to give effect to the recommendations of the Commission of Inquiry.

[The Government is asked to report in detail for the period ending 30 June 1991.]