Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 359, Marzo 2011

1. 923. The Committee last examined this case at its meeting in November 2009 [see the Committee’s 355th Report, paras 910–937, approved by the Governing Body at its 306th Session]. The Central Workers’ Confederation of Nicaragua (CTN) submitted new allegations and additional information in communications dated 15 and 17 December 2009.
2. 924. The Government sent its observations in communications dated 24 February, 12 March, 10 June and 9 December 2010.
3. 925. 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. 926. At its meeting in November 2009, the Committee made the following recommendations [see 355th Report, para. 937]:
   • (a) As regards the allegation concerning the dismissal of union officials and members of the Workers’ and Employees’ Union of the INSS, the Committee expects that the current legal actions initiated by some of these officials and members will be concluded in the near future, and requests the Government to keep it informed of the final outcome of these legal actions;
   • (b) The Committee urges the Government to make every effort to bring about talks between the parties with a view to the reinstatement, ordered by the judicial authority, of Mr Fidel Castillo Lagos, Minutes Secretary of the Genaro Lazo Union of the Nicaraguan Aqueduct and Sewer Company of Estelí (ENACAL–Estelí) and that the indemnity already paid to Mr Lagos be taken into account in this regard. The Committee also requests the complainant organization to send the names of the other 15 members allegedly dismissed, as requested by the Government in its previous reply, so that the Government can send its observations;
   • (c) As regards the allegations concerning the dismissals of eight officials of the Eastern Services Territorial Unit Workers’ Union (UTSO), nine officials of the ENACAL Granada Workers’ Departmental Union, and five officials of the ENACAL Carazo Workers’ Departmental Democratic Union, the Committee urges the Government: (1) to take measures, including legislative measures if necessary, to ensure that, in future, responsibility for declaring a strike illegal lies with an independent body that has the confidence of the parties involved; (2) to inform it more precisely of the requirements which the organizations are said not to have met, thus leading to the declaration that the strike was illegal which subsequently gave rise to the dismissal of the trade union officials, in order that it may express its view on this matter in full possession of the facts; and (3) to inform it of the outcome of the judicial proceedings initiated by a number of workers at ENACAL–Granada and ENACAL–Carazo. The Committee requests the Government in this regard to inform it whether the trade union officials mentioned by name by the complainant organization have initiated legal action in connection with their dismissals; and
   • (d) The Committee expects that the judicial authority that examines the legal action for reinstatement initiated by the trade union official Ms Maura de Jesús Vivas Ramos, who was dismissed from the Directorate-General of Revenues, will give its ruling in the near future, and requests the Government to keep it informed of the final outcome of these proceedings.

B. The complainant’s new allegations and additional information

1. 927. In its comments of 15 and 17 December 2009, the Central Workers’ Confederation of Nicaragua (CTN-autónoma) states that the Directorate-General of Revenues (DGI) refuses to comply with the ruling handed down on 1 July 2009, by which the judicial authority ordered the reinstatement and/or payment of double compensation to Ms Maura de Jesús Vivas Ramos, Membership Secretary of the Public Employees’ Union in the Directorate-General of Granada (SEPGRADGI). The CTN-autónoma adds that, without even having implemented the judicial ruling in favour of Ms Vivas Ramos, on 24 November 2008 the authorities of the Directorate-General of Revenues (DGI) ordered the dismissal of Mr Ricardo Francisco Arista Bolaños, who had been employed as an auditor A by the Directorate-General of Revenues of Granada since 1 September 2000, and was elected on 8 September 2007 as a spokesperson of the executive committee of the CTN-autónoma.
2. 928. The complainant organization adds that Mr Arista Bolaños, availing himself of his trade union immunity, lodged a formal complaint to the authorities of the Ministry of Labour which, in the first instance, tried to dismiss the complaint by incorrectly invoking article 277 of the Labour Code, against which an appeal was promptly and duly lodged, resulting in an administrative decision nine months later that the dismissal of Mr Arista Bolaños was illegal. An order for his reinstatement was issued, but this was clearly disregarded by the DGI, and the complaint has been pending with the judicial authorities since September 2009.
3. 929. CTN-autónoma states that the Civil and Labour Affairs Chamber of the Eastern District Appeals Court ruled that the appeal lodged by the general legal representative of the Nicaraguan Aqueduct and Sewer Company (ENACAL) was unfounded, thereby confirming as final the decision handed down on 24 October 2008 by the Local Civil and Labour Affairs Court under the jurisdiction of Jinotepe which upheld the complaint filed by the ENACAL Carazo unionized workers affiliated to the CTN. These workers were illegally dismissed on 13 May 2007, and have to date neither been reinstated nor received payment of the amount due to them in law.

C. The Government’s reply

1. 930. In its communication of 12 March 2010, the Government states that Mr Ricardo Francisco Arista Bolaños initiated a legal action for reinstatement with the Managua District First District Labour Affairs Court against the DGI. This case is currently pending and awaits a decision by the judicial authority of first instance. The DGI is nevertheless prepared to comply with the requirements of the judicial authorities once all existing remedies have been exhausted. With respect to the case of Ms Maura de Jesús Vivas Ramos, a final ruling was given in her favour. This ruling was handed down by the district labour affairs judge through the jurisdiction of the City of Granada, and stipulates that the DGI must reinstate Ms Vivas Ramos in her post and on the same terms as before. The institution was unable to comply with the decision since the post that Ms Vivas Ramos used to occupy no longer exists. In this context, it was referred to the judicial authority, in accordance with the provisions of article 46, paragraph 2, of the Labour Code, with respect to the termination of her employment and the calculation of all benefits due to her in relation to such termination, and in accordance with the special law that regulates the actions of the State of the Republic of Nicaragua. It is clear that no violations of labour law have taken place and the parties have availed themselves of their rights under the law at every stage of the labour proceedings initiated in the courts where they have lodged their respective complaints.
2. 931. In its communications of 24 February, 10 June and 9 December 2010, the Government states in relation to the recommendations made in the Committee’s 355th Report, paragraph 937, and on the outcome of current judicial proceedings in connection with the dismissals of the workers of the Nicaraguan Social Security Institute (INSS), that this institution reported that the respective settlements had been paid, including the social benefits to which Mr Sergio Juan Ramón Quiroz, Ms Magda del Carmen Reyes López, Mr Fabricio José Sevilla, Mr Allan Antonio González Torrez, Ms Vilma Isabel Munguia Guillen, Ms Fátima del Rosario Pérez Canales and Mr Josman Octavio Solis Nuñez were entitled. On the other hand, Ercilia Aguilera Centeno and Giany Castillo Tercero and Margarita del Carmen Sánchez Méndez withdrew their legal action for reinstatement. The cases of Alvin Alaniz González, Jazmín del Sagrario Carballo Soto and Rolando Delegado Miranda are still awaiting a ruling of first instance.
3. 932. With regard to Mr Fidel Castillo Lagos, it was reported that compensation payments in lieu of reinstatement were made on 19 May 2008, as prescribed in article 46 of the Labour Code, and, with no other settlement payment outstanding, on 26 March 2010 a letter was sent to the Local Civil and Labour Affairs Court clearly outlining all payments made by the company and received by Mr Fidel Castillo Lagos.
4. 933. As regards the workers of the Nicaraguan Aqueduct and Sewer Company – ENACAL of Granada, the company said that it had paid settlements to the workers and complied with the ruling handed down by the Civil and Labour Affairs Chamber of the Southern District Appeals Court, and no payment was outstanding. It also reported that a ruling was due on a judicial complaint filed by 58 workers.
5. 934. As for the case of the workers of the Nicaraguan Aqueduct and Sewer Company – ENACAL of Carazo, the company reported that it had complied with the order of the local civil and labour affairs judge under the jurisdiction of Jinotepe-Carazo and had reached an agreement with workers and their trade union representative on a four-instalment payment, and they had already received their first instalment.
6. 935. Regarding the cases of Mr Ricardo Francisco Arista Bolaños and Ms Maura de Jesús Vivas Ramos, the DGI stated the following: (1) Mr Arista Bolaños, availing himself of his rights under the labour laws of the Republic of Nicaragua, initiated a legal action for reinstatement with the Managua District First District Labour Affairs Court against the DGI; and (2) as regards Ms Maura de Jesús Vivas Ramos, a final ruling was given in her favour. That ruling was handed down by the District Labour Affairs Court of the City of Granada and stipulates that the DGI must reinstate Ms Vivas Ramos in the same post and on the same terms as before. Given the impossibility of complying with this decision, since the post formerly occupied by Ms Vivas Ramos no longer exists, it was referred to the judicial authority, in accordance with article 46, paragraph 2, of the Labour Code of the Republic of Nicaragua, which reads as follows: “When there is a ruling in favour of reinstatement and the employer fails to comply with the judicial decision, the employer shall pay the worker, in addition to compensation for years of service, a sum equivalent to one hundred per cent of the same.”

D. The Committee’s conclusions

1. 936. The Committee recalls that the complainant organization in the present case had alleged numerous dismissals of trade union officials and members. At its meeting in November 2009, the Committee made a number of interim recommendations.
   • Recommendation (a)
2. 937. At its meeting in November 2009, the Committee requested the Government to inform it of the outcome of the legal proceedings in connection with the dismissal of trade union officials and members of the Workers’ and Employees’ Union of the Nicaraguan Social Security Institute. In this regard, the Committee notes the Government’s information that an appropriate settlement, including social benefits, was paid to seven workers, three workers withdrew the reinstatement proceedings which they had initiated, and a ruling of first instance is due on the cases of Alvin Alaniz González, Jazmín del Sagrario Carballo Soto and Rolando Delgado Miranda. In these circumstances, the Committee requests the Government to keep it informed of the outcome of current legal proceedings.
   • Recommendation (b)
3. 938. The Committee urged the Government to make every effort to bring about talks between the parties with a view to the reinstatement, ordered by the judicial authority, of the trade union official, Mr Fidel Castillo Lagos, Minutes Secretary of the Genaro Lazo Union of the Nicaraguan Aqueduct and Sewer Company of Estelí (ENACALEstelí), and that the compensation already paid to Mr Lagos be taken into account. The Committee notes the Government’s information that the company paid the trade union official in question compensation for non-reinstatement as provided for in article 46 of the Labour Code in May 2008, and that it informed the Local Civil and Labour Affairs Court of this payment on 26 March 2010.
4. 939. The Committee also recalls that, at its 2009 meeting, it requested the complainant organization, as had the Government, to send the names of the other 15 members allegedly dismissed, so that the Government could send its observations. In this regard, given that the complainant organization has failed to provide the information requested, the Committee will not pursue its examination of these allegations.
   • Recommendation (c)
5. 940. The Committee requested the Government to provide information on the outcome of the judicial complaints filed by trade union officials and workers of the ENACAL Granada and ENACAL Carazo companies (in connection with this company, the complainant organization alleges that in December 2009 the workers remained illegally dismissed and had not been reinstated or paid appropriate compensation) as a result of their dismissals. The Committee notes the Government’s information that: (1) the ENACAL Granada company had complied with the ruling handed down by the Civil and Labour Affairs Chamber of the Southern District Appeals Court, paid the settlement to the workers, and a judicial complaint initiated by 58 dismissed workers is still in process; and (2) the ENACAL Carazo company stated that it had complied with the local civil and labour affairs judge’s order and reached a pay agreement with the workers and their trade union representative.
6. 941. Under these circumstances, the Committee requests the Government to keep it informed of the outcome of the current legal proceedings initiated by the dismissed workers of the ENACAL Granada company.
   • Recommendation (d)
7. 942. The Committee requested the Government to keep it informed of the final outcome of the judicial proceedings for reinstatement initiated by the trade union official Ms Maura de Jesús Vivas Ramos, who had been dismissed by the Directorate-General of Revenues (DGI). In this regard, the Committee notes the Government’s information that: (1) a final ruling was given in favour of the trade union official and provides that the Directorate-General of Revenues must reinstate her in the same post and on the same terms as before; (2) it is impossible to comply with this ruling, since the post which she used to occupy no longer exists; and (3) the ruling was referred to the judicial authorities, in accordance with article 46, paragraph 2, which stipulates that when there is a ruling in favour of reinstatement and the employer fails to comply with the judicial decision, the employer must pay the worker, in addition to compensation for years of service, a sum equivalent to one hundred per cent of the same.
8. 943. The Committee also notes that the complainant organization alleges the dismissal of the trade union official Mr Ricardo Francisco Arista Bolaños from the DGI, on 24 November 2008. In this regard, the Committee notes the Government’s information that the trade union official in question initiated legal action for reinstatement with the Managua District First District Labour Affairs Court against the DGI. The Committee requests the Government to keep it informed of the final outcome of these proceedings.
9. 944. More generally, the Committee observes that, in its reply, the Government does not deny that the alleged dismissals referred to in the complaint constituted anti-union discrimination, and that in several of the alleged cases the judicial authorities ordered the reinstatement of trade union officials or members and that there was a failure to comply with those rulings as a result of the payment of compensation prescribed by law. The Committee expresses its concern at the fact that it would appear, even in the cases where it was clear that there had been an anti-union dismissal, that the employer can choose between reinstatement or payment of compensation equivalent to the amount due for the worker’s years of service. In this regard, the Committee recalls that no one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and the persons responsible for such acts should be punished [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 772]. In addition, on a number of occasions the Committee has emphasized that in the event of the dismissal of trade union officials or members on account of their trade union membership or activities, the best solution is the reinstatement of the workers in their posts and that, in cases where an independent competent body determines, for compelling and objective reasons, that reinstatement in that specific post is no longer possible, steps must be taken to ensure that the complainants receive full and adequate compensation and that there are sufficiently dissuasive sanctions in place to deter anti-union dismissals. The Committee requests the Government to ensure that these principles are upheld in the future.
10. 945. Finally, the Committee urges the Government to take measures, including legislative measures if necessary, to ensure that, in future, responsibility for declaring a strike illegal lies with an independent body that has the confidence of the parties involved.