Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Nicaragua (Ratification: 1967)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2022, which concern issues that the Committee addresses in this comment.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, June 2022)

The Committee notes the discussion that took place in the Committee on the Application of Standards at the Conference (hereinunder the Conference Committee) in June 2022 on the application of the Convention by Nicaragua, in which the Conference Committee deplored the persistent climate of intimidation and harassment of independent workers’ and employers’ organizations, noted with concern the allegations of the arrest and detention of employer leaders and urged the Government, in consultation with the social partners to:

• (i)immediately cease all acts of violence, threats, persecution, stigmatization, intimidation or any other form of aggression against individuals or organizations in connection with both the exercise of legitimate trade union activities and the activities of employers’ organizations, and adopt measures to ensure that such acts are not repeated;
• (ii)immediately release any employer or trade union member who may be imprisoned in connection with the exercise of the legitimate activities of their organizations, as is the case of Messrs Michael Healy, Álvaro Vargas Duarte, Jose Adán Aguerri, Luis Rivas and Juan Lorenzo Holmann;
• (iii)promote social dialogue without further delay through the establishment of a tripartite dialogue round table, under the auspices of the ILO, that is presided over by an independent chairperson who has the trust of all sectors, that duly respects the representativeness of employers’ and workers’ organizations in its composition and that meets periodically; and
• (iv)repeal Law No. 1040 on the regulation of foreign agents, the Special Law on Cybercrimes, and Law No. 1055 on the Defence of the Rights of the People to Independence, Sovereignty and Self-determination for Peace, which limit the exercise of freedom of association and freedom of expression.

The Conference Committee recommended that the Government avail itself of ILO technical assistance to ensure full compliance with its obligations under the Convention in law and in practice and that it accept a direct contacts mission to complete a fact-finding mission with full access related to the situation of violation of trade union rights of workers’ organizations and of employers’ organizations’ rights as soon as possible to allow the ILO to assess the situation. It also requested the Government to submit a report to the Committee of Experts before 1 September 2022, communicating information on the application of the Convention in law and practice, in consultation with the social partners.

The Committee notes that the Government submitted a report before 1 September 2022, indicating that it responds to one of the Conference Committee’s recommendations, namely the submission of a report containing information on progress achieved regarding the application of the Convention in law and practice. The Committee deeply regrets that the Government report contains no information on, nor any allusion to, the rest of the recommendations formulated by the Conference Committee. The Committee understands the absence of information in this respect to denote not only an evident failure on the part of the Government to give effect to its recommendations, but also an apparent lack of commitment to ensuring the Government’s standards obligations are respected. The Committee therefore urges the Government, in the strongest terms, in consultation with the social partners, to take each and every one of the measures urged by the Conference Committee referenced above which concern serious and urgent matters that call for immediate action. The Committee urges the Government to report on all the measures adopted to ensure compliance with the recommendations of the Conference Committee and on all progress achieved in the application of those measures, above all in respect of the freeing of any employer or member of a trade union who may have been imprisoned in relation to the exercise of the legitimate activities of their organizations, such as is the case of Messrs Michael Healy, Álvaro Vargas Duarte, José Adán Aguerri, Luis Rivas and Juan Lorenzo Hollman.

The Committee notes the Government’s indication in its report that since 2007 it has been working to restore and protect the rights of workers, including freedom of association, through dialogue and consensus among the tripartite actors to achieve stability and harmonious labour relations. The Committee firmly believes in the value of tripartite social dialogue and in the critical role that it can play in achieving significant progress in respect of the requests made by the Committee and the Conference Committee. The Committee recalls that in its comments to the Conference Committee, the International Organisation of Employers stressed the fundamental need to reconstruct a process of confidence and called on the Government to facilitate social dialogue with the presence of the ILO. The Committee therefore urges the Government to establish the tripartite dialogue round table recommended by the Conference Committee without further delay and avail itself of ILO technical assistance to ensure full compliance with its obligations under the Convention. The Committee also considers it vitally important that the Government should accept, at an early date, the direct contacts mission mentioned above. The Committee hopes that the Government will address the recommendations made and requests it to report on any progress made in this respect.

Article 3 of the Convention. Right of workers’ organizations to organize their activities in full freedom and to formulate their programmes. The Committee recalls that for over a decade it has been referring to the need to take steps to amend sections 389 and 390 of the Labour Code, which provide that collective disputes shall be referred to compulsory arbitration when 30 days have elapsed since the calling of the strike. The Committee notes in this regard that the Government reiterates that the country has a wide legal framework that covers industrial disputes; that it has been reinforcing resolution of conflicts through social dialogue and that, in accordance with the principle of sovereignty, any decision to amend the said sections must emanate from the Nicaraguan people. While noting what the Government indicates, the Committee recalls once again that the imposition of compulsory arbitration to end a strike, beyond the cases in which a strike may be limited or even prohibited, is contrary to the right of workers’ organizations to freely organize their activities and formulate their programmes. In light of the above, the Committee strongly urges the Government to take the necessary measures to amend sections 389 and 390 of the Labour Code in order to ensure that compulsory arbitration is only possible in cases where strikes may be limited or even prohibited, namely in cases of conflict within the civil service relating to officials exercising authority on behalf of the State, in essential services in the strict sense of the term or in the event of an acute national crisis. The Committee requests the Government to provide information on any developments in this regard and firmly hopes that, in the context of the technical assistance mentioned above, progress towards compliance with the Convention will be achieved.

Article 11. Protection of the right to organize. In its previous comment, the Committee took note of the Government’s various initiatives aimed at promoting the right to organize. The Committee notes the Government’s indication that it is continuing to strengthen the right to freedom of association and that, in 2021, 44 new trade union organizations were formed, affiliating 1,158 workers and 997 trade union organizations were updated, bringing together 65,233 workers. The Committee observes that, according to the Government, this statistical information, together with other statistical data on labour issues, is evidence that the country is giving effect to the Convention. While taking due note of this information and these indications, the Committee recalls that the rights conferred upon the employers’ and workers’ organizations protected by the Convention are void of meaning if there is no respect for fundamental freedoms, the right to protection from arbitrary detention and imprisonment and the right to a fair trial by an independent and impartial tribunal, questions referred to at the beginning of this comment. Recalling also that Article 11 of the Convention refers to the need to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organize, the Committee requests the Government to report on initiatives taken to guarantee the exercise of this right for workers and employers, giving information on their results.

The Committee notes with deep concern the lack of action on the part of the Government to follow up on the conclusions of the Conference Committee, which demonstrates a lack of commitment to ensure respect for its obligations under the Convention. The Committee emphasizes in the strongest possible terms the need to immediately cease all acts of violence, threats, persecution, stigmatization, intimidation or any other form of aggression against individuals or organizations in connection with both the exercise of legitimate trade union activities and the activities of employers’ organizations and to immediately release any employer or trade union member who may be imprisoned in connection with the exercise of the legitimate activities of their organizations. It further recalls the utmost need to re-establish genuine and constructive tripartite dialogue without further delay and the CAS request to repeal Law No. 1040 on the regulation of foreign agents, the Special Law on Cybercrimes, and Law No. 1055 on the Defence of the Rights of the People to Independence, Sovereignty and Self-determination for Peace, which limit the exercise of freedom of association and freedom of expression. In light of the above, the Committee considers that this case meets the criteria set out in paragraph 114 of its General Report to be asked to come before the Conference.

[The Government is asked to supply full particulars to the Conference at its 111th Session and to reply in full to the present comments in 2023.]