Observation (CEACR) - adoptée 2000, publiée 89ème session CIT (2001)

The Committee notes the Government’s report. It again stresses that certain provisions of the Labour Code of 1996 (Act No. 185 of 30 October 1996), of the Regulation on trade union associations of 1997 (Decree No. 55-97) and of the Civil Service and Administrative Careers Act of 1990 (Act No. 70 of March 1990) call for the following comments:

(1)  the suspension, due to the failure to adopt implementing regulations, of the Civil Service and Administrative Careers Act of 1990, section 43(8) which envisages the right to organize, strike and collective bargaining of public servants;

(2)  restrictions on the access of foreign nationals to trade union office (section 21 of the Regulation on trade union associations of 1997);

(3)  restrictions on the functions of federations and confederations (section 53 of the Regulation on trade union associations of 1997);

(4)  the possibility of submitting a dispute to compulsory arbitration when 30 days have elapsed from the calling of the strike (sections 389 and 390 of the Labour Code); and

(5)  grounds on which a worker may lose her or his trade union membership, which are left to the discretion of the public authority (section 32 of the Regulation on trade union associations of 1997).

With regard to the suspension of the Civil Service and Administrative Careers Act of 1990, the Committee notes that, according to the Government, the preparation of new legislation in the same field is being examined in the context of the modernization of the State. The Committee regrets to observe that public servants are denied in practice their fundamental rights under this Convention. The Committee requests the Government to recognize the right of public servants to establish organizations to further and defend their interests in accordance with Article 2 of the Convention, and to send it a copy of the new legislation as soon as it is adopted.

In relation to the restrictions on the access of foreign nationals to trade union functions, set out in section 21 of the Regulation on trade union associations, the Committee notes that, according to the Government’s indications, in order to be a member of an employers’ or workers’ organization, it is necessary for the person concerned to have the qualities required by the law, which does not specify whether or not it is a requirement to have Nicaraguan nationality unless so provided by the Constitution or rules of the workers’ organization (sections 21 and 22 of the Regulation on trade union associations). The Committee recalls that, by virtue of Article 3 of the Convention, workers’ organizations shall have the right to elect their representatives in full freedom. It also recalls that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country (see General Survey on freedom of association and collective bargaining, 1994, paragraph 118).

With reference to the restrictions on the exercise of the right to strike by federations and confederations, the Committee notes that, under the terms of section 37 of the Regulation on trade union associations of 1997, "federations shall be subject to the same rules and obligations as trade unions, with the specific characteristics deriving from the different nature of their organization, and shall enjoy the same prerogatives". However, the Committee notes that, by virtue of section 48 of the same text, "confederations shall be governed by all the provisions respecting federations, except for specific provisions governing them", while section 53 confirms that "in labour disputes, federations and confederations shall only intervene to provide advice and the moral or economic support needed by the workers concerned". The Committee recalls that, in accordance with Articles 3, 5 and 6 of the Convention, workers’ organizations, and the federations and confederations which they establish or join, shall have the right to organize their activities and to formulate their programmes.

In relation to the maintenance of compulsory arbitration in sections 389 and 390 of the Labour Code when 30 days have elapsed from the calling of the strike, the Committee notes the Government’s comments in its report to the effect that this cannot resolve an economic crisis after this time period has elapsed. On these grounds, taking into consideration the provisions of section 247 of the new Labour Code (the exercise of the right to strike in public services and services of collective interest may not be extended to situations which endanger the life or safety of the population), the Committee considers that, once this time period has elapsed, the dispute is referred to a compulsory arbitration procedure, with the subsequent award only being binding on the parties where it is accepted by all of them. The Committee also considers that such an award should be binding only in cases in which the strike has been called in an essential service in the strict sense of the term, or in the context of an acute national crisis.

The Committee hopes that the Government will continue making efforts to bring the provisions of sections 389 and 390 of the Labour Code of 1996, and sections 21, 32 and 53 of the Regulation on trade union associations of 1997 into conformity with the requirements of the Convention. It requests the Government to provide information in its next report on any progress achieved in this respect.