Report in which the committee requests to be kept informed of development - Report No 335, November 2004

1. 1097. The complaint is set out in a letter from the National Federation of Heroes and Martyrs Trade Unions of the Textiles, Clothing, Leather and Shoe Industry on behalf of the Roo Sing Garment Co. Workers’ Union (STERSG) of 29 May 2003. In a letter of 14 July 2003, the complainant sent additional information.
2. 1098. The Government sent its observations in letters of 29 September and 14 October 2003 and 2 February 2004.
3. 1099. 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 complainants’ allegations

1. 1100. In its letter of 29 May 2003 the complainant organization begins by stating that, after having to overcome problems with its formation in January 2001, the Roo Sing Garment Co. Workers’ Union (STERSG) submitted a list of demands on 18 April 2001. In May 2001, the Trade Unions Directorate convened the trade unions (STERSG and another trade union called “18 January” also active in the company) and the company to begin negotiations. Eight meetings were held in this way and over 60 per cent of the clauses were negotiated. In June the same year, the company sent a letter requesting suspension of the negotiations because the leadership of the 18 January union had been contested. The complainant alleges that from that moment, the company in connivance with officials of the Ministry of Labour, set out to contest the STERSG.
2. 1101. On 20 June 2001, the STERSG held an extraordinary general meeting to restructure its executive board and elect new negotiators. The documentation was submitted to the Trade Unions Directorate which, on 25 June, issued a directive stating that certain items must be rectified as they were illegible. Subsequently, on 2 October of the same year, the Directorate issued resolution No. 231-2001 in which it decided not to accept the request for restructuring. Two days later, the company sent a letter to the Trade Unions Directorate requesting the negotiations of the list of demands to be archived. Meanwhile, the company had presented a counter-proposal to the list of demands and the STERSG had in turn presented counter-proposals to reach a final agreement and conclude the collective agreement. On 15 October, the Trade Unions Directorate reiterated its decision to refuse approval of the restructuring of the executive board and ordered the suspension of the other board members. In consequence, it accepted the company’s request and ordered the records of the negotiations to be archived. The complainant alleges that the Ministry of Labour ignored article 234 of the Labour Code which provides that “when trade union leaders are involved in negotiations over an industrial dispute and their term of office expire, that circumstance shall not be grounds for not recognizing their representative capacity”. On 16 October, the company dismissed the general secretary of the STERSG, Edwin García. The court action for reinstatement was heard by the labour court and is now before the Labour Chamber in the Court of Appeal.
3. 1102. On 19 March 2002, elections were held in the STERSG for new trade union officers at an extraordinary general meeting. On the following day, the company unjustly dismissed the elected trade union officers, Blanca Alejandrina Aráuz, minutes and agreements secretary, Wilfredo Genaro Palacios, labour affairs secretary, and Johanela Conde Morales, women’s secretary (who in addition was pregnant at the time). Actions for reinstatement were initiated in the labour courts. Subsequently, two of them dropped their actions. In the case of Blanca Alejandrina Aráuz, the labour judge ordered her reinstatement but the company refused to comply. The case is currently before the Court of Appeal.
4. 1103. The complainant alleges that on 14 February 2002, the company signed a collective agreement with a pro-management trade union affiliated to the (autonomous) Nicaraguan Workers’ Federation (CTN) based in the Ministry of Labour. In this way, the Ministry of Labour and the CTN were able to exert pressure on the STERSG. The complainant points out that the CTN is an organization which receives funds from employers. The help received is intended to isolate, along with Ministry of Labour officials, organizations such as the STERSG which defend the workers’ interests.
5. 1104. The complainant also alleges that, in July 2002, anti-union acts worsened when the manager of the company asked the Ministry of Labour to suspend the STERSG.
6. 1105. In September 2002, 39 workers reported acts of sexual harassment and abuse of their position by company supervisors to the departmental labour inspectorate for the agro-industry sector. Following the inspection that was carried out, the supervisors initiated criminal proceedings for abuse and libel against members of the STERSG executive board and workers who testified against them during the special inspection by the Ministry of Labour. Those concerned are: César Pérez Rodríguez, Walter Chávez García, Walter Pérez Canales, Gretchel Suárez Martínez, Francisco Rodríguez Alvarado, Adriana Aguirre Traña, Hazel Briones, Paula Pavón, Tania Carazo Rodríguez, Johana Mejía Obando, Socorro del Carmen Bello, Martha Lorena Trujillo, Ana Sánchez, Xochilt Gonzáles, Janneh Balladares and Cenely Benevidez. The complainant reports that the criminal proceedings are continuing, that the company is paying for the supervisors’ lawyer and that the majority of these workers have been dismissed.
7. 1106. On 19 March 2003, a new executive board of the STERSG was elected, with Ms. Gretchel Suárez Martínez as general secretary. On 25 March the same year, the company informed her that it had decided to suspend her from work with pay. This violation was reported to the departmental labour inspectorate. However, as at the date of submission of the complaint, it had not taken any action in that respect. The general secretary has not been paid her wages for two months.
8. 1107. Lastly, the complainant alleges that after the trade unionists have been dismissed, employers in the free zones draw up blacklists to prevent them being hired by other companies.
9. 1108. In a letter of 14 July 2003, the complainant reports that the Labour and Trade Union Affairs Committee in the National Assembly made a public statement in June 2003 condemning violations of the human, labour and trade union rights of workers in free zones by various companies including the Roo Sing Garment Co. The complainant encloses the text of this statement.

B. The Government’s reply

1. 1109. In a letter of 29 September 2003 the Government states, with respect to the complaint of sexual harassment of workers by two supervisors, that the departmental inspectorate carried out an inspection of the company in September 2002 and that, through several interviews with workers, confirmed the complaint. The inspectorate decided to fine the company the maximum fine of C$10,000 córdobas and ordered the company to discipline those responsible on pain of further sanctions.
2. 1110. As regards the suspension of Ms. Gretchel Suárez Martinez’ contract, the Government states that on 25 March 2002 the company presented a request for individual cancellation of her contract, based on articles 48(d) and 18(a), (b) and (d) of the Labour Code and articles 32, 39, 54 and 57 of the Company’s internal regulations. None of the parties attended the conciliation proceedings. After examining the evidence presented by the parties and verifying that the parties were not undefended, it was found that there were no grounds for cancelling Ms. Suárez’ contract as the company had not succeeded in proving the grounds invoked. In May the same year, the company entered an appeal which was decided by the Inspectorate General, which fully upheld the decision of the departmental inspectorate for the industry sector.
3. 1111. In a letter of 23 March 2004, concerning the dismissal of Mr Edwin García, the Government confirms that the reinstatement proceedings are before the labour courts.
4. 1112. With regard to the case of Blanca Alejandrina Aráuz, it states that the case is in progress in the Labour Chamber of the Court of Appeal.
5. 1113. As regards the negotiation of a collective agreement between a trade union and the company, the Government points out that on 17 April 2001, the 18 January union, also belonging to the Roo Sing Garment Co., presented a list of demands. On the following day, the complainant presented another list of demands. Subsequently, in May 2001, the two unions together presented a joint list of demands to the company. In June the same year, the company presented a letter in which it stated that it did not agree with the 18 January union continuing to participate in the negotiations on the list of demands because it had sought to have that union challenged in the Trade Unions Directorate which had accepted its request. On 11 June 2001, the company presented a letter to the Directorate of Collective Bargaining and Individual Conciliation, requesting suspension of the negotiations on the list of demands because the 18 January union “was not legally constituted and did not have any trade union credentials”. The Government also states that on 21 June 2001, the STERSG presented a decision of the extraordinary general meeting electing a new executive board in order to obtain the necessary certification. On 21 September, the STERSG again presented a decision of another meeting held on 20 June in which it had agreed on a new executive board. On 2 October 2001, the Trade Unions Directorate decided not to accept the restructuring of the STERSG’s executive board. On 3 October, at 12.20 p.m., a further extraordinary general meeting was held to change the executive board, the decision of which was sent to obtain certification. On 4 October, the company sent a letter requesting the records of the negotiation to be archived taking into account that the STERSG “had lost its representativeness” by virtue of the abovementioned resolution of 2 October 2001. On 11 October 2001, the Directorate of Collective Bargaining and Individual Conciliation issued an order based on that resolution, accepting the company’s request and ordering the proceedings to be archived. Subsequently, in February 2002, the Directorate was informed of the conclusion of a collective agreement between the Roo Sing Garment Co. and the Roo Sing Garment Co. Democratic Workers’ Union (Nicaragua) with the request that it be registered. The registered agreement was signed on 14 February 2002 for a period of two years. The agreement covers all the company’s workers, irrespective of the trade union to which they belong.
6. 1114. As regards the alleged request for suspension of the STERSG, the Government states that on 18 June 2002, the Roo Sing Garment Co. asked the Trade Unions Directorate to undertake an inspection of the STERSG to ascertain whether it satisfied the legal requirements, such as the minimum number of members. In the course of the inspection, the Trade Unions Directorate informed the company, with respect to its request for cancellation of the STERSG’s legal personality, that such an action should be addressed to the competent authority, in accordance with article 219 of the Labour Code.
7. 1115. Finally, the Government states that no evidence has been found of blacklists of workers or of members of trade unions in companies covered by the free zone scheme. Under no circumstances do the administrative and judicial authorities allow such practices which are a serious violation of workers’ rights and the legal framework in which such companies are set up in the country.

C. The Committee’s conclusions

1. 1116. The Committee observes that the present case refers to allegations of a series of anti-trade union acts, in particular: the dismissal of several officials of the Roo Sing Garment Co. Workers’ Union (STERSG); refusal by the Roo Sing Garment Co. to comply with a court order to reinstate a trade union leader; negotiation of a collective agreement with a trade union financed by the employer, setting aside the agreement that was being negotiated with STERSG; application for suspension of the STERSG by the company in July 2002; criminal proceedings against the STERSG executive board for slander and libel, suspension of a trade unionist’s wages and drawing up of blacklists of trade union members. The committee observes the existence of a statement by the Labour and Trade Union Affairs Committee of the National Assembly in June 2003 condemning violations of the human, labour and trade union rights of workers in free zones by various companies including the Roo Sing Garment Co.
   • Dismissal of trade union officials
2. 1117. The Committee notes the allegations concerning the dismissal of trade union official Edwin García in October 2001 whose legal proceedings for reinstatement are currently before the Labour Chamber of the Court of Appeal. The Committee also notes that on 19 March 2002, on the day following their election, the trade union officials Blanca Alejandrina Aráuz, Wilfredo Genaro Palacios and Johanela Conde Morales (who was also pregnant at the time) were unjustly dismissed. According to the complainant, the latter two dropped their legal proceedings. In the case brought by Blanca Alejandrina Aráuz, although the court ordered her reinstatement, the company refused to comply and the case is currently before the Court of Appeal. The Committee notes that the Government confirms that the legal proceedings initiated by Mr. Edwin García and Ms. Blanca Alejandrina Aráuz are now pending in the labour courts and the Labour Chamber of the Court of Appeal, respectively. The Committee also notes that on 25 March 2003, days after being elected, Ms. Gretchel Suárez Martinez, general secretary of the complainant union, was suspended from her post. In this respect, the Government reports that the departmental inspectorate for the industry sector decided not to allow the cancellation of Ms. Suárez’ contract requested by the company as the company had not succeeded in proving the grounds invoked, a decision that was upheld by the Inspectorate General.
3. 1118. The Committee emphasizes that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate if they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed and recalls that the Government is responsible for preventing all acts of anti-trade union discrimination and must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, paras. 737-738]. Observing that the dismissals of Mr. Edwin García and Ms. Blanca Alejandrina Aráuz took place in 2001 and 2002, the Committee deplores the delay in the judicial proceedings and trusts that if the judicial authority confirms the anti-trade union character of those dismissals, both officials will be reinstated without delay and without loss of pay. If the judicial authority determines that reinstatement is not possible, both officials should be fully compensated. The Committee requests the Government to keep it informed in this respect. The Committee further requests the Government to inform it if Ms. Suárez was in fact reinstated in her post.
   • Restrictions on collective bargaining
4. 1119. The Committee notes that the STERSG, together with the 18 January trade union, both active in the Roo Sing Garment Co., presented a joint list of demands in May 2001 for the negotiation of a collective agreement. The Committee notes that the complainant alleges that after negotiating over 60 clauses of the agreement, the company contested the 18 January trade union and requested suspension of the negotiations claiming that the latter had ceased to be representative. The complainant alleges that the company then also set out on a campaign to contest the STERSG.
5. 1120. The Committee points out that, according to the information provided by the Government on 21 September 2001, the STERSG held an extraordinary general meeting to restructure its executive board and submitted the decision of that meeting to the Trade Unions Directorate in order to obtain the relevant certification. On 2 October 2001, the Trade Unions Directorate decided not to accept the restructuring of the STERSG’s executive board. The Committee observes that it appears from the notice sent by the Trade Unions Directorate to the STERSG, attached by the complainant to the complaint, that the rejection of the restructuring was due to the failure to comply with the legal requirements for holding the meeting of 21 September. According to the documentation attached to the complaint, it also appears that on 2 October the employer sent a letter of apology for not being able to participate in the negotiations planned for 3 October and asking for the negotiating meeting to be rescheduled. According to the Government, on 3 October, the STERSG held a further extraordinary general meeting to change its executive board and sent the decision to obtain the relevant certification. As confirmed by the Government, on 4 October the company sent a letter requesting the negotiating proceedings to be archived considering that the STERSG had ceased to be representative, invoking the abovementioned resolution of 2 October 2001. On 11 October 2001, the Directorate for Collective Bargaining and Individual Conciliation issued an order in respect of that resolution allowing the company’s request and ordered the proceedings to be archived.
6. 1121. The Committee observes that the company, two days after sending apologies for being unable to attend the negotiating meeting and requesting its rescheduling, requested the archiving of the proceedings, thus ending a bargaining process in which over 60 clauses on the list of demands had been negotiated. The Committee also observes that the administrative authorities ordered the collective bargaining proceedings to be archived despite the fact that the union had held a further extraordinary meeting to restructure its executive board and had sent the minutes for certification by the authorities, this being the executive board whose validity was not disputed by the Government in its reply. In these circumstances, the Committee recalls the importance of the obligation to encourage and promote collective bargaining, as provided in Article 4 of Convention No. 98 and requests the Government to adopt the necessary measures to ensure its application in the future. The Committee also recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of harmonious development of industrial relations [see Digest, op. cit., para. 814] and requests the Government to adopt the necessary measures to ensure observance of this principle in the future. The Committee recalls to the Government that the technical assistance of the ILO is available in this regard.
   • Request for suspension of the STERSG
7. 1122. As regards the alleged request for the suspension of the STERSG, the Committee notes that the Government states that in 18 June 2002, the Roo Sing Garment Co. presented a request for the cancellation of the trade union’s legal personality and requested the Trade Unions Directorate to carry out an inspection to verify if it satisfied the legal requirements. The Committee notes that the Directorate carried out the inspection and informed the company, on several occasions, that the application for cancellation should be made to the competent judicial authority, in accordance with article 219 of the Labour Code. The Committee notes this information and observes that neither the complainant nor the Government have reported the submission of any application by the company to the courts.
   • Conclusion of an agreement with a
   • trade union financed by the employer
8. 1123. The Committee notes that the complainant alleges that, in February 2002, the company concluded an agreement with the Roo Sing Garment Co. Democratic Workers’ Union (a pro-management union according to the complainant) affiliated to the (autonomous) Nicaraguan Workers’ Federation (CTN) based in the Ministry of Labour. The Committee notes that the Government confirms the conclusion of the abovementioned agreement which covers all the company’s workers, but does not send information on the pro-management character of the trade union in question. The Committee requests the Government to undertake an investigation into the complainant’s allegation and to keep it informed of the result, in particular as regards the representative character or otherwise of the Roo Sing Garment Co. Democratic Workers’ Union.
   • Criminal proceedings for slander
9. 1124. The Committee observes that two company supervisors initiated criminal proceedings for slander and libel against members of the STERSG executive board and workers who testified against them during the special inspection by the Ministry of Labour, within the context of a report of sexual harassment and abuse of position by these company supervisors. According to the complainant, the trade union leaders and workers against whom the slander proceedings were brought are: César Pérez Rodríguez, Walter Chávez García, Walter Pérez Canales, Gretchel Suárez Martínez, Francisco. Rodríguez Alvarado, Adriana Aguirre Traña, Hazel Briones, Paula Pavón, Tania Carazo Rodríguez, Johana Mejía Obando, Socorro del Carmen Bello, Martha Lorena Trujillo, Ana Sánchez, Xochilt Gonzáles, Janneh Balladares and Cenely Benevidez. The complainant reports that the criminal proceedings are continuing, that the company is paying for the supervisors’ lawyer and that the majority of these workers have been dismissed. In this respect, the Committee notes that the Government reports that the inspection confirmed the reported acts of sexual harassment and it was decided to fine the company. The Committee requests the Government to keep it informed of the progress in the criminal proceedings initiated against the members of the trade union’s executive board and other workers and hopes that the dismissals resulting from the union testimony in the inspection concerning sexual harassment will be cancelled and the criminal proceedings against the trade unionists for slander and libel declared inadmissible.
   • Blacklists
10. 1125. Finally, the Committee notes that the complainant alleges that after the trade unionists are dismissed, the employers in the free zones draw up blacklists to prevent them being hired by other companies. The Committee notes that the Government confines itself to stating that no evidence has been found of such blacklists and that under no circumstances do the administrative and judicial authorities allow such practices. The Committee, observes that there is nothing in the Government’s statement to indicate that an investigation was conducted into the specific case. The Committee, recalling that all practices involving the “blacklisting” of trade union officials constitutes a serious threat to the free exercise of trade union rights and governments should take stringent measures to combat such practices [see Digest, op. cit., para. 734], requests the Government to conduct a thorough and independent investigation into the alleged existence of blacklists and to keep it informed in this respect.