Informe provisional - Informe núm. 355, Noviembre 2009

1. 910. The Committee last examined this case at its November 2008 meeting [see the Committee’s 351st Report, paras 1051–1098, approved by the Governing Body at its 303rd Session].
2. 911. The Government sent its observations in a communication dated 29 June 2009.
3. 912. 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. Previous examination of the case

1. 913. At its meeting in November 2008, the Committee made the following recommendations [see 351st Report, para. 1098]:
   • (a) As regards the allegation concerning the dismissal of ten officials and 48 members of STEINSS, the Committee requests the Government to inform it: (1) whether the union was consulted about the restructuring which took place in the Institute and which prejudiced the trade union officials and members; and (2) the result of the ongoing legal appeals relating to the dismissals of the trade union officials and members who did not withdraw their legal actions.
   • (b) The Committee requests the Government to inform it of the result of the judicial process initiated by the trade union official, Mr Fidel Castillo Lago, Minutes Secretary of the “Genaro Lazo” Union of the Nicaraguan Aqueduct and Sewer Company of Estelí – ENACAL-Estelí and to send its observations relating to the alleged dismissal of 15 other members.
   • (c) With regard to the allegations relating to the dismissal of eight officials of the UTSO, nine officials of the Enacal Granada Workers’ Departmental Democratic Union and five officials of the Enacal Carazo Workers’ Departmental Democratic Union, the Committee requests the Government: (1) to take measures, including of a legislative character if necessary, so that in future a body independent of the parties and in which they have confidence is responsible for declaring a strike illegal; (2) to inform it more precisely concerning the legal requirements that the organizations did not respect and which led to the strike being declared illegal and the subsequent dismissal of the trade union officials in order to be able to pronounce itself in full knowledge of the facts; and (3) to inform it of the result of the legal claims filed by certain ENACAL-Granada and ENACAL-Carazo workers. The Committee further requests the Government to inform it whether the trade union officials mentioned by name by the complainant organization have initiated legal actions relating to their dismissal.
   • (d) As regards the allegations relating to the dismissal of five officials and 25 members of the ENACAL-DAR Democratic Trade Union, the Committee requests the Government to confirm that all the trade union officials and members concerned have not initiated legal actions.
   • (e) As regards the allegation relating to the dismissal of Mr Kester Giovanni Bermúdez, official of the Chontales Department Independent ENACAL Workers’ Union and eight other workers of the Nicaraguan Aqueduct and Sewer Company of Jugalpa, the Committee requests the Government to indicate whether legal actions have been commenced in this respect.
   • (f) The Committee requests the Government to inform it whether by virtue of the decision of the Inspectorate General of Labour, reported by the Government, the trade union official Ms Maura de Jesús Vivas Ramos has been reinstated in her post in the DGI with payment of wages due.

B. The Government’s reply

1. 914. In its communication of 29 June 2009, the Government states the following with regard to the Committee’s recommendations.
   • Recommendation (a)
2. 915. On 14 February 2007, the Executive Board of the Nicaraguan Social Security Institute (INSS) met and, with administrative Act No. 202/2007, approved a new organizational structure, which involved the abolition of the “Technical Medical Evaluation Unit (UTEM)” and the creation of the “Quality Assurance Directorate (DGC)” as a body of the Health Services Provider Institutions (IPSS). The DGC is subordinate to the General Directorate for Health Services and is the authority responsible for monitoring implementation of existing regulations in the area of quality control and treatment and guidance for beneficiaries, with a view to maintaining the services provided by the IPSS in accordance with the General Health Law No. 423 adopted on 14 March 2002 and its implementing regulations in Decree No. 001-2003 approved on 9 January 2003, and with the Social Security Law and implementing regulation No. 49. The objective is to ensure the correct functioning of the IPSS through follow-up and monitoring of quality standards and indicators.
3. 916. The main function of the DGC is to implement, organize and coordinate with the IPSS various procedures, strategies and standards to facilitate improved health care, health quality management, and guidance and care for patients, on the basis of the integrated health-care model. The studies that have been carried out show that in order to achieve the objectives put forward by the INSS, it is necessary to modify the current staff profile of Medical Supervisory Professionals to Social Work Professionals, which meant a radical change in this area. Before undertaking these changes, approval was obtained from the Public Service Directorate, a state authority which, in accordance with section 111 of the Civil Service and Administrative Career Law (No. 476), is the competent body to authorize restructuring in state institutions.
4. 917. These organizational reforms and restructuring in the INSS had been approved by the INSS executive board which, under the terms of section 12 of the Social Security Law, is the highest executive body and has the following membership: (a) two representatives of the State, namely, an executive president and executive vice-president of the institution; (b) two workers’ representatives with their substitutes, elected by the workers’ organizations; and (c) two employers’ representatives with their substitutes: one for the public sector enterprises and one for the private sector, elected by their respective organizations. It will be noted that the INSS, before terminating the employment contracts of the persons mentioned in the complaint, had obtained the approval of its highest executive body.
5. 918. As regards the results of the current legal proceedings concerning the dismissals of the trade union leaders and members who did not abandon legal action, including Mr Alvin Alaniz González and Mr Sergio Juan Quiroz, the case is still at the stage of receiving evidence and the judge has not yet given a ruling.
   • Recommendation (b)
6. 919. The Government states in relation to the application for reinstatement filed by Mr Fidel Castillo Lago against the Nicaraguan Aqueduct and Sewer Company of Estelí (ENACAL-Estelí), that he was dismissed in accordance with section 45 of the Labour Code on 10 April 2007. He received final net severance pay of 100,664.62 córdobas. He filed an application for reinstatement with the local civil and industrial court on 2 October 2007, and the judge ordered his reinstatement in the same post, on the same terms and conditions as before. Among other reasons, the judge cited the fact that Mr Fidel Castillo Lago had trade union immunity at the time of his dismissal, which was therefore not in keeping with his position as a member of the trade union executive body. ENACAL appealed against the ruling.
7. 920. On 18 December 2007, the civil and labour affairs division of the Estelí Appeals Court upheld the ruling of the local civil and labour judge. ENACAL decided to avail itself of its right under section 46, paragraph 2, of the Labour Code and pay the double compensation required by that provision. Since Mr Fidel Castillo Lago had already received the sum of 100,664.62 córdobas, he was awarded a further sum of 86,330.92 córdobas, a sum which included the compensation referred to in section 46 of the Labour Code. In February 2008, Mr Fidel Castillo Lago was informed that a cheque made out to him was available at the central pay office of ENACAL, for the aforementioned sum, but he has not to date collected the cheque. According to legislation and a considerable body of jurisprudence, when a worker receives the social benefits owed to him or her at the end of an employment contract, the only legal action that can be initiated is that of enforcing payment in the event that the employer fails to pay in full, or in cases where reinstatement proceedings are invalid because severance pay has already been received.
8. 921. As regards the alleged dismissals of 15 other union members, the identity of the individuals concerned is not known because the complainant organization has failed to supply relevant details.
   • Recommendation (c)
9. 922. The Government reiterates the information already provided. It also maintains that the compliant organization does not indicate which of the organization’s members have initiated legal action in connection with this dispute at the Nicaraguan Aqueduct and Sewer Company (ENACAL-Granada-Carazo).
   • Recommendation (d)
10. 923. The Government reports that it has no knowledge of any notice regarding any legal claim that might have been filed against ENACAL by officials and members of the democratic trade union of ENACAL.
    • Recommendation (e)
11. 924. The Government states that it has no information concerning any legal action against the Nicaraguan Aqueduct and Sewer Company (ENACAL-Juigalpa) initiated by Mr Kester Giovanni Bermúdez, an official of the Independent ENACAL Workers’ Union, Chontales Department, or by eight other workers employed by ENACAL-Juigalpa.
    • Recommendation (f)
12. 925. As regards the case of Ms Maura de Jesús Vivas Ramos in her capacity as official of the Public Employees’ Union in the Directorate-General of Revenues of Granada, the Government states that the Managua departmental labour inspectorate (services sector), on 10 January 2008, issued a resolution guaranteeing her constitutional rights and trade union immunity. Ms Vivas Ramos subsequently applied to the courts for reinstatement in her post and payment of wages owed to her, and a ruling on the case is due.

C. The Committee’s conclusions

1. 926. The Committee recalls that the complainant organization in the present case had alleged numerous dismissals of trade union leaders and members, as well as the exclusion of trade unions from the collective bargaining process in a number of public institutions and state enterprises. At its meeting in November 2008, the Committee made a number of interim recommendations.
   • Recommendation (a)
2. 927. At its meeting in November 2008, the Committee requested the Government to inform it whether the Workers’ and Employees’ Union of the Nicaraguan Social Security Institute (STEINSS) had been consulted about the restructuring which took place and which allegedly prejudiced ten trade union officials and 48 members. In this respect, the Committee notes that: (1) on 14 February 2007 the executive board of the INSS met and approved the new organizational structure; (2) the changes had been approved by the Public Service Directorate (the body responsible for authorizing restructuring in state institutions); (3) these organizational changes and restructuring in the Institute had been authorized in advance by the Institute’s executive board, which includes two representatives of the State, two workers’ representatives elected by workers’ organizations, and two employers’ representatives; and (4) before terminating the employment contracts of the workers named in the complaint, the Institute had obtained the approval of its highest executive body. Taking this information into account, and given that consultations did take place, the Committee will not pursue its examination of this allegation.
3. 928. The Committee also requested the Government to inform it of the outcome of the judicial proceedings in connection with the dismissals of trade union officials and members who did not withdraw their legal actions. The Committee notes the Government’s information according to which the legal proceedings involving, among others, Mr Alvin Alaniz González and Mr Sergio Juan Quiroz, are at the stage of receiving evidence. Under these circumstances, the Committee expects that the current legal proceedings will be concluded in the very near future, and requests the Government to keep it informed of the final outcome.
   • Recommendation (b)
4. 929. The Committee requests the Government to inform it of the result of the judicial process under way in connection with the dismissal of the trade union official Mr Fidel Castillo Lago, Minutes Secretary of the Genaro Lazo Union of the Nicaraguan Aqueduct and Sewer Company of Estelí (ENACAL-Estelí). The Committee notes the Government’s information that: (1) on 2 October 2007, the local civil and labour judge ordered the reinstatement of Mr Fidel Castillo Lago, citing among other reasons the fact that he enjoyed trade union immunity at the time of his dismissal, which was not, therefore, in keeping with his position as a member of the union’s executive body; (2) the company appealed against that ruling and, on 18 December 2007, the civil and labour division of the Estelí appeals court upheld the local court’s ruling; (3) the company decided to avail itself of its right under section 46, paragraph 2, of the Labour Code and implement the double compensation payment; and (4) in February 2008, Mr Fidel Castillo Lago was informed that a cheque had been made out in his name but he has, to date, not collected it.
5. 930. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures, and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions, and that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can, in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 791 and 799]. Under these circumstances, the Committee, taking into account these principles, and noting that the judicial authority has ordered the reinstatement of the union official Mr Fidel Castillo Lagos, that his dismissal was not in keeping with his position as a union official, and also that according to the Government the union official in question has not collected the compensation, the Committee urges the Government to make every effort to bring about talks between the parties in order to obtain the reinstatement ordered by the judicial authority and that the indemnity already paid to Mr Lagos be taken into account in this regard.
6. 931. In addition the Committee requested the Government to send its observations on the alleged dismissals of 15 other union members. The Committee notes the Government’s statements to the effect that it does not know who these 15 members are, since no details have been provided. In these circumstances, and as the Government had requested in its previous reply, the Committee requests the complainant organization to communicate the names of the 15 allegedly dismissed members of the Genaro Lazo Union, so that the Government can send its own observations.
   • Recommendation (c)
7. 932. As regards the allegations concerning the dismissal of eight officials of the Eastern Services Territorial Unit Workers’ Union (UTSO), nine officials of the ENACAL-Granada Workers’ Departmental Democratic Union, and five officials of the ENACAL-Carazo Workers’ Departmental Democratic Union, the Committee requested the Government: (1) to take measures, including of a legislative character if necessary, so that, in future, a body independent of the parties, and in which they have confidence, would be responsible for declaring a strike illegal; (2) to inform it more precisely concerning the legal requirements that the organizations did not respect and which led to the strike being declared illegal and the subsequent dismissal of the trade union officials, in order to be able to pronounce itself in full knowledge of the facts; and (3) to inform it of the results of the legal claims filed by certain ENACAL-Granada and ENACAL-Carazo workers. In this regard, the Committee requested the Government to inform it whether the trade union officials mentioned by name by the complainant organization had initiated legal actions relating to their dismissal.
8. 933. In this regard, the Committee notes that the Government reiterates the observations sent at the time in relation to these allegations, and that the Government adds that the complainant organization does not indicate which of the union members have initiated legal actions in relation to the dispute at the Nicaraguan Aqueduct and Sewer Company (ENACAL). The Committee recalls that, when it examined these allegations at its meeting in November 2008, it noted that “on 7 June 2007, certain ENACAL-Granada workers filed a claim for reinstatement in the District Civil and Industrial Court in the department of Granada” and that “on 11 June 2007, ENACALCarazo workers filed a legal appeal in Jinotepe” [351st Report, para. 1090]. Under these circumstances, the Committee reiterates the recommendations it made at the time including those concerning the declaration of a strike to be illegal, and urges the Government to send the information requested without delay.
   • Recommendation (d)
9. 934. The Committee requested the Government to confirm that all the five trade union officials and 25 members of the ENACAL-DAR Democratic Trade Union who had been dismissed had not initiated legal actions. In this regard, the Committee notes the Government’s statements to the effect that it has no knowledge of any notice of legal action filed by the trade union officials or members in question against the Nicaraguan Aqueduct and Sewer Company (ENACAL).
   • Recommendation (e)
10. 935. The Committee requested the Government to indicate whether legal actions had commenced in connection with the alleged dismissal of Mr Kester Giovanni Bermúdez, official of the Independent ENACAL Workers’ Union, Chontales Department, and eight other workers of the Nicaraguan Aqueduct and Sewer Company of Juigalpa. The Committee notes that according to the Government, it has no information on any legal action in this regard. Taking this information into account, the Committee will not continue its examination of these allegations unless the complainant organization provides additional information on any legal actions that may have been initiated.
    • Recommendation (f)
11. 936. The Committee requested the Government to inform it whether by virtue of the decision of the Inspectorate General of Labour, reported by the Government, the trade union official Ms Maura de Jesús Vivas Ramos had been reinstated in her post in the DGI with payment of wages due. In this regard, the Committee notes the Government’s information that following the decision of the Inspectorate-General, Ms Maura de Jesús Vivas Ramos initiated legal action for reinstatement and a ruling in the case is due. Under these circumstances, the Committee expects that the judicial authority concerned will hand down a ruling in the near future, and requests the Government to keep it informed of the final outcome of these proceedings.