Rapport intérimaire - Rapport No. 323, Novembre 2000

1. 397. The Committee examined this case at its meeting in March 2000 and on that occasion presented an interim report to the Governing Body (see 320th Report, paras. 735-746, approved by the Governing Body at its 277th Session in March 2000). The Government sent its observations in a communication dated 7 June 2000.
2. 398. 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. 399. In its previous examination of the case concerning allegations of unjustified dismissals of trade union officials, the Committee made the following recommendations (see 320th Report, para. 746):
2. The Committee requests the Government to ensure the reinstatement of trade union leader Juan Osabas Varela and to send its observations on the alleged dismissals of the other members of the executive committee of the trade union at the El Relámpago plantation.
3. The Committee requests the Government to inform it of any ruling given on the application for reinstatement and payment of back wages presented by the trade union officials at the Emma plantation (Mr. Bayardo Manguía Fuentes and Mr. Manuel de Jesús Canales).
4. B. The Government's reply
5. 400. In its communication of 7 June 2000, the Government states that as regards Mr. Juan Osabas Varela, article 129 of the Political Constitution provides for the separation of powers, and under the terms of article 159 the judiciary alone has the power to hand down and enforce legal rulings. As the Committee was informed before, the Chinandega District Labour Inspectorate in a decision dated 11 June 1998 rejected the application for the dismissal of Mr. Juan Osabas Varela because it considered that there were no grounds for dismissal. However, the parties to the dispute are obliged to exhaust the legal means provided for under legislation for the enforcement of rulings or decisions, as established under article 46 in fine of the Labour Code. Since no other workers were said to have been dismissed from the El Relámpago plantation, no observations were sent in this regard.
6. 401. The Government adds that as regards the Committee's recommendation (b), decisions by the Chinandega District Labour Inspectorate and a ruling of the El Viejo Court ordered the reinstatement of Mr. Bayardo Munguía Fuentes and Mr. Manuel de Jesús Canales and payment of back wages owed to them; as indicated above, they must exhaust the available legal means for enforcing the ruling and/or decisions in accordance with article 46 in fine of the Labour Code.

C. The Committee's conclusions

1. 402. In its previous examination of the case, when it considered allegations concerning unjustified dismissals of trade union officials, the Committee requested the Government to ensure the reinstatement of the trade union official Mr. Juan Osabas Varela, to send its observations on the alleged dismissals of the other members of the executive committee of the trade union at the El Relámpago plantation, and to inform it of any ruling handed down on the claim by the trade union officials at the Emma plantation, Mr. Bayardo Munguía Fuentes and Mr. Manuel de Jesús Canales, for reinstatement and payment of back wages.
2. 403. Firstly, the Committee wishes to draw the Government's attention to the following principles relating to acts of anti-union discrimination against trade union officials and members: "The government is responsible for preventing all acts of anti-union discrimination", and "In cases of the dismissal of trade unionists on the grounds of their trade union membership or activities, the Committee has requested the government to take the necessary measures to enable trade union leaders and members who had been dismissed due to their legitimate trade union activities to secure reinstatement in their jobs and to ensure the application against the enterprises concerned of the corresponding legal sanctions" (see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, paras. 738 and 756).
3. 404. With regard to the reinstatement of the trade union official Mr. Juan Osabas Varela at the El Relámpago plantation, the Committee notes the Government's statement to the effect that, as it informed the Committee on a previous occasion, the Chinandega District Labour Inspectorate refused the application to dismiss the official in question because it considered that there were no grounds for dismissal, and that it was the responsibility of the parties concerned to exhaust all available legal means of enforcing any ruling or decision. In this regard, the Committee deeply regrets that the Government has not taken the necessary measures to ensure the reinstatement of the trade union official Mr. Juan Osabas Varela - whose dismissal was overruled two years ago by the administrative authorities - which the Committee had requested at its meeting in March 2000. Under these circumstances, the Committee urges the Government to ensure that Mr. Juan Osabas Varela is reinstated in his post and that any back wages owed to him are paid. The Committee requests the Government to keep it informed in this regard.
4. 405. As regards the alleged dismissal of the other members of the executive committee of the trade union at the El Relámpago plantation, the Committee notes the Government's statement to the effect that no other executive committee members have been dismissed apart from Mr. Varela. Under these circumstances, noting that the complainant has not provided any specific details (names, posts held, etc.) of these alleged dismissals, the Committee will not pursue its examination of this allegation.
5. 406. As regards the court application brought by the trade union officials of the Emma plantation, Mr. Bayardo Munguía Fuentes and Mr. Manuel de Jesús Canales, in connection with their dismissals, the Committee notes that there have been decisions by the Chinandega District Labour Inspectorate and a ruling by the El Viejo Court ordering the reinstatement of the officials in question and payment of any back wages owed to them; the officials must exhaust available legal means of ensuring that the decisions and/or ruling are enforced. In this regard, noting that both the administrative and the judicial authorities have ordered the reinstatement of the union officials dismissed at the Emma plantation, the Committee urges the Government to ensure that Mr. Bayardo Munguía Fuentes and Mr. Manuel de Jesús Canales are reinstated in their posts and any back wages paid. The Committee requests the Government to keep it informed of any measures taken in this regard.