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

Individual Case (CAS) - Discussion: 2023, Publication: 111st ILC session (2023)

Discussion by the Committee

Government representative – On behalf of the State of Nicaragua, I refer to the 2023 report of the Committee of Experts in which it notes the observations of the International Organisation of Employers (IOE) and the ITUC, and reiterates the comments made in the discussion held in the Conference Committee on the Application of Standards in June 2022 in relation to the application of the Convention by Nicaragua. With reference to these comments, in which the Committee of Experts urges the Government to give effect to the recommendations and conclusions of the Conference Committee and to provide information in consultation with the social partners on the measures adopted in this context, the State of Nicaragua considers that it is regrettable and unacceptable for the Conference Committee to take up this subject once again when it was addressed and clarified at the 110th Session of the International Labour Conference. It is clear that an attempt is being made to link a subject that is not related to the spirit of the Convention, as set out in the Constitution and Standing Orders of the ILO, thereby once again demonstrating interference and the politicization of matters that are not related to labour.

We refute the instrumentalization and politicization of the ILO, through comments and interventions with a clear political bias which damage the credibility of the House and its Constitution. We condemn the fact that the present Committee is the stage for perverse interests with a view to interfering in the internal affairs of Nicaragua for the purpose of undermining the peace, sovereignty and labour and social stability of Nicaraguan families.

The State of Nicaragua, in relation to the recommendation to amend sections 389 and 390 of the Labour Code, recalls that, in accordance with the principle of sovereignty established in the Political Constitution, we have always held and reaffirm that the decision rests with the people of Nicaragua, and not in recommendations that affect the rights granted to Nicaraguan families.

The State of Nicaragua ensures compliance with the Political Constitution, all national labour laws and the international Conventions of the ILO ratified by Nicaragua for the benefit of workers and is continuing to strengthen dialogue and the right to freedom of association with Nicaraguan workers with a view to ensuring the full exercise of the right to organize their activities and formulate their programmes in full freedom, thereby giving effect to the right of workers to participate in the management of enterprises through trade unions. We add that we are a responsible State under international law and that we have fully complied with the requirement to provide reports on this subject, as set out in articles 19 and 22 of the Constitution. We fulfil our financial obligations in respect of the Organization, of which we have been a Member since its foundation, despite the unlawful coercive measures fomented by certain Government Members of the ILO.

And yet, in Nicaragua, women and men Nicaraguan workers benefit from legal provisions that enable them to strengthen dialogue and consensus in the event of labour disputes or strikes with a view to ensuring stability of employment as a very important strategy to achieve progress in the eradication of poverty and the defence of labour and social peace in our country. A clear illustration of the harmonious social dialogue between workers and employers in Nicaragua is the recent adoption of an increase of 10 per cent in the minimum wage.

We reiterate that the Government of National Unity and Reconciliation does not accept and will not accept the use of this mechanism to continue destabilization campaigns and that we are continuing to restore the rights of Nicaraguan families, including the right to employment stability, freedom of association and social peace and justice.

Employer members – I thank the Government of Nicaragua for its appearance today, and for the information provided to the Committee. Nevertheless, we refute several of the arguments put forward by the Government representative this afternoon.

Indeed, we have before us a case involving a fundamental Convention of this Organization. We are faced with a case that has already been discussed on various occasions and on which the Committee of Experts has provided comments.

This year, the Committee of Experts has once again made comments as there has been no change in the situation denounced by the IOE on 1 September 2021, and indeed the situation is worse in certain respects. The observations have taken into account the comments made in 2022 by the IOE and the ITUC, and we are once again examining observations in 2023 in relation to the State of Nicaragua and the Convention, of which we will soon be celebrating the 75th anniversary of its adoption. The Committee of Experts tells us, in brief, that it deeply regrets that the Government’s report contains no information on, nor any allusion to, the recommendations made by the present Committee in 2022, which is a matter of concern to us. The only thing that the Government of Nicaragua has done is inform us of certain progress in relation to the application of the Convention. We are therefore concerned at this attitude of ignoring the recommendation made by the Committee, a supervisory body of the ILO that is tripartite in composition. This therefore denotes an apparent lack of action and an apparent absence of commitment to ensure respect for these standards-related obligations which have been incumbent upon the Government of Nicaragua since 31 October 1967 by virtue of its ratification of the Convention.

The Committee of Experts also urged the Government, in consultation with the social partners, to take each and every one of the measures urged by the Conference Committee last year, which concern serious and urgent matters.

The Committee of Experts called for 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, in respect of which we have not received any justification or explanation whatsoever from the Government. It also requested the Government to establish the tripartite dialogue round table recommended by the Conference Committee in 2022 without further delay and to accept at an early date the direct contacts mission.

With reference to Article 11, the Committee of Experts has recalled that the rights conferred upon the employers’ and workers’ organizations protected by the Convention are void of meaning in the absence of respect for fundamental freedoms: such as the right to protection against arbitrary detention and imprisonment; and the right to a fair trial by an independent and impartial tribunal; and requested the Government of Nicaragua to report on the measures adopted. Up to now, in relation to a case which in the view of the Employers’ group is serious and urgent, we have not received any reply on this situation from the Government of Nicaragua.

This attitude by the Government is serious, in our view, because it is resulting in a crisis in the work of the ILO supervisory bodies, which are tripartite in composition, and the conclusions that they adopt are therefore approved with the consensus of the social partners in the Committee. It is therefore of no avail to make allegations when the provisions of ILO Conventions, Recommendations and standards are unfavourable and to avoid taking action when the comments of the supervisory bodies do not fit in with our interests and situations. This is a matter of concern and means that, once the case has been examined, we will be emphatic in reiterating many of the conclusions reached by this Committee last year, with the corresponding renewed emphasis.

According to several international and Nicaraguan human rights bodies, acts of persecution and intimidation are persisting in the State of Nicaragua which are tantamount to the criminalization of any expression of dissidence and of freedom of expression, including through the detention and prosecution of members of civil society under charges and procedures of questionable legality. Moreover, these bodies emphasize the adoption of a series of laws which have resulted in the closure of important civic and democratic spaces in violation of international standards on these subjects.

With reference to the first of these points, a series of social leaders, among others, have been imprisoned, and we wish to place emphasis on the situation of José Adán Aguerri Chamorro, former President of the Higher Council for Private Enterprise (COSEP), as well as the threats, intimidation, persecution and reprisals against Micheal Edwin Healy Lacayo and Mr Vargas, among others, who are officers of the COSEP, as well as the violent seizure of Mr Healy’s ranch on 17 June 2018 by 15 armed persons with their faces covered who took possession of his private property. In view of this situation, in respect of which, in light of its gravity, I recall that the ILO Director-General in two communications in 2022 called on the Government of Nicaragua to provide information concerning the arbitrary detention of José Adán Aguerri Chamorro, as well as the other cases, and on 21 October 2021 concerning the last President of the COSEP, Micheal Healy, and his Vice-President, Álvaro Vargas.

Acts of interference and threats have also been made against the property of the COSEP. Charges have been made on grounds of fiscal terrorism, a mechanism used by the Government against employers who, as opponents, are subject to charges for the crime of tax fraud. In relation to the land seizures, defamation campaigns and persecution of the COSEP, we would like to refer in particular to the level that this situation relating to the COSEP has reached with Ministerial Decisions Nos 26 and 27 of 2023, through which the Minister of the Interior revoked the legal personality of 19 employers’ organizations, including the COSEP, on the grounds of failure to comply with the laws regulating them. The legal opinion on which these administrative acts are based indicates that the organizations did not complete the process of validating their registration, there were inconsistencies in the information provided and unjustified changes in their accounts. The opinion claims that, through these acts, they were not adopting policies of transparency, even though the comments made refer exclusively to 2022. It was published on 6 March 2023 in the Gaceta Oficial.

The administrative dissolution of the COSEP, by decision of the Government, is in flagrant violation of the provisions of Article 4 of the Convention, which provides that workers’ and employers’ organizations shall not be liable to be dissolved or suspended by administrative authority.

Not only was its legal personality revoked, in violation of the Convention, but in various cases the Government seized the property and froze the bank accounts of the chambers that had been dissolved. Furthermore, on 9 February 2023, the Court of Appeal of Managua ordered the immediate deportation of 222 political prisoners to the United States of America. On the following day, they were declared traitors of the country and deprived of their Nicaraguan nationality. On 15 February 2023, another 94 persons were deported to the United States, including two Presidents and a Vice-President of COSEP, whose nationality was also revoked.

The United Nations High Commissioner for Refugees (UNHCR) has expressed concern at this situation. It indicates that the recent legislative reforms in Nicaragua allow citizenship to be revoked on arbitrary grounds and are contrary to Nicaragua’s obligations under international and regional human rights law. International law prohibits the arbitrary deprivation of nationality, including on racial, ethnic, religious or political grounds. The exercise of fundamental rights, including freedom of expression, freedom of assembly or other rights associated with political views, can never justify the deprivation of nationality.

The UNHCR called on Nicaragua, which is party to the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, to respect its international obligations to ensure the enjoyment of the right to nationality and to take measures to prevent and eradicate statelessness. We are therefore confronted by a serious case and, above and beyond the conclusions that we may adopt in the Committee, the Employers’ group in any case reserves the right and does not set aside the application of any other instrument available through the ILO Constitution to defend the situation of employers in Nicaragua and to endeavour to rectify the flagrant violation of the Convention by the Government of Nicaragua

Worker members – This is the second consecutive time that the Committee has considered the lack of application of the Convention by the Government of Nicaragua. As the Committee of Experts indeed noted, the Government reports contain no information or reference to nearly all the recommendations by the Committee last year, with one exception.

In this regard, we start by urging the Government to provide the Committee of Experts with all information on any measure it may have taken to ensure compliance with the recommendations. Before going into any of the specific points, we also again want to reiterate the basic principle that all governments must respect the right to freedom of association. We must emphasize, recalling the Committee of Experts, that the right to freedom of association is emptied of all meaning if there is no respect for fundamental human rights, the rule of law and civil liberties. We urge the Government to provide the Committee of Experts with all the material information regarding the charges brought against the leaders, the legal or judicial proceedings instituted and the outcome of such proceedings.

We must stress, as the Committee of Experts has done, the crucial role that tripartite social dialogue can play in achieving significant progress at the national level and, in this sense, the Worker members also request the Government to facilitate social dialogue with the presence of the ILO. We reiterate our recommendation last year to urge the Government to establish a tripartite dialogue round table without further delay and to avail itself of ILO technical assistance to ensure full compliance with its obligations under the Convention.

On legislative matters, the Committee of Experts has insisted on the need 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, mainly in cases of conflict within the civil service relating to officials exercising authority on behalf of the State, or in essential services in the strict sense of the term, or in the event of an acute national crisis.

The right to strike, as an intrinsic corollary of the fundamental right of freedom of association, is crucial for millions of women and men around the world to assert and defend collectively their economic and social rights, including the right to just and favourable conditions of work and the right to work in dignity and without fear of intimidation and persecution. The Worker members expect the Government to take all necessary measures with the technical assistance of the ILO to amend sections 389 and 390 of the Labour Code.

We note with interest the Government’s efforts to strengthen the rights to freedom of association and, according to the information they provided, 44 new trade union organizations were formed in 2021, affiliating 1,158 workers, and 997 trade union organizations were updated, bringing together over 65,000 workers. Nevertheless, the Worker members highlight that the climate of violence, coercion and threats of any type aimed at workers’ and employers’ organizations does not encourage the free exercise and full enjoyment of the rights and freedoms set out in the Convention.

In this regard, as also emphasized by the Committee of Experts, the Worker members call on the Government to cease all acts of violence, threats, persecution, stigmatization and intimidation in relation to the exercise of both legitimate trade union activities and the activities of Employers’ organizations. We urge the Government of Nicaragua to provide all the information requested by the Committee of Experts in this regard and, with the technical assistance of the ILO, to take all the necessary measures to comply with its recommendations.

Employer member, Nicaragua – I am speaking as a representative of private employers in Nicaragua, without forgetting that there was indeed an organization which, as a result of its actions, is in its current state.

We acknowledge the work that is being carried out at this session, and I am here representing the employers of the Nicaraguan Employers’ Organization and as an accredited titular member of the country’s tripartite delegation. We have come here to continue and contribute to the ongoing work on subjects relating to labour, wages and occupational safety and health, thereby giving effect to tripartism in our country. You can see here that we are representing employers who have been running businesses for over 30 years and who have never belonged to the so-called organization that has been mentioned, the COSEP, and we have been working independently to develop the Nicaraguan economy.

In this forum, we have analysed the report on the application of international labour standards, in which it is indicated that Nicaragua is not in compliance with the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). In this regard, I have heard various public officials and Employer members make accusations that amount to little more than political statements that are ill-informed, ill-intentioned and even destructive, based on unreliable information, and which even hide behind the misuse of serious institutions such as this Organization and other human rights bodies, whose focus is unfortunately politicized, and not focussed on the primary objective, which is the organization of work under conditions that enable our countries to develop with equity and labour justice.

This practice has been used repeatedly; we saw it implemented in 2019, when I called for corrections to be made and for a positive focus on these matters for the benefit of our countries, which are mainly developing countries.

Employers’ meetings are currently raising matters that are not in line with the national situation in relation to employers’ organizations, and they have referred to the economy, social issues and issues related to the impact of the failed coup of April 2018. It was a disgrace that, ignoring the approach adopted by our country to security for its citizens, which was exemplary in Latin America, and the sustained annual economic growth of 5.2 per cent over several years, as recognized by the World Bank, in April 2018, with the participation of existing employers’ representatives, a barbaric act was committed which was harmful to our enterprises in general, and those represented by that organization.

In addition to this destructive episode, they have failed to refer to the pandemic that hit us in 2019 and 2020, and two devastating hurricanes, Eta and Iota.

We as employers wish to point out that, together with the productive sector, which has never been held back, and through business investment, the labour of the workforce and appropriate Government policies, we have succeeding in restoring the work dynamic and achieving growth in production, with investments in road infrastructure, bridges, production routes and modern hospitals, creating one of the best health networks in Central America. Other projects include the provision of drinking water, sewerage systems, treatment networks, strategic energy projects, the construction of sports centres across the country, and more. Private enterprises have participated in all these initiatives, including our member enterprises and others, at both the national and international levels.

There are, however, persistent voices that refer to the disappearance of some businesses and organizations, including the previously referred to COSEP, to claim that there is no freedom of association and other falsehoods that do not reflect the reality in the country. They fail to acknowledge that many enterprises disappear as a result of their own actions, as happens with poorly managed enterprises, and others that do not fulfil their legal obligations, such as taxes, social security and legal matters.

Nicaragua is a democratic developing country, and it is our duty to comply with the legal system that adopts laws. Employers in Nicaragua are represented by the Association for the Promotion of the Development and Sustainability of Nicaragua (APRODESNI), and the National Confederation of Small Industry (CONAPI), covering micro, small and medium-sized enterprises, which account for between 80 and 85 per cent of the Nicaraguan economy, and which I have the honour of representing. It is not true that the organization to which reference has been made, of other employers, is the most representative in the country.

It must be made clear that, while some organizations, such as that one, are backed by international recognition and do not enjoy due recognition at the national level because they have usurped the representation of employers. We emphasize that the representation of Nicaraguan employers lies in the organizations referred to previously.

I therefore call on my employer colleagues here, the workers and trade unions that are present, and the governments accompanying us here, to understand the situation in our country, our history and the damage caused to our enterprises as a result of ill-intentioned information, as Nicaragua is under pressure from a number of powerful countries and their organizations, including international financial institutions, such as the World Bank, the International Bank for Reconstruction and Development, the International Monetary Fund, the European Investment bank and others, which have cancelled the foreign investment that our country needs.

All of this is limiting national economic development, the well-being of citizens and business growth. With reference to the court cases, regrettably they have their roots in compliance with laws, whether in our country, Mexico or the United States, where they are applied with greater severity.

Our enterprises and employers’ organizations are continuing to work, contributing to national economic development, and we will make every effort to keep you informed here, as we have been doing.

Moreover, any technical assistance and visits to our country will be well received, on condition that they are requested and in agreement with the Nicaraguan tripartite partners, which are fully functioning.

As in 2019, we call on the ILO to review its procedures, its way of seeing things, to avoid political bias that may distort the reality in our country.

Worker member, Nicaragua – It is incomprehensible why we are before this Committee, dealing with a case that clearly does not reflect the real labour situation. We believe that it is a political decision by some representatives who are ignorant of and certainly do not live in the real situation in Nicaragua. This Committee is once again surprised by the arguments presented, which are taken from sources that are far from impartial and, on the contrary, are mechanisms intended to attack our country through the misnamed economic sanctions driven by those who consider themselves to be the masters of the world.

In Nicaragua, there is full freedom to organize, but there are also rules and regulations that we all must respect. Freedom must not be confused with licentiousness or anarchy. The free exercise of the right to organize must not be understood as impunity to commit crimes or as being above all laws.

In Nicaragua, no union leader is persecuted or arrested for freely exercising the right to represent union interests. There is no persecution for having different ideas or points of view. Undermining the stability of the country and, worse yet, seeking foreign intervention to interfere in our internal affairs, irrespective of its origin, is a crime punishable by our laws. Any differences must be resolved through dialogue round tables and agreement sought. Therefore, the written information has nothing to do with the real situation. In Nicaragua, there are no political prisoners, and the cases of those who are imprisoned for exercising trade union representation or thinking differently have followed due process, in accordance with the law when individuals have committed crimes against peace, human security and the national economy.

Most Nicaraguans love Nicaragua. We defend the right to be respected and to make our own decisions that reflect the reality of our own country. But we reject and condemn all foreign interference that threatens our sovereignty. As a working class, we support any decisions that promote employment growth and the welfare of our people. We have learned that the neoliberal policies imposed by imperial powers have a substantial impact on labour and social rights. Nothing good will come from those who act as the world’s police.

In Nicaragua, social dialogue is not only promoted and practiced, but is also a constitutional right. Tripartism continues to work despite the attempts of those who believe that only they are right. We are a peace-loving and hardworking people. The political Constitution of our country grants us the right to organize in accordance with our interests, while respecting the legal framework that regulates this right.

Both employers and workers have the right to organize unions and exercise the right to strike in accordance with the provisions of the Convention. However, some employers’ organizations are organized as non-profit foundations or non-governmental organizations and are not regulated by the Ministry of Labour. What gives these employers the right to sidestep the legal provisions that regulate them? If these salaried agents of foreign powers do not comply with the laws that regulate them, what are they complaining about? Their approach of complaining in this Committee merely confirms their intention to further harm the people and the Government of Nicaragua.

How can we fight drug trafficking, cybercrime, money laundering and human trafficking unless the country has the laws to prevent and punish these crimes? Nicaraguan workers support any action by the Government to punish those guilty of these crimes, whoever they are. We support any action to combat corruption, condemn narco-terrorists and prosecute cybercrime, because it is our society that is suffering and is the victim of these scourges. So why should this body dictate which laws are to be approved or repealed? I remind you that the role of the ILO is to address labour issues and not to interfere in fields covered by other international organizations.

The double standards of the countries that define themselves as gardens or police the world find expression in the blacklisting of those of who fail to comply with provisions mandated by organizations such as the Caribbean Financial Action Task Force (CFATF), which continues to develop legal standards to prevent drug traffickers or organized crime from using international non-governmental organizations for money laundering, but in this Organization the demand is made to repeal these legal instruments.

While reading this case, we did not find any arguments that justify the inclusion of our country in the cases before this Committee.

It is difficult to respond to a political situation using arguments based on labour. In other words, no matter how much we workers demonstrate support for full freedom of association, the full exercise of collective bargaining, dialogue with a view to achieving consensus to strengthen tripartism, employers will not accept any arguments that do not support their approach of attempted coups d’état, their attitude of selling off the country and surrendering to the interests of the great powers, which raise themselves up as dictators imposing sanctions on sovereign and free peoples and governments.

Nicaraguan workers condemn any economic aggression against economic and social programmes, which undermine action to combat poverty, our main enemy. I reiterate that in our country no one is in prison for exercising the right to organize or for trade union activities, there are no restrictions on the right to organize under the law, and there is no persecution or repression of trade unions.

It is regrettable that the work of this Organization has been deteriorating, years after the employers questioned the right to strike provided for in the Convention, to which we gave in due to union diplomacy. Today it is being used as a political instrument to support foreign interference, through decisions and actions that are not related to labour, but are of a political nature.

I believe that the script for the employers’ representative was not well written. I am very sorry, Sir, but you are very much mistaken, and I invite you to visit Nicaragua to see the reality.

Government member, Sweden – I am speaking on behalf of the European Union (EU) and its Member States. The Candidate Countries Albania, Bosnia and Herzegovina, North Macedonia, Republic of Moldova, the potential candidate country Georgia, the EFTA countries Iceland and Norway, members of the European Economic Area, align themselves with this statement.

The EU and its Member States are committed to the promotion, protection, respect and fulfilment of human rights, including labour rights, the right to organize and freedom of association.

We actively promote the universal ratification and implementation of fundamental international labour standards, including this Convention. We support the ILO in its indispensable role of developing, promoting and supervising the effective implementation of ratified international labour standards and of fundamental Conventions in particular.

The EU and Central America, including Nicaragua, have an association agreement. The objective of this agreement is to develop a privileged political partnership based on values, principles and common objectives. In particular, the respect for and the promotion of democracy and human rights, including labour rights, sustainable development, good governance and the rule of law, and to contribute to inclusive and sustainable economic development, full and productive employment and decent work. The EU remains open to a genuine dialogue based on mutual respect on these and other topics of interest.

Not only are we deeply concerned by the further worsening of human rights, including labour rights and living standards in Nicaragua, but also by the Government’s failure to take any action to follow up on the conclusions of the 110th Conference Committee on the Application of Standards, demonstrating a lack of commitment to uphold its obligations under the Convention. In this regard, we regret that the direct contacts mission recommended last year by the Conference Committee has not taken place yet.

We reiterate our calls for the immediate cessation of all acts of violence, threats, persecution, stigmatization, intimidation, or any other forms of aggression against individuals or organizations in connection with both the exercise of legitimate trade union activities and the activities of employers’ organizations. The arbitrary closure of the COSEP and other business organizations in March this year is a violation of this fundamental Convention.

We fully share the call by the Committee of Experts in respect of the freeing of members of employers’ organizations or trade unions who have been unjustly detained. We acknowledge and welcome that the Government heeded the call and released Michael Healy, Álvaro Vargas Duarte, José Adán Aguerri, Luis Rivas and Juan Lorenzo Hollman, but we firmly reject the decision to exile them and render them stateless and thus impede the free exercise of their functions.

In addition, we continue to support the Committee of Experts’ calls urging the Nicaraguan Government to review other unacceptable restrictions on freedom of association, including amendments to sections 389 and 390 of the Labour Code, which are currently violating the right of workers’ organizations to organize their activities in full freedom, as well as the Act regulating foreign agents No. 1040, the Special Law on Cybercrimes and Act No. 1055 on the defence of the rights of the people to independence, sovereignty and self-determination for peace. While taking note of the initiatives reported by the Government of Nicaragua with regard to the application of the Convention in law and practice, we still observe serious violations of the Convention and the fundamental right to freedom of association in law and in practice.

We call on the Government to avail itself of ILO technical cooperation as soon as possible and to ensure the access of a direct contacts mission to assess the situation of the violation of workers’ and employers’ organizations’ rights in the country. We also recall the need to reinstate genuine social dialogue without further delay.

The EU will continue to monitor the situation closely and support the people of Nicaragua in their legitimate aspiration for democracy, respect for human rights, including labour rights, and the rule of law.

Government member, Canada – I am speaking on behalf of the United Kingdom and Canada. The United Kingdom and Canada deeply regret that Nicaraguan authorities have failed to accept any of the 2022 recommendations of the Committee on the Application of Standards, except for reporting on progress achieved regarding the application of the Convention in law and practice. In particular, they have failed to take all the necessary measures to cease all violations of the right to freedom of association, the right to organize and the right to collective bargaining, therefore perpetuating a climate of intimidation, violence and harassment against independent workers’ and employers’ organizations in the country.

Once again, we strongly condemn the labour rights abuses and violations taking place in Nicaragua. It is profoundly disappointing that the report of the Committee of Experts can only take note of the lack/absence of real and firm commitment on behalf of Nicaragua to abide by its obligation under the Convention.

In particular, the United Kingdom and Canada regret that the Nicaragua is continuing to carry out acts of persecution, intimidation, and repression against workers’ and employers’ representatives, including arbitrary arrests and detentions of social and business leaders. We strongly support the request by the Committee of Experts to take all the necessary measures to free any employers or members of a trade union who have been imprisoned in relation to the exercise of the legitimate activities of their organizations.

We note that Nicaragua has failed to provide any information regarding the establishment of a tripartite dialogue round table with the technical assistance of the ILO, as recommended by this Committee. Only genuine and constructive tripartite dialogue can lead to the full restoration and exercise of workers’ and employers’ rights in the country and ensure full compliance with fundamental labour rights protected by the Convention. We urge Nicaragua to accept ILO technical assistance and a direct contacts mission.

The United Kingdom and Canada have repeatedly called for Nicaragua to fulfil its international obligations, including by respecting the human and labour rights of all citizens and bringing an end to all repression in the country. We have been vocal in condemning the Government’s constraint of political and social liberties and have urged the authorities to release immediately and unconditionally all those arbitrarily detained, including political and business leaders, trade unionists, journalists, students, human rights activists and those who participated in peaceful protests, and to cease their intimidation of civil society.

We again call on Nicaragua to uphold without any further delay its obligations regarding the Convention to respect and ensure that workers and employers are able to exercise their right of freedom of association, free from fear, violence, arbitrary arrest and detention. We therefore strongly support the Committee of Experts in its request for further and more specific information from the Nicaraguan authorities on the right to organize, the promotion of collective bargaining, and on collective agreements.

Employer member, Honduras – Today we are examining the case of Nicaragua regarding non-observance of Convention No. 87, which provides a guarantee for employers and workers regarding their legitimate and recognized representation by the most representative organizations that each country must have. Recognizing, rejecting or legitimizing the representation of employers and workers is not at the discretion of governments. Certain actions and the failure to comply with the recommendations of this Committee and engage in social dialogue are a source of concern for our region and the world as a whole because they send a terrible message to all the countries of the world through the failure to recognize the most representative organizations.

As has been noted previously in the Conference Committee and by the Committee of Experts, joining or leaving workers’ and employers’ organizations is a voluntary matter. A government cannot take a unilateral executive decision not to recognize an umbrella organization and its members.

The Government of Nicaragua, through Ministerial Decree No. 26/2023 of the Ministry of the Interior, published in the Gaceta Oficial of 6 March 2023, annulled 18 employers’ organizations, including the most representative organization COSEP, without any right of defence, and the other 11 employers’ organizations were annulled subsequently. This violates the most sacred right to organize established in the Convention and the ILO Constitution, through the systematic violation of the right to freedom of association, tripartism and the right conferred on the most representative organization, namely COSEP.

Recognition of the most representative organization is not a matter for governments, but for the members of the organization and the ILO. Not only has the Convention been violated, but also the human rights of the employer representatives detained for more than 18 months and then deported, deprived of their nationality and in some cases even their property, all for defending the democratically elected employers’ organization. The Committee called for the release of the employers’ leaders last year, but what the Government did was to expel the members from the country following arbitrary judicial detentions at the very limits of Nicaraguan law.

The expelled employers’ leaders were not given passports to leave the country, as they no longer had Nicaraguan nationality. Moreover, their accounts were frozen and property was taken from some employers’ organizations, as was the case recently even for the Nicaraguan Red Cross.

The Government of Nicaragua must therefore be required to comply with the measures adopted by this Committee last year

Worker member, Bolivarian Republic of Venezuela – The Workers’ delegation of the Bolivarian Socialist Workers’ Confederation of Venezuela (CBST), in examining the Convention in the case of Nicaragua, does not find any formal complaint from employers or workers. If there is one, we request employers and workers to file it through the competent body, the Nicaraguan Ministry of Labour and of course the ILO, as we understand that the IOE has not brought forward any specific case of claims by any Nicaraguan employer. Nicaraguan labour law recognizes workers’ and employers’ organizations as trade unions and associations. Therefore, if they are organized as non-governmental or other types of organizations, they do not meet the minimum requirements for this Convention and should not be the subject of discussions in this body.

In any case, we suggest that the Committee of Experts should review the achievements of the tripartite committees that have been in operation, for example on: the minimum wage, occupational health and safety, social security, housing and the conclusion of a five-year collective agreement in the Nicaraguan free trade zone.

But what is certain is that the sanctions imposed by the “yankee empire” have affected workers, their minimum wage, social security, production and the economy in Nicaragua.

The Workers’ delegation of Cuba aligns itself with this statement by the Venezuelan Workers’ delegation, and unreservedly shares and supports the same position. We emphasize that the “yankee empire” must take its hands off Cuba, Nicaragua, the Plurinational State of Bolivia, Peru and the Bolivarian Republic of Venezuela.

Government member, Cuba – Over the past few days at the Conference, we have listened to various Government, Worker and Employer representatives placing emphasis on aspects such as the cooperation of the countries concerned, reporting the presumed degree of seriousness of each issue and the need to avoid politization, all with the aim of maintaining the reputation of the Committee. My delegation shares these views with regard to the case under examination today.

We appreciate that the information provided by the Government of Nicaragua includes indications on the exercise and freedom of association in the country, and demonstrates the Government’s will to maintain communication and cooperation with the Committee of Experts, and to fulfil its commitments to the ILO and the Nicaraguan people.

Cuba has on several occasions expressed its rejection of the use of ILO supervisory machinery as a channel for allegations of a political nature. We consider that the policies in support of workers, as implemented by the Government of Nicaragua, must be analysed in an impartial manner. According to the information provided by the Government, between 2018 and 2021, 111 new trade union organizations were established in the country, with more than 3,900 members, and another 2,884 trade union organizations were updated, covering over 222,370 workers.

We reiterate the importance of continuing to promote tripartism and respectful discussion in each country, as well as the spirit of dialogue and cooperation.

We hope that the conclusions of this discussion will be objective, technical and balanced, and that the information and views provided by the Government, Employer and Worker representatives of Nicaragua who have spoken in this room will be taken into account.

Employer member, Chile – Point 8 of the ILO Decent work for sustainable development (DW4SD) Resource Platform concerning freedom of association recalls that freedom of association is proclaimed in the Universal Declaration of Human Rights (1948). It is the enabling right which allows the effective participation of non-state actors in economic and social policy, and which constitutes the core of democracy and of the rule of law. Hence guaranteeing the participation and representation of workers and employers is essential for ensuring the effective functioning, not only of labour markets, but also of national governance structures in general. The right of workers and employers to establish and join organizations of their own choosing is an integral part of a free and open society. In many cases, these organizations have played a significant role in the democratic transformation of their countries.

This is why the arbitrary interference by the Government of Nicaragua through the invalidation of the legal personality of COSEP and its 18 affiliated associations from the various sectors of production is so serious. The suspension by administrative authority of COSEP, the employers’ organization which has historically been recognized by the ILO as the most representative in Nicaragua, constitutes a serious violation of the principles of freedom of association, and in particular of Article 4 of the Convention, which provides that workers’ and employers’ organizations shall not be liable to be dissolved or suspended by administrative authority. The regrettable situation described above, which is a violation of the right to freedom of association of COSEP and its affiliated employers’ organizations, is a subject which is bound to be of interest to both workers and employers because, just as the arbitrary dissolution of workers’ unions by administrative authority is unacceptable, the dissolution of employers’ associations by administrative authority cannot be tolerated either. We therefore call on the Committee to appeal strongly to the Government of Nicaragua to ensure compliance with the provisions of the Convention. To this end, the immediate revocation of the administrative measure invalidating the legal personality of COSEP and its 18 affiliated associations is essential.

Worker member, El Salvador – The report of the Committee of Experts, with reference to the observations on the Convention made to the Government of Nicaragua, expresses concern in a short paragraph at the limitations on the right to freedom of association of workers. However, the explanations given by the Government clearly indicate that dispute resolution has been strengthened through social dialogue, which is obviously a very acceptable solution for workers.

The use of social dialogue, and consequently collective bargaining, is the best way to settle collective disputes in labour relations. The Committee of Experts indicates that the imposition of compulsory arbitration to end a strike, outside the cases in which strike action may be restricted or even prohibited, is contrary to the right of workers’ organizations to organize their activities in full freedom and to formulate their programmes. This is how it has been interpreted by the Committee on Freedom of Association, which only accepts limitations on the right to strike in situations in which essential services in the strict sense of the term are jeopardized, and in the other cases that it indicates. But the issues raised in Nicaragua, which are without foundation for a small group of employers, are regrettably common in many countries of the world which, although they have ratified the Convention and have recognized the right to freedom of association in their constitutions, still maintain legislation which restricts the real autonomy of trade unions, making it difficult for them to defend the interests of workers.

The workers of El Salvador unreservedly express their total support and backing for the decisions, autonomy and tripartite agreements of the real trade union movement in Nicaragua.

Interpretation from Russian: Government member, Belarus – We are grateful to the Government of Nicaragua for its report. The information provided shows that the Government is ready to continue its constructive cooperation with the ILO and also to engage in a special dialogue with the Organization. We welcome the measures taken by Nicaragua to guarantee compliance with the ILO Conventions that the country has ratified, and to take measures together with its social partners to guarantee freedom of association and the implementation of the national anti-poverty programme in the country. From the report, it is clear that there is a good climate in Nicaragua for setting up new trade union organizations. We urge the ILO to continue to provide Nicaragua with technical assistance in accordance with its mandate. At the same time, we urge the supervisory bodies of the ILO to approach the assessment of the situation in any country objectively, and to take into account that membership of trade union organizations does not free citizens from complying with the law and protect them if they commit any actions which run counter to the interests of individuals, society, and/or the State.

Employer member, Costa Rica – Social dialogue, as indicated by the ILO, has the objective of promoting consensus through the democratic involvement of the main actors in the world of work, and it has clearly been shown that the results of social dialogue processes that are considered to be successful can resolve economic, labour and social issues, while promoting good governance, improving peace, and social and labour stability, and stimulating economic progress.

In our view, social dialogue is what strengthens us as societies, and enterprises and employers’ organizations understand that, in order to make progress, we must work together. This is the reason for our commitment to developing together with our governments the changes to accelerate the expectations of our societies, that is better inclusion and opportunities.

The acts of the Government of Nicaragua are of enormous concern to our organization, and to others in the region. They consist of harassment, threats and ill-treatment of employer representatives. The unilateral revocation of the legal personality of our partner organization, and the 18 chambers of which it is composed, is an act that is in violation of employers’ freedom of association and places in jeopardy the economic progress of the country.

We consider that this interference by the Nicaraguan authorities is a very bad precedent at the international level. Moreover, it is in open contravention of the provisions of the Convention, which set outs the right of both workers and employers to establish and join organizations of their own choosing without previous authorization.

It is not by chance that the principle of freedom of association is identified as one of the fundamental rights set out in the ILO Declaration on Fundamental Principles and Rights at Work (1998).

We believe that extreme poverty, migration, inequality, corruption, violence and authoritarianism are situations that we have to address and combat through quality employment, with social responsibility, as a means of promoting good practices, transparency and an ethical approach by the private sector through various measures and practices that are environmentally friendly and with the commitment to build social dialogue that strengthens democracies. These have been and will continue to be the objectives of employers in Latin America and are still the goal of our brothers in the COSEP.

The Costa Rican Federation of Chambers, faithful to the principles of strengthening democracy and social security, expresses its solidarity with the employers represented by COSEP. The chambers concerned are organizations that represent an important sector which acts as a motor for the Nicaraguan economy. For that reason, the consequences that this can have for the foreign investment climate in the country are a matter of concern and we believe that the situation will become complex.

It is our obligation, as an employers’ association, to issue a call in defence of social dialogue as a fundamental pillar of democracy and freedom of association as a fundamental right.

Worker member, Zimbabwe – The right to freedom of association is essential for both workers and employers. For workers it ensures their ability to join trade unions or other organizations that can collectively bargain for fair wages, safe working conditions and the protection of their rights. It empowers workers to negotiate as equals with employers creating a level playing field and promoting a more equitable distribution of wealth and power. Likewise, employers also benefit from the right to freedom of association. It enables them to establish employers’ organizations that can advocate for their interests, negotiate with trade unions and engage in social dialogue with governments and other stakeholders. Crucially, the Convention emphasizes that public authorities must refrain from any interference that restricts this right or impairs the lawful exercise of freedom of association. Governments and public institutions have a duty to protect and promote freedom of association by ensuring that workers and employers can exercise their rights without fear of reprisals, intimidation, or arbitrary restrictions. When public authorities interfere with the right to freedom of association, they undermine the principles of democracy, undermine social dialogue and stifle progress. Such interference can manifest itself in various forms, including repressive legislation, undue restrictions on union activities, discrimination against certain groups, or harassment and violence towards trade unionists or employers’ representatives. We must remember that a healthy and vibrant civil society is built on the foundation of freedom of association. It allows for the formation of diverse organizations that represent the myriad interests and perspectives within society. Governments, employers and workers themselves have a shared responsibility to create an enabling environment that promotes freedom of association, respects the autonomy of organizations and upholds the principles of social justice.

Government member, Bolivarian Republic of Venezuela – The Government of the Bolivarian Republic of Venezuela welcomes the presentation by the distinguished delegation of the Government of Nicaragua in relation to compliance with the Convention. We have noted the Government’s explanations that the detentions of the persons involved in this case were as a result of their prosecution for acts set out and penalized in the national legislation, which are not related to the exercise of the lawful activities of employers and members of unions. In light of the explanations provided by the Government, it should be noted that the criminal acts established and penalized by the national legislation are not covered by the Convention. We recall that Article 8 of the Convention is clear and categorical in providing that freedom of association has to be exercised in accordance with the laws of each country, and therefore that workers, employers and their respective organizations, like other persons or organized collectivities, shall respect the law in their acts.

On the other hand, we understand, as indicated by the Government, that there is broad collaboration between the Chamber of Employers and the Government, which reinforces the National Plan to Combat Poverty. Moreover, we cannot ignore the fact that, in Nicaragua, between 2018 and 2021, there were 111 new trade union organizations with a membership of over 3,900 workers, and that over 2,800 trade unions cover 222,370 unionized workers. As always, we call on the ILO supervisory bodies to distance themselves from political considerations, at the risk of their comments going beyond their mandate, which undermines their seriousness and credibility, damages the noble objective of the ILO and interferes in the sovereignty of States. The Government of the Bolivarian Republic of Venezuela hopes that the Committee’s conclusions will be objective and balanced so that the Government of Nicaragua can continue making progress and furthering its compliance with the Convention.

Employer member, Colombia – First of all, I would like to refer to the serious allegations that have been made within the framework of this Committee concerning acts of persecution and systemic repression by the Government of Nicaragua against the leaders of COSEP, such as Mr José Aguerri, arbitrarily detained in 2021, and Michael Healy. As a result of these acts, several leaders of employers’ organizations are in exile.

It is important to recall that freedom of association is totally meaningless in the absence of civil liberties. The rights conferred on workers’ and employers’ organizations are based on respect for these civil liberties, such as the security of the person and freedom from arbitrary arrest or detention.

The persecution, detention and expulsion of employers’ leaders for reasons linked to actions relating to legitimate representative activities is a serious violation of their rights and of freedom of association. In this regard, it is deeply concerning that the Government has not provided information on the recommendations made by this Committee last year. It is fundamental to call upon the Government to initiate the rebuilding of processes of trust and to ensure full respect for freedom of association.

Secondly, it should be emphasized that workers’ and employers’ representatives must be freely elected and represented on an equal footing, as set out in Convention No. 87 and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The Committee of Experts has indicated repeatedly that it is the prerogative of workers’ and employers’ organizations to determine the conditions for the election of their leaders and that the authorities should refrain from any undue interference in the exercise of this right.

It is for this reason that we note with deep concern that, through Ministerial Decisions Nos 26/2023 and 27/2023 of the Minister of the Interior, the Government ordered the revocation of the legal status of 19 employers’ organizations, including the COSEP employers’ federation. This serious act makes it more difficult to build tripartite social dialogue and engage with employers’ and workers’ representatives in accordance with the ILO Constitution

Interpretation from Chinese: Government member, China – I thank the representatives of the Government of Nicaragua for the presentations made. We carefully read the report of the Committee of Experts. The Government of Nicaragua submitted detailed materials, which unfortunately were not taken seriously by the Committee of Experts. The Government actively cooperated with the ILO and submitted relevant materials in a timely manner, demonstrating the Government’s positive attitude of cooperation and dialogue. China appreciates this. The Government focused on building trust among trade union organizations, and promoting and protecting their right to freedom of association. Between 2018 and 2021, more than 100 new trade union organizations were established, accepting a total of nearly 4,000 workers. Nearly 3,000 trade union organizations were improved, covering a total of more than 220,000 workers. These achievements and progress should be highly valued by the Committee. We emphasize that, in the ILO supervisory mechanisms, the authoritative information provided by the Government concerned, should be respected and valued. Otherwise, the mechanism will lose its meaning.

We oppose the politicization of this mechanism, which is not in line with the purposes and principles of the ILO Constitution. The conclusions and recommendations made by the mechanism should conform or take into account, the national conditions of the country concerned, respect the country’s sovereignty and refrain from interfering in its internal affairs. Any country has the responsibility to maintain social order and the rule of law and to crack down on crimes. There are no so-called rights above the law. We call on the Committee to adhere to the principles of objectivity and impartiality, respect the facts and correctly reflect the relevant issues and the country’s progress in implementing the Convention when reviewing this case and forming its conclusions, and to further encourage it to better fulfil its obligations under the Convention.

Employer member, Mexico – In relation to the case of Nicaragua, it should be recalled that in 2022 the International Labour Conference, through this Committee, deplored the persistent climate of intimidation and harassment of independent workers’ and employers’ organizations. It also noted with great concern the arrest and detention of employer leaders and urged the Government to immediately cease all acts of violence, threats, persecution, intimidation or any other form of aggression. Regrettably, as noted, this climate and environment have unfortunately persisted.

We also wish to recall that this Committee recommended ILO technical assistance to ensure full compliance with its obligations under the Convention and, in particular, that it accept a direct contacts mission to complete a fact-finding mission with full access related to the situation of the trade union rights of workers’ and employers’ organizations, none of which has yet happened.

As this relates to a fundamental Convention, it is clear that no State can allege interference when there regrettably exist and persist violations of the human rights and freedoms set out in the Convention. It should also be recalled that the United Nations Human Rights Council, which is the intergovernmental body responsible for strengthening the promotion and protection of human rights throughout the world, in the report of the Group of Human Rights Experts on Nicaragua submitted in March this year, indicated that, and I quote: “agents and public officials of various agencies and structures of the Government, and non-State actors participated, and continue to participate, as of the date of writing of this report, in serious and systematic human rights violations and abuses against a sector of the Nicaraguan population, including extrajudicial executions”. For this reason, we are making an urgent appeal for the establishment of a direct contacts mission to undertake an investigation with full access in relation to the situation of violations of the rights of representative organizations in Nicaragua.

Interpretation from Russian: Government member, Russian Federation – The Russian Federation shares what has been said by the representative of Nicaragua about the compliance of the authorities of that country with the Convention. We do not think the accusations levelled against the authorities of Nicaragua in respect of failure to comply with the provisions of the Convention are justified. We think these accusations are purely political.

We believe that the Committee does not have the right to comment on the action of courts or the police and security forces of any country, or whether or not a person should or should not, be released if they are in jail. That is a clear violation of their authority. As far as we are aware, being a trade union or employer activist is not a justification for being released from prison if you have been put there as the result of committing an offence under the criminal law of the country of which you are a national. We do not think that the ILO’s action should lead to interference in the internal affairs of any country, because that would politicize this Organization and its supervisory system and undermine their credibility as well as make them less effective.

Government member, Plurinational State of Bolivia – The Plurinational State of Bolivia welcomes the information provided by the Government representative of Nicaragua in relation to the effect given to the Convention.

As set out in the Constitution in my country, we respect the right of all workers to organize in trade unions in accordance with the trade union principles of unity, trade union democracy, political pluralism, as well as solidarity and internationalism. We have therefore listened carefully to the information provided concerning the promotion of the right to free organization and the action taken by the Government to ensure this right, and the information provided by the employer and worker representatives of the country.

In this regard, we wish to place emphasis on the information provided by the Government, which emphasizes that since 2007 it has been working to restore and regulate the rights of workers to freedom of association through dialogue and consensus among all the actors. In order to achieve labour stability and peace, we must welcome these efforts and also take into account the various challenges to workers’ rights derived from unilateral measures and natural disasters.

We therefore encourage all the actors to contribute to the work of the Committee and for the Committee to promote the processes of dialogue, cooperation and the building of trust, for which it is necessary to distance this forum from any attempt at politicization generated by disinformation and mistaken understandings concerning the achievement of workers’ rights. Indeed, we firmly believe that priority needs to be given to working for the implementation of the Convention and, as indicated in the Convention, while respecting the law of the land.

We encourage the Committee to continue working, together with all the actors, taking into account the Government’s information, as well as the views of the workers’ and employers’ representatives of Nicaragua who are present today in this room, in support of all the efforts made for the implementation of the Convention.

Government representative – I would like to take this opportunity to thank the Governments who in their interventions contributed to and directed the discussion in accordance with the spirit of labour of this Organization and the Convention. We once again refute any interference or intention to interfere in our internal affairs. Criticism of our justice system amounts to a lack of respect for the State of Nicaragua and our national sovereignty. We conclude that Nicaragua will continue along the path of peace and action to combat poverty, seek social and labour stability, and above all peace for all Nicaraguans. Raising criticisms, referring to human rights and speaking of political prisoners betrays the essence of this House and this Committee. If you want to talk about human rights, the Human Rights Council starts on 19 June, so please go down to the Palais des Nations.

Worker members – We have taken note of the information and the responses provided by the Government of Nicaragua and we have also listened to all the valuable interventions of other speakers. As we expressed in our opening speech, the Worker members stress the importance of continuing to promote tripartite social dialogue at the national level and encourage the Government to take measures to facilitate social dialogue with the presence of the ILO.

Social dialogue is at the heart of the Constitution of the ILO and it is based on the recognition of, and respect for, employers’ and workers’ organizations. We urge the Government to respect its obligation in this regard and we urge the Government to cease all acts of violence, threats, persecution, stigmatization and intimidation in relation to the exercise of legitimate trade union activities and the activities of employers’ organizations.

We encourage the Government to continue to implement initiatives and activities to promote freedom of association, including the right to form and join trade unions. The Government should amend sections 389 and 390 of the Labour Code, so as to respect the right to strike and invite the Government to avail itself of the technical assistance of the ILO.

The Worker members encourage the Government of Nicaragua to take all necessary measures to ensure compliance with the conclusions of the Committee and invite the Government to avail itself of the technical assistance of the ILO.

Employer members – With reference to my first intervention, another of the issues that are of concern is the new legislation adopted in Nicaragua. At the end of 2021, the Congress adopted a series of three new laws:

- the Act No. 1055 on the defence of the rights of the people, under which any person can be prosecuted for acts affecting the independence, sovereignty and self-determination of the country, in which case they are prohibited from holding public office;

- the Act on cybercrimes, under which journalists and any person disseminating fake news can be detained and, in accordance with the view of the Government, involves the associated responsibility of the media that disseminated the information;

- the Act on the regulation of foreign agents, which prevents any international financing and requires any person who receives financing from outside the country to be registered and to report any operations, and prohibits such foreign agents from participating in internal matters, activities and politics.

Act No. 1040, published in the Diario Oficial on 19 October 2020, contains provisions that are in violation of freedom of association as defined in the Convention and in the Constitution of the Republic of Nicaragua. The wording of the Act places at risk the existence of sectoral employers’ organizations. For this reason, the COSEP and a series of other civil society organizations have lodged an appeal for the Act to be declared unconstitutional, which is before the Supreme Court of Justice. Various international organizations have commented on the content and scope of the Act, indicating: that it is contrary to international human rights standards and amounts to an unacceptable restriction of freedom of association and the right to defend human rights in Nicaragua.

We would have liked the COSEP to be present in this assembly today as the most representative organization of employers in Nicaragua. Regrettably, it has been dissolved by arbitrary administrative decision. A delegate is today participating in this meeting who claims to represent employers, although that person was not designated in consultation with the most representative organization of employers in Nicaragua. For this reason, the IOE, with the support of the whole of the Employers’ group, has lodged a complaint with the Credentials Committee to invalidate the presence of that person in the Committee.

In conclusion, and in compliance with your request to keep to the time limits, the Employer members believe that we are bound to place emphasis on the conclusions adopted by the Committee in 2022, which the Government of Nicaragua has not deigned to take into account. The Committee must deplore the persistent climate of intimidation and harassment to which employers’ organizations are subjected. The Committee must urge the Government to bring an immediate end to all acts of violence, threats, persecution, stigmatization, intimidation and any other form of aggression against persons or organizations in relation to the exercise of legitimate trade union activities, and to adopt measures to ensure that such acts do not reoccur.

The Government must also ensure the immediate release of any employer who may be imprisoned in relation to the exercise of the legitimate activities of their organizations and provide information on the civil and criminal trials that are being pursued in this regard, or which have been concluded, in respect of the principles of due process.

The Government of Nicaragua must develop, without further delay, social dialogue through the establishment of a round-table for tripartite dialogue, under the auspices of the ILO, chaired by an independent person and which has the confidence of all the partners, and which duly respects the representative nature of employers’ and workers’ organizations in its composition and meets periodically.

The Government must repeal Act No. 1040 on the regulation of foreign agents, the Act on cybercrime and Act No. 1055 on the defence of the rights of the people to independence, sovereignty, self-determination and peace, as indicated by human rights rapporteurs, which restrict the exercise of freedom of association and freedom of expression, which are basic requirements for the exercise of freedom of association, as set out in the Convention.

The Government should promptly seek ILO technical assistance to ensure full compliance in law and practice with its obligations under the Convention.

We urge the Committee to once again call on the Government to accept the difficulties that it is experiencing in giving effect to the Convention and to agree to a high-level tripartite investigation mission with full access on the situation of the violation of the rights of employers’ organizations as soon as possible.

The Committee must request the Government to provide a detailed report to the Committee of Experts before 1 September 2023, and we hope that this report will on this occasion abide absolutely and fully with the requirements indicated by this Committee.

Finally, the Committee should decide to include its conclusions in a special paragraph of its report.

In conclusion, while we are grateful for the information provided by the representative of the Government of Nicaragua, we do not share their intent or content, and the Employers’ group therefore insists on reserving the right to use any other instrument offered by the ILO Constitution to ensure effective compliance with the obligations deriving from the Convention and to protect the most representative organization of Nicaraguan employers.

Conclusions of the Committee

The Committee took note of the written and oral information provided by the Government and the discussion that followed. 

The Committee noted with deep concern the persistent climate of intimidation and harassment of independent workers’ and employers’ organizations.

The Committee noted with deep concern the allegations of the arrest and detention of employer leaders and the further deterioration of the situation.

The Committee also noted with deep concern the absence of any progress and cooperation on the part of the Government since last year.

Taking into account the discussion, the Committee urges the Government to:

- ensure that workers and employers can establish their own organizations and operate without interference, including Managing Board of Private Enterprises (COSEP);

- 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, including COSEP, and adopt measures to ensure that such acts are not repeated including the return of the Nicaraguan nationality of those who have been deprived of it for this reason;

- immediately release any employer or trade union member who may be imprisoned in connection with the exercise of the legitimate activities of their organizations and provide information on all the measures taken in that regard;

- 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, as recommended by the Committee in 2022; and

- 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 Committee urges the Government to avail itself of ILO technical assistance to ensure full compliance with its obligations under the Convention in law and in practice.

Government representative – We have taken due note of the conclusions of this honourable Committee.

We regret once again that, despite the explanations provided by our Government, the Committee persists in distorting the real labour, trade union and social situation in Nicaragua. The suggestion is of even more concern that the State is persecuting trade unionists, which is false. It is not in accordance with the history of our current Government: on the contrary, in Nicaragua, workers, employers and the Government embrace harmony. Tripartism is a tangible reality, as is freedom of association.

The politicization of specific instances is a matter of concern to us, as it is detrimental to the credibility of the Committee, and therefore undermines the historic achievements of the Organization which we must protect.

In Nicaragua, we will continue working as we have been doing, in compliance with our obligations, in cooperation with the ILO and upholding the restored labour, social and human rights of the Nicaraguan people as protagonists.

We do not accept interference or insinuations of interference. We are sovereign and respectful of international law, and there can be no discussion about our legislative framework.

We therefore refute biased conclusions based on intentions that go beyond the competence of this Organization. We will continue to work and strengthen dialogue between Nicaraguan workers and employers in defence of a decent life with work and rights for everyone.

Individual Case (CAS) - Discussion: 2022, Publication: 110th ILC session (2022)

Discussion by the Committee

Government representative, Minister of Labour – On behalf of the State of Nicaragua, I refer to the report on the application of international labour standards of 2022 in which the Committee of Experts takes note of the observations of the International Organisation of Employers (IOE), received on 1 September and 25 October 2021, denouncing acts of persecution, intimidation and repression against José Adán Aguerri Chamorro, Michael Healy and Álvaro Vargas Duarte, and requests Nicaragua to provide comments on whether the reasons for their detention are related in any way to the exercise of their functions as alleged employer leaders.

In this regard, the State of Nicaragua indicates that the detention of José Adán Aguerri Chamorro, Michael Healy and Álvaro Vargas Duarte is not related in any way with the activities undertaken by these persons within the framework of their functions as leaders of the Superior Council for Private Enterprise (COSEP).

The content of a report that is not related to and has nothing to do with the objectives of the Convention is unacceptable, as the persons referred to in the report have been investigated, prosecuted and convicted of criminal acts against the people of Nicaragua in accordance with the current national legislation. The State of Nicaragua continues to refute any type of comments on and interference in internal matters that are prejudicial to its sovereignty and the labour stability of Nicaraguan families. In this regard, it calls on the ILO to move forward in the discussion and seek solutions related to the world of work and the social development of families.

The State of Nicaragua, with reference to the ILO recommendation to amend sections 389 and 390 of the Labour Code, considers that, in accordance with the principle of sovereignty set out in the political Constitution, that is a decision that rests with the people of Nicaragua. The Government of National Unity and Reconciliation, in accordance with the labour legislation, is continuing to strengthen the right to the freedom of unionization of Nicaraguan workers in order to guarantee the full exercise of the establishment of trade unions and their right to organize their activities freely and to formulate their programmes of action, thereby giving effect to the provisions of the national labour legislation, ILO international Conventions ratified by Nicaragua and article 81 of the political Constitution of Nicaragua, under which workers have the right to participate in the management of enterprises through their trade union organizations.

The State of Nicaragua has also been providing timely information, through the corresponding reports to the ILO, on compliance and progress in relation to unionization in all sectors of the national economy.

Finally, we reiterate that the Government of National Unity and Reconciliation has the common objective of restoring the rights of Nicaraguan families, which include the right to labour stability, freedom of association and social peace.

Employer members – We find ourselves in a situation which, in relation to the freedom of the exercise of the rights of association and of expression, has resulted in the arbitrary detention of the highest-level leaders in recent times of the most representative employers’ organization in Nicaragua.

This is a circumstance that requires the attention of the present Committee, not only from the perspective of what happens to employers, but also from the general perspective that we have always had in this house of respecting both workers and employers when they organize for the free exercise of their activities.

I will try and provide explanations and I call on Governments and Worker representatives to understand the reason why the Employers’ group has considered this to be a matter of enormous gravity and in violation of the deepest meaning of the exercise of the freedoms advocated by this Organization.

The Minister of Labour, whom I thank for her participation and her interventions, has indeed referred to the detention of these distinguished persons.

There are also other persons who are currently arbitrarily detained in Nicaragua. In addition to José Adán Aguerri and Michael Healy, they include Álvaro Vargas Duarte and Luis Rivas, member of the Association of Banks of Nicaragua, and Juan Lorenzo Holmann, former President of the Nicaraguan Development Institute (INDE). Five high-level dignitaries are being detained, and José Adán Aguerri has already been convicted to 13 years of imprisonment for acts which, according to the Government representative, have nothing to do with freedom of association. However, I will show that there are very many reasons which lead to the belief that in practice there is such a connection.

It was through a representation made by the IOE last year that a series of very telling details emerged. First, there is the harassment of these representative leaders. The granting of precautionary measures by the Inter-American Commission on Human Rights, by means of a resolution in which José Adán Aguerri and Michael Healy sought precautionary measures, precisely because they found themselves in a situation of enormous risk in the exercise of their activities.

On 3 August 2018, the Inter-American Commission on Human Rights decided to seek precautionary measures. On 17 June 2018, 15 armed persons with their faces covered entered the house of Michael Healy, in Chacatilla y Zopilote, and violently took possession of his property. We start to see facts emerging from that time.

Subsequently, there was an attack in the city of Léon on 3 September 2019 against the then President and Vice-President of COSEP. A group of persons close to the Government then wrote messages and graffiti on COSEP premises, with specific threats relating to the legitimate exercise of its activities. They wrote such messages as “conspirators, bosses of unemployment” and other graffiti.

There was then an attack in the city of Léon in 2020 against the President of COSEP. On 25 March 2021, Michael Healy, President of COSEP, on a business trip to examine the system of industrial production and crops, and Mateo Daniel Capitanich, Ambassador of Argentina to Nicaragua, who was among others accompanying him, were the victims of verbal aggression and persecution by civil agents close to the Government.

There were also attacks by the Government and the President’s family against employers affiliated to COSEP. And there were acts related to lands being taken over by groups close to the Government, with the purpose of directly intimidating and repressing the private sector affiliated to COSEP. Private lands were seized and invaded in violation of the political Constitution of Nicaragua.

Similarly, in addition to the detention of these employer leaders of COSEP, and specifically the five that I have named, there have been campaigns of vilification and persecution of COSEP and its leaders. A campaign to vilify José Adán Aguerri, the former President of COSEP, has been carried out since 11 June 2021 on account of his activities.

There are a series of graffiti, which I will not detail, but which are well known to the Office through the complaint that we have made.

There are other aspects that we consider it important to highlight relating to limitations on enjoying the benefits of international cooperation. More specifically, Act No. 1040 on the regulation of foreign agents, which is not only of concern to an organization such as the one representing Nicaraguan employers, is applicable to any organization which in any form is in receipt of resources from abroad. It can be applied to non-governmental organizations, and also to unions. There are gigantic restrictions in this respect, which have been referred to by rapporteurs from international organizations as being contrary to international decisions and standards.

There is accordingly a long series of facts referred to by these special rapporteurs, although I only wish to refer to the manner in which they address the matter in their conclusions, in which they indicate that the Act gives rise to serious and fundamental problems of compatibility with the obligations of Nicaragua under international law, as it raises issues with international law in general and human rights in particular.

They urged the Government of Nicaragua to amend Act No. 1040 and to open a public space for discussion and to guarantee that the legislation is in conformity with international standards and the human rights set out therein.

Similarly, on 26 February 2021, the Inter-American Court of Human Rights issued decisions relating to the matters covered by this legislation in which, in particular, it indicated that the Act that had been approved would impose undue restrictions on persons and associations and might be prejudicial to freedom of association, the right to privacy and freedom of expression.

Views have also been expressed by international and Nicaraguan organizations, which we have set out in detail in our representation.

Finally, we wish to note that there are other aspects relating to the report of the Committee of Experts, including matters relating to strikes, to which we will not refer for the reasons that are well known.

Worker members – This is the first time that we are discussing the application of this Convention by the Government of Nicaragua in the Committee and Nicaragua ratified this Convention in 1967 which is now 55 years ago, a little more than half a century.

We take note with concern of the allegations of arrests and detention of three employer leaders in June and October 2021 and we note that the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights have condemned the detention of the employer leaders and have urged the Government to release them immediately.

The Committee of Experts has expressed deep concern regarding the arrest and detention of the leaders. The Committee of Experts has also stated repeatedly that respect for fundamental freedoms, including the safety and physical integrity of persons, the right to protection against arbitrary arrest and detention, and the right to a fair trial, are essential to the exercise of freedom of association.

We must state that respecting the authority, interpretations, observations and requests of the Committee of Experts is a cornerstone of the effective operation of the supervisory system and, in this regard, we must emphasize that the Committee of Experts has recalled that the right to freedom of association is emptied of all meaning if there is no respect for fundamental human rights, the rule of law and civil liberties. We reiterate that detaining employer and worker leaders for activities related in any way to the exercise of their functions as leaders is contrary to the Convention. The Committee of Experts has repeatedly made this observation regarding the Convention.

We urge the Government of Nicaragua to provide the Committee of Experts with all material information regarding the charges brought against leaders, the legal or judicial proceedings instituted and the outcome of such proceedings.

We note from the report of the Committee of Experts that there are pending observations regarding the need 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 a strike. The Committee of Experts has insisted on the need to amend these provisions. The Committee of Experts is clear that the imposition of compulsory arbitration to end a strike, outside the cases in which a strike may be limited, is contrary to the right of workers to organize freely their activities and formulate their programmes.

We respect the observations and interpretation of the Committee of Experts and urge the Government to take the necessary measures to amend sections 389 and 390 of the Labour Code. This is in order to ensure that compulsory arbitration is only possible in cases where strikes may be limited, such as 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.

We urge the Government to provide information on any developments in this regard to the Committee of Experts as requested.

We also note with satisfaction that the Government of Nicaragua has rolled out various initiatives aimed at promoting the right to organize, guaranteeing workers’ rights to freedom of association, removing obstacles through the registration of trade unions, promoting the organization of own-account workers and providing training for trade union leaders.

We note with interest that, as a result of these initiatives, between 2018 and 2021, 111 new trade union organizations were formed affiliating 3,902 workers, and 2,884 trade union organizations were updated that grouped together 222,370 workers. The Worker members welcome the efforts deployed by the Government and the results achieved and urge the Government to continue to implement initiatives and carry out activities for the promotion of freedom of association and the effective recognition of the right to organize.

Worker member, Nicaragua – Once again, I am surprised to be in this Committee dealing with a case that involves my country, Nicaragua. I am surprised because the case raised by the Employers, of a political nature rather than a labour issue, concerns a political matter that has nothing to do with this Committee.

In Nicaragua, there is full freedom to organize within the framework, as in any country, of the standards and laws which govern society. Any person, irrespective of their social position, who commits a crime is liable to prosecution as a punishment, in accordance with the provisions of national laws.

The persons referred to in this case form part of the ideologists of a failed coup attempt which involved murders, kidnappings and torture through tranques de la muerte (death roadblocks). We can forgive, but not forget.

These people who are being put forward as innocent saints are responsible for the negative impact on the national economy which resulted in a loss of over US$27,000 million and the laying off in the private sector of 250,000 workers. We cannot forget this.

The persons bringing this case support their allegations with false claims divulged through tools of disinformation which are under the orders of those who consider themselves to be the guardians of the world. This is a subject on the political agenda of the North American administration which is applying the misnamed sanctions and which are resulting in a negative impact on the employment of Nicaraguan workers. For this reason, the claims of the Employer spokesperson must be disregarded.

Since 2007, the Government, through the Ministry of Labour, has placed emphasis on dialogue, agreement and consensus, thereby promoting the settlement of disputes in negotiation forums. This model, which has been given constitutional ranking, was broken by those who are now complaining through their evil anti-patriotic acts and who took the path of destruction and exclusion by renouncing all forms of dialogue, negotiation and consensus.

We workers, with the Government, under the presidency of Daniel Ortega, are subject to economic transformations, enjoy full freedom of trade union action, benefit from the negotiation of collective agreements, negotiate wage increases and follow up occupational safety and health issues through the committees established for that purpose.

We consider that this Committee must address and discuss labour issues, and not issues that are of the nature of political interference. The role of this Committee must not be undermined and it must not be converted into an instrument for interference in the sovereignty and internal affairs of our country.

Today we have re-embarked upon the path to economic growth despite the attempted coup, the pandemic, the devastating effects of two category five hurricanes and the misnamed economic sanctions imposed by the American administration and the European Union. Overcoming the negative impacts on our economy is a result of the efforts of workers, employers and the Government to return to the path of alliance, dialogue and consensus.

As recognized by the Committee of Experts, Nicaragua has provided the information requested by the Office in good time. We know this because we participate in the process of the preparation of the reports through the consultations undertaken by the Ministry of Labour. We are moving forward with a firm and sure step towards total economic recovery, even though external factors are battering our economy and limiting more rapid progress.

We reiterate that there is no reason whatsoever for bringing the case of Nicaragua before this Committee, and there are no justifying grounds or convincing arguments in support of the case. The very fact of bringing in subjects unrelated to the Convention shows that we are right that Nicaragua should not have been responding to false claims in the Committee, and I recall that the Convention does allow us to talk about strikes, even though the Employers do not like it.

Government member, France – I have the honour to speak on behalf of the European Union (EU) and its Member States. The candidate country, Montenegro, and the European Free Trade Association country, Norway, Member of the European Economic Area, as well as Georgia and Ukraine, align themselves with this statement.

The EU and its Member States are committed to the promotion, protection, respect and implementation of human rights, including labour rights and the right to organize and freedom of association.

We actively promote the universal ratification and implementation of fundamental international labour standards, including this Convention. We support the ILO in its indispensable role of developing, promoting and supervising the application of ratified international labour standards and of fundamental Conventions in particular.

The EU and Nicaragua have had a close relationship. Some of the objectives of the Association Agreement signed between the EU and Central America were to develop a privileged political partnership based on values, principles and common objectives, in particular the respect for and the promotion of democracy and human rights, sustainable development, good governance and the rule of law, and to contribute to inclusive and sustainable economic development, full and productive employment and decent work.

We are deeply concerned by the further deterioration of human rights, including labour rights and living standards in Nicaragua.

We are gravely concerned that, since 2018, the Nicaraguan Government has engaged in the systematic imprisonment, harassment and intimidation of those seeking to stand as presidential candidates, opposition leaders, student and rural leaders, journalists, human rights defenders and business representatives, including through acts of persecution, intimidation and repression against leaders of COSEP and the business sector affiliated with COSEP, as well as the arbitrary detention of employers’ leaders without warrants or due legal process. Respect for fundamental freedoms, such as the safety and physical integrity of persons, the right to protection against arbitrary arrest and detention, and the right to a fair trial by an independent and impartial tribunal are fundamental to the achievement of the rights enshrined in the Convention.

We call for the immediate and unconditional release of Michael Edwin Healy Lacayo, Álvaro Javier Vargas Duarte, Luis Rivas, José Adán Aguerri Chamorro and other employers’ leaders, as well as all other political prisoners, and for the annulment of all legal proceedings against them, including their sentences. The arrest of employers’ leaders for reasons related to the exercise of their functions is a serious violation of freedom of association.

Not only did the Government deprive the people of Nicaragua of the civil and political right to vote in a credible, inclusive, fair and transparent election in November 2021, but it is also continuing to fall short of its own commitments on human rights and fundamental freedoms. Moreover, the Nicaraguan people continue to be deprived of freedom of expression, association and peaceful assembly. Dissenting voices are silenced, more than 200 civil society organizations have been outlawed on flimsy grounds for political reasons, and state repression is unrelenting. We call on the Nicaraguan Government to bring an end to this repression and restore full respect for human rights, including labour rights, including by allowing the return of international organizations to the country.

In addition, we fully support the calls made by the Committee of Experts urging the Government of Nicaragua to review other unacceptable restrictions on freedom of association, including through the amendment of sections 389 and 390 of the Labour Code, which are currently in violation of the right of workers’ organizations to organize their activities in full freedom, as well as Act No. 1040 on the regulation of foreign agents. While taking note of the initiatives reported by the Government of Nicaragua for the promotion of the right to organize, we still observe serious violations of the Convention and the fundamental right to freedom of association in law and practice.

The EU will continue to monitor the situation closely and support the people of Nicaragua in their legitimate aspiration for democracy, respect for human rights, including labour rights, and the rule of law.

Government member, United Kingdom of Great Britain and Northern Ireland also speaking on behalf of Canada – The United Kingdom and Canada unequivocally condemn the human rights abuses and violations taking place in Nicaragua. Under President Ortega and Vice-President Murillo, the Nicaraguan authorities are repeatedly and systematically violating international human rights standards and failing to live up to their own country’s Constitution. The international community has a duty to hold the Nicaraguan authorities to account for their actions.

The United Kingdom and Canada regret that the ILO reports that no verifiable progress has been made since the report of the Committee of Experts. In particular, in relation to freedom of association, collective bargaining and industrial relations, the United Kingdom and Canada regret that the Nicaraguan authorities are continuing to carry out acts of persecution, intimidation and repression against multiple actors in the business sector.

The United Kingdom and Canada note that the Nicaraguan authorities have still failed to provide any precise information or documentation about the charges brought against employer leaders, the legal or judicial proceedings instituted against them, or the outcomes of the proceedings. The Nicaraguan Administration has also yet to provide comments on the Act regulating foreign agents, and the allegation that it places unacceptable restrictions on freedom of association.

The United Kingdom and Canada have repeatedly called for Nicaragua to fulfil its international obligations, including by respecting the human rights of all its citizens and bringing an end to all repression in the country. We have been vocal in condemning the Government’s constraint of political liberty and have urged the authorities to release immediately and unconditionally all those arbitrarily detained, including political and business leaders, trade unionists, journalists, students, human rights activists and those who participated in peaceful protests, and to cease their intimidation of civil society.

We call on Nicaragua to uphold its obligations regarding this Convention to respect and ensure that workers and employers are able to exercise their freedom of association rights free from fear, violence, arbitrary arrest and detention. We therefore strongly support the ILO in its request for further and more specific information from the Nicaraguan authorities on the right to organize, the promotion of collective bargaining and on collective agreements.

The Chairperson – I see that the Government of Nicaragua has raised a point of order.

Government representative, Minister of Labour – The point of order that we wish to raise is as follows: the subject matter is clear, and these statements that we have listened to, that we have heard, have absolutely nothing to do with the subject of the Convention, namely freedom of association.

Nicaragua has demonstrated, and provided information on, its additional progress in the area of freedom of association in the country. All economic sectors in Nicaragua, both public and private, have the right to freedom of association, and these statements are totally outside the legal order and are not in the spirit of the Convention, and much less of the ILO Constitution and Standing Orders.

We therefore request moderation and a return to the subject under discussion, namely freedom of association.

Government member, Bolivarian Republic of Venezuela – We have noted the Nicaraguan Government’s explanation that the individuals involved in this case were detained because they had been prosecuted for acts covered and sanctioned in national legislation and that are unrelated to their activities as employers.

Therefore, given the arguments of the Government of Nicaragua, it should be noted that criminal acts set out and sanctioned in national legislation are not covered by the Convention. We recall that Article 8 of the Convention establishes, clearly and categorically, that freedom of association shall be exercised in compliance with the laws of each country, and that therefore workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land in their activities.

We welcome the existence, as indicated by the Nicaraguan Government, of broad collaboration between the business association and the Government to strengthen its National Plan to Combat Poverty. We cannot overlook the creation, between 2018 and 2021, of 111 new trade union organizations in Nicaragua with over 3,900 members, and the updating of more than 2,800 trade union organizations, covering 222,370 workers.

As always, we call on the supervisory bodies to distance themselves from political considerations since, if they go beyond the limits in their comments, that will undermine their seriousness and credibility and harm the ILO’s objectives. This is something that we have affirmed in other forums, and we are concerned at the constant drift in these labour cases towards unnecessary political matters.

The Government of the Bolivarian Republic of Venezuela hopes that the Committee’s conclusions will be objective and balanced, with the aim of allowing the Government of Nicaragua to continue making progress and strengthening compliance with the Convention.

Worker member, Argentina – There are two elements to the case under examination. The first relates to the failure of the Government of Nicaragua to comply with the request of the Committee of Experts for detailed information on the reasons for the detention of the leaders of an employers’ organization.

The Government contends that the detentions are for criminal reasons, while the employers’ complaint indicates they are motivated by their activities as employers in opposition to the Government. The Committee of Experts has logically requested more information so that it can examine the matter.

In our view, it is necessary for the Government to respond to the request of the Committee of Experts without delay and provide further information, including the official judicial report, to give us the necessary information to examine the facts with a better understanding of the events.

The Workers’ position is clear: we want truth and justice, always, absolutely always. For this reason, all the information must be clarified by suitable means, and then, with the information in our hands, we will issue an opinion.

All of us here agree that these events are rooted in the 2018 crisis and its subsequent effects. That was a multidimensional conflict that had an impact on the economy, institutions and society in general. The restoration of peace requires a process of dialogue in which all sectors must work together. The social partners, governments and international bodies must cooperate to restore peace and harmony to the Nicaraguan people. We in the labour movement are playing our part in Nicaragua and the region to contribute to this difficult process, and we urge the Employers to do the same, and the Office to provide special support.

The second part of the case addresses technical aspects of labour standards and relates to sections 389 and 390 of the Labour Code, which provide that collective disputes shall be referred to compulsory arbitration once 30 days have elapsed since the calling of the strike. In our view, this provision must be amended in consultation with the social partners. While the Government argues that the regulation has fallen into abeyance, and that it has almost been repealed through lack of use in practice, it must nevertheless be revoked so that it does not become a latent threat.

Lasting peace can be established only through social justice, in accordance with our principles. Let us therefore work together to achieve lasting peace in Nicaragua as part of a process of economic development with an equitable distribution of income.

Government member, Plurinational State of Bolivia – This is a very important issue for my country, the Plurinational State of Bolivia, which respects the trade union freedoms set out in our Constitution, and all women and men workers therefore enjoy the right to organize in trade unions under the trade union principles of unity of union democracy and political pluralism, self-sustainability, solidarity and internationalism. In this regard, we have listened carefully to the information provided in relation to the protection of the right to freedom of association and the efforts that are being made by the Government of Nicaragua for that purpose.

We have taken note of and welcome the efforts made and we encourage the adoption of measures to continue strengthening this aspect.

We emphasize in this regard the establishment of over 100 new trade union organizations since 2021 and the official information that over 4,000 workers have joined unions. We also note the cooperation that is being mobilized between the chamber of employers and the Government for the implementation of the National Plan to Combat Poverty.

In contrast, we refute references to specific cases that have nothing to do with the implementation of the Convention and which endeavour to use dialogue bodies for political purposes, thereby making it difficult to engage in constructive dialogue for the benefit of all those involved. In this regard, we encourage the Committee to continue working with the Government for the implementation of its obligations deriving from the Convention within the framework of respect for its sovereignty and non-interference in the internal affairs of the country.

My delegation reiterates its solidarity and support for the fraternal people of Nicaragua.

Worker member, Bolivarian Republic of Venezuela – We reject the arguments put forward by the Employers, because this is a political issue, and is not a purely labour matter. Each country applies its own legislation when crimes are committed.

Nicaragua is subject to constant pressure and interference from external powers, which is limiting the entrepreneurship, development and economic growth of the Nicaraguan people.

Through the Bolivarian Alliance for the Peoples of Our America, we note that workers in Nicaragua enjoy all trade union rights. There are no grounds for determining that this principle has been violated.

The Committee of Experts has noted the compliance and progress made in relation to collective agreements in Nicaragua and the provision of information by the Government. The issues mentioned are surmountable and do not appear to constitute a barrier to understanding between the parties.

We therefore stand in solidarity with the country’s working class and its people, and we hope that they will continue to make progress towards solutions to the problems that have arisen.

Government member, Cuba – My delegation has taken note of the information provided by the Government of Nicaragua in relation to its national laws and the Convention. The information provided by the Government contains details regarding the exercise of freedom of association in the country.

It should be emphasized that the Nicaraguan Government has maintained communication and cooperation with the Committee of Experts, thus honouring its commitments to the Organization.

Cuba has on several occasions expressed its rejection of the use of ILO supervisory mechanisms to channel allegations of a political nature. We consider that the policies of support to workers implemented by the Government of Nicaragua, a founding Member of the ILO where over the past four years 119 new trade union organizations have been established and 3,902 workers have joined them, must be analysed impartially.

Finally, we reiterate the importance of continuing to promote tripartism and social dialogue in each country in order to promote the spirit of dialogue and cooperation. We hope that the conclusions of the Committee on this debate will be objective, technical and balanced on the basis of the information provided by the Nicaraguan authorities.

Government member, Sri Lanka – The Government of Sri Lanka welcomes the commitment of the Government of Nicaragua to ensure the implementation of the provisions of this Convention. Sri Lanka commends the constructive engagement of the Government of Nicaragua with the Committee of Experts. Sri Lanka holds that country-specific initiatives should be based on the universal principles of the sovereignty and equality of all States and with due regard for the laws and institutions of the country concerned. We encourage the Committee to engage in a constructive dialogue with the Government of Nicaragua in respect of the matters raised.

Worker member, Cuba – We consider that the representatives of the Employers’ group have presented a case that is not related to the full exercise of the right to freedom of association of the Nicaraguan employers who are under investigation for alleged crimes, since freedom of association not only involves other types of freedoms recognized in national legislation, but also has limits in terms of respect for legal process, the Constitution and laws of Nicaragua.

Nicaragua is a sister country in our region that is constantly attacked, threatened and blockaded by imperial policies that cause it to suffer sanctions which damage its economy and the working population, for which reason no social partner can take it upon themselves to destabilize social peace and the well-being of Nicaraguans.

On the other hand, we consider relevant the position taken by the Government of Nicaragua with respect to the exercise of freedom of association and collective bargaining as the strategic principles of the ILO, as the observations contained in the report of the Committee of Experts do not constitute in practice an obstacle to the development of effective social dialogue at the national level or the resolution of the problems that arise in this case.

Nicaragua is a sovereign State that defends the fundamental principles and rights at work of both workers and employers, and which strives for sustainable human development and greater social justice for all.

Interpretation from Chinese: Government member, China – We have read attentively the report of the Committee of Experts and its observations on the application of the Convention by the Government of Nicaragua. We thank the representative of the Government for her presentation.

We have noted that the Government has always attached importance to and protected freedom of association and organization. Over the years, the Government has committed to creating a relationship of trust among the members of different unions, promoting and protecting their freedom of association, simplifying the registration procedures for trade unions and offering various training opportunities to trade union leaders. These measures have greatly promoted trade union development. Between 2018 and 2021, 111 trade union organizations were created, joined by 3,902 workers; and 2,884 trade union organizations were completed, covering 222,370 workers. We have also noted that through round table dialogues the Government settles labour disputes between the public and private sectors and this has achieved positive outcomes.

We believe that the review of this case should focus on the status of implementation of the Convention by Nicaragua. The primary mandate of this Committee is to review the status of application of ratified Conventions by Member States, not to interfere in their internal affairs. It is necessary to stress that all governments shoulder the responsibility of maintaining the rule of law and social order and protecting the safety of their citizens in their respective countries.

Unlawful and criminal activities are prohibited in any country. However, if someone violates the law when exercising their rights and affects the lawful rights and interests of other citizens, they shall be sanctioned by law.

We trust that this Committee, when formulating its conclusions, will uphold objectivity and impartiality and reflect the real situation on the ground and progress made by the Government in implementing the Convention in order to encourage them to do better in this regard.

Interpretation from Russian: Government member, Russian Federation – The Russian Federation shares the views of the Government of Nicaragua on freedom of association. We think that the accusations against the Government are unfounded. They do not reflect the actual situation relating to the application of the provisions of the Convention in the country where trade union organizations have the right to associate.

Government representative, Minister of Labour – I have listened with great attention to the interventions by the representatives of the Committee, and in the first place I ask very respectfully that the interventions by the representative of the United Kingdom and the representative of the EU are not included in the report. I consider them to be harmful and not in accordance with the spirit of the discussion in this Conference.

The Government of National Unity and Reconciliation welcomes the support for our country expressed by the various delegates and nations in this Committee. The State of Nicaragua once again resolutely refutes the content of a report that does not correspond to the spirit of the Convention and we also refute any comments or interference in internal affairs that are prejudicial to sovereignty, to our sovereignty, and the stability of working Nicaraguan families, as it should be pointed out that the Convention clearly provides in Article 8 that, in exercising their rights, employers’ and workers’ organizations shall respect the law of the land.

Finally, we reiterate that our Government will continue with the implementation of labour laws, thereby strengthening the right to freedom of association, labour stability, freedom of enterprise, social peace and tripartism.

We ask that the interventions by France, on behalf of the EU, the United Kingdom and Canada are not included in the record as they refer to these matters that are not related to the Convention, as we consider them to be matters that must not be addressed in this Committee.

Moreover, it is important, and also very worrying for us, that the representative of the Employers who is legally accredited to participate and speak at this 110th Session of the Conference has been excluded. We therefore consider that this decision is not respectful and is prejudicial to our family, our men and women workers.

I wish to ask for authorization for the Employer representative to be heard and to speak with all due respect and legitimacy since, as we said, he is duly accredited to participate with full credentials under the ILO Constitution and Standing Orders.

Employer members – I thank very much the distinguished Minister of Labour for her presence in the Committee, but at the same time we are bound to express our deep concern that detailed information has not been provided concerning the detention of the leaders I referred to in order to clarify whether or not it is related to freedom of association. The mere fact that a government says that it is not related is not sufficient. Indeed, on the contrary, this attitude by a government when appearing before this Committee leaves much to be desired.

The attitude displayed by the Government of Nicaragua precisely reflects the unwillingness to listen to arguments that are different from its own line of thought. We see this in relation to the interventions by Governments in this Committee that it has asked to be removed from the record.

And, in particular, by the fact that it wishes to impose an Employer representative.

We have not registered any speaker, and there are many who wish to intervene in this case, and I am precisely the spokesperson for all of them, for all employers, and particularly for the spokesperson that you wish to include on behalf of the Employers: first, he is not registered with this Committee; and second, there is a formal process in the Employers’ group at this Conference in relation to the representativity that he claims on behalf of Employers.

So here is also a specific indicator of this attitude.

There is a law, Act No. 1055, with a single section, which I will not read out in full, which speaks of the defence of the rights of the people, and provides that Nicaraguan nationals who call for, exalt or applaud the imposition of sanctions against the State of Nicaragua and its citizens or any act that is prejudicial to the highest interests of the nation, shall be considered traitors against the fatherland and shall be liable to exclusion from public office and elected office and shall be liable to criminal prosecution.

However, Act No. 1040 on the regulation of foreign agents, in section 14, also provides that natural persons or associations of Nicaraguan or other nationality who act as foreign agents shall, under penalty of legal sanctions, refrain from intervening in matters, activities or issues relating to domestic or foreign policy.

Nicaraguans cannot speak of domestic policy, such is the restriction of thought that exists in Nicaragua.

With respect to Article 8 of the Convention, to which the Minister referred, she forgot to mention the second paragraph, which provides that: “The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.” In Nicaragua, the law is being used to undermine the freedoms of employers, but we call on workers to understand that the same can happen to them if they do not follow the ideological lines set by the Government.

In 1989, which was the last occasion on which this case was examined by the Committee, the Employer spokesperson said that it had been examined almost every year since 1981, and it seems as though it was yesterday, with the same Government and the same current President.

The leaders of employers’ organizations, and particularly COSEP, have been systematically detained, gagged, imprisoned and murdered.

Thirty years later the same is continuing to happen. This is an extremely serious matter.

Freedom of association totally lacks meaning when civil liberties do not exist. The rights conferred upon workers’ and employers’ organizations are based on respect for civil liberties, such as the safety of the person and freedom from arbitrary arrest and detention.

The detention of employers’ leaders for reasons related to legitimate advocacy constitute a serious violation of their rights and of freedom of association.

We want to begin by calling on the Government to facilitate social dialogue in the presence of the ILO. It is fundamental to rebuild processes of trust and to follow the pathways for putting forward the claims of the social actors.

We ask this of all States, but in particular we are making this request to Nicaragua.

We demand the immediate release of Michael Healy, Álvaro Vargas Duarte, José Adán Aguerri, Luis Rivas and Juan Lorenzo Holmann. We also call for the repeal of Act No. 1040 on the regulation of foreign agents and Act No. 1055 on the defence of the rights of the people to independence, sovereignty and self-determination, which restrict the exercise of freedom of association and freedom of expression.

Finally, it is necessary for a high-level mission to visit the country and observe the situation directly. In conclusion, in view of the elements that we have heard, and particularly the Government’s reply, it is necessary for the conclusions on this case to be included in a special paragraph.

Worker members – The Worker members have taken note of the information and of the responses provided by the Government and we have also listened carefully to all the speakers and their valuable interventions. A frank and open discussion with parliamentary language is essential for the good functioning of our supervisory system. As we expressed in our opening speech, our group takes note with concern of the allegations of the arrest and detention of three employer leaders and the necessity for freedom of association, which includes respect for civil liberties, the rule of law and respect for due process.

We urge the Government to provide all the information requested by the Committee of Experts in this regard, including the legal or judicial proceedings instituted and their outcome. We also urge the Government to amend the labour law to ensure that the right to strike is fully respected in line with the Convention and the observations of the Committee of Experts and, in particular to: amend sections 389 and 390 of the Labour Code; and also amend Act No. 1040 on the regulation of foreign agents, adopted on 15 October 2020; and address the allegations that several sections therein place unacceptable restrictions on freedom of association.

Regarding the efforts deployed by the Government to protect and promote the right to organize, we note with interest the results achieved between 2018 to 2021 and we urge the Government to continue to implement initiatives and carry out activities for the promotion of unionization and the protection of the right to form and join unions.

The Chairperson – The Government member of the United Kingdom as asked to be able to exercise the right of reply to the intervention by the Government of Nicaragua.

Government member, United Kingdom – The United Kingdom thanks Nicaragua’s Minister of Labour and other distinguished delegates for their comments throughout this discussion. The United Kingdom would like to respectfully request that the statement by the United Kingdom and Canada be recorded in full for the benefit of the Committee. The statement was fully in line with the remit of the Committee and this discussion regarding Nicaragua’s compliance with the Convention.

Conclusions of the Committee

The Committee took note of the written and oral information provided by the Government representative and the discussion that followed. 

The Committee deplored the persistent climate of intimidation and harassment of independent workers’ and employers’ organizations.

The Committee noted with concern the allegations of the arrest and detention of employer leaders.

Taking into account the discussion, the Committee urges the Government, in consultation with the social partners, 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 adopt measures to ensure that such acts are not repeated;

- 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;

- 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;

- 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 Committee recommends that the Government avails itself of ILO technical assistance to ensure full compliance with its obligations under the Convention in law and practice.

The Committee also recommends that the Government 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.

The Committee requested the Government to submit a report to the Committee of Experts by 1 September 2022 communicating information on the application of the Convention in law and practice, in consultation with the social partners.

Government representative, Minister of Labour – The Government of Nicaragua has listened carefully to the conclusions of the Committee on the individual case of Nicaragua concerning the alleged violation of the Convention.

First, the State of Nicaragua reaffirms its total disagreement with the Committee’s decision not to allow the duly accredited Employer representative of Nicaragua to speak at the 110th Session of the International Labour Conference.

Furthermore, the Government of Nicaragua requested on 6 June 2022 an amendment to the draft minutes of the discussion of the case of Nicaragua in relation to certain inappropriate language used by the representatives of France on behalf of the EU, and of the United Kingdom and Canada. This request was not taken into account by the Committee.

It is very striking that the conclusions include references to intimidation and harassment of workers’ organizations, which are totally false, particularly since at no time were any accusations made by the Nicaraguan workers’ organizations or the Worker spokesperson.

In conclusion, and in light of the above, the Government of Nicaragua once again totally rejects the conclusions adopted by the Committee as being politicized, interfering and disrespectful, and not in keeping with the real situation. Moreover, the conclusions bear even less relation to the content and spirit of the Convention, which Nicaragua has been complying with and reporting on in a timely manner to the International Labour Organization.

Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

A Government representative referred to the observations made by the Committee of Experts concerning the General provisional Act on means of communication of 1979 which, according to the Committee of Experts, imposed under section 3 of this Act, certain restrictions upon the freedom of information and freedom of expression for employers and workers. The representative stated that this Act had been repealed by the decree adopted by the National Assembly on 21 April 1989 which contains the new Act (No. 57) concerning means of social communication. The repeal of these former provisions and its complete substitution can be found in section 50 of Act No. 57. Taking into account the concerns and observations of the trade union and employers' organisations, as well as the suggestions made by the political opposition parties, the new legal provisions on this subject offer full guarantees of freedom of speech and freedom of information. All the standards alluded to by the Committee of Experts have been eliminated and the rights and responsibilities concerning the means of communications have been clearly defined. The previous censorship has been completely eliminated thus guaranteeing the free and responsible use of the media for all political and trade union organisations. Thus, full response has been given to the observations made by the Committee of Experts on this subject.

With regards to the changes in labour legislation concerning which expressed and detailed recommendations have been made, the Government representative indicated that the necessary consultation process has been in fact initiated with a view toward issuing a new labour code which will respond both to the observations made by the pertinent ILO bodies and, at the same time, to the overall situation which now prevails in the working environment of the country. As was noted by the study mission which visited Nicaragua at the request of the Government from 26 September to 6 October 1988, at present there are four different drafts of a labour code presented by political opposition parties and various trade union organisations.

The commitments made by the National Assembly during the first months of this year in connection with the fulfilment of the agreements and responsibilities assumed by the country at the Central American presidents Summit at Costa del Sol on 15 February 1989, prevented the formal start of parliamentary debate on this subject. The consultation process with all the bodies concerned, however, has continued. The Nicaraguan Government will officially request the technical assistance of the ILO in order to organise and implement the process of discussions and tripartite consultations through seminars or other activities considered suitable for this purpose. This request will be presented during the present Session of the Conference.

Moreover, concerning the practical exercise of the rights and freedoms of association existing in Nicaragua, the Government representative indicated that the study group which visited the country, and which was able to visit all the trade union and governmental bodies that it wished to see, expressed its thoughts about the trade union situation in this country. In this regard, on page 44 of its report (document GB 241/5/9) study mission stated "despite this situation, which is difficult from every point of view, a trade union movement and pluralist associations do exist in Nicaragua". He felt that this expression very faithfully described the real situation in Nicaragua at present in the field of freedom of association.

With regard to Convention No. 98 the Government representative expressed that indeed as noted by the Committee of Experts, even though there had been no official abrogation of Decree No. 530 which imposes participation of the Ministry of Labour in collective bargaining, this provision was in fact no longer applied; today the National Labour and Wages Organisation System is merely a reference group and employers and workers can negotiate their wages between themselves. Thus the Ministry of Labour has practically restricted its own role to simply that of a registry for collective agreements. In 1988, all the collective agreements arrived at or revised by workers and employers were recorded without any obstacle, as pointed out by the Committee's report and verified by the above-mentioned study mission. The Government wanted to call the present Committee's attention to the efforts which have been made in the co-untry and the strong will of the Government to create effective conditions for consultation and tripartite dialogue. As a result of tripartite agreements; important, fiscal, financial and administrative policies have been advocated in order to stimulate the economic and productive activities of the employers, for example, conclusions had been drawn from the First tripartite National Meeting of the Lifestock Sector held during the first two weeks of April 1989.

Within the context of the political efforts made to finally find a negotiated solution to the Central American conflict, an amnesty was pronounced for the Somosa National Guards. The electoral law was amended thus responding to many of the concerns voiced by the opposition parties. The above-mentioned Act on means of communication of 1979 was repealed and, in general, national political prequisites are being established for an early holding of national elections in February 1990. One of the most recent measures has been the establishment of the Supreme Electoral Council with the participation of the political opposition parties which have already reached more than 20 organisations ready to participate in the elections. Even former leaders of the counter revolution ("contrarrevolución") have been covered by the amnesty; they may participate in the political compaign. All these efforts have been made despite the fact that the war of aggression against Nicaragua continues.

Finally the Government representative stated that his Government was firmly convinced that the ILO as well as other UN agencies would give their support and experience to the consolidation of democratic society, pluralistic and social justice contributing to the creation of conditions necessary for full tripartite consultation and dialogue among all the sectors.

The Secretary-General of the International Employers' Organisation (IEO) stated that his organisation approached the question before the present Committee concerning freedom of association in Nicaragua feeling a lot of scepticism mixed with very little optimism. As allegations, complaints and representations are raised before the Committee on Freedom of Association of the Governing Body practically every year since 1981, the leaders of the employers' organisations - in particular the Superior Council of private Enterprise (COSEP) have been systematically detained, muzzled, imprisoned and assassinated. In this regard the speaker thanked the previous Director-General of the ILO, Franóois Blanchard, who did not hesitate to intervene a number of times before the Government of Nicaragua. These leaders were charged with the crime of openly expressing themselves on trade union rights, the recognition of independent social progress and the economic policy of the country.

Finding itself faced with the probability of the nomination by the Committee of Commission of Inquiry, the Government and the courts have recently freed an economist of the COSEP; he was cleared of charges after he had already endured 11 months in the Sandanista prisons. Still under international pressure, a member of COSEP who had been condemned without proof by the popular courts to 28 years in prison, has just been declared innocent. It is clear that the Government cannot ignore international opinion; this is what justifies a small dose of optimism with regard to ILO action.

As concerns the legislative plan, the situation is hardly better than in practice. In fact, after all the requests - reiterated year after year by the Committee of Experts - to amend the legislation concerning trade union rights and civil liberties in order to bring them into conformity with Conventions Nos. 87 and 98, the Government has responded with promises which have required the patience of both the Committee on Freedom of Association and the present Committee in that practically none have been kept. It is enough to mention three examples among many which justify the scepticism with which the statements and promises made here with regard to Conventions Nos. 87 and 98 must be received. First, notwithstanding the observations made by the Committee of Experts and the amendments promised, no collective agreement is valid in Nicaragua without the consent of the Government and the National Labour and Wages Organisation System (SNOTS). Second, the new Act on means of communication adopted in 1989 still permits almost all the abuses which were criticised by the Committee on Freedom of Association. Decrees Nos. 512 of 1989 and 888 of 1982 which violate basic rights to information and freedom of expression are still in force, and the Committee on Freedom of Association was of the opinion that the reform made was insufficient. Third, contrary to what the Government representative of Nicaragua has stated, and contrary to the commitments made by Nicaragua at the time of the study mission carried out by a representative of the Director-General in September 1988, no tripartite consultation with the aim of the adoption of a new labour code has taken place.

The present Committee should take into account all these elements when examining the situation prevailing in Nicaragua in the area of freedom of association. The IEO considered that the situation, in law as well as in practice, was in flagrant contradiction with the obligation freely assumed by this country.

The Employer member of Nicaragua observed that for three consecutive years the Committee of Experts has made comments on the need for national legislation to be brought into conformity with Convention No. 87. Referring to the conclusions and recommendations made by the Committee on Freedom of Association of the Governing Body, he stated that employers and independent trade unions had not been consulted on certain amendments made to legislative provisions, or on the provisions of the labour code which were announced. The Tripartite Advisory Committee to study questions related to international labour standards has not been created either. This is the case despite the fact that the Government offered that this Committee would start its work in March 1989.

The Employer member of Nicaragua stated that the media director of the Ministry of the Interior denied authorisation for the broadcasting of a radio news programme "La Nacion." Its director of the programme, who made the request, had received only evasive replies from the person in charge of the media department. The truth is that despite the fact that the state of emergency has been lifted, there are still decrees such as Nos. 511 and 512 which restrict freedom of expression and which have not yet been repealed.

With regard to the detention of leaders of employers' organisations, the Government did not extend amnesties, as it had promised to the ILO Governing Body, but rather it granted pardons.

The Employer member referred to the information concerning the right to strike, mentioned in the Committee of Experts report, stating that these strikes were due to the courageous and decisive attitude of the workers; on several occasions, as the whole world knew, the repression suffered by these workers was very severe. By virtue of the reiterated and continuous violation of ILO Conventions committed by the Government throughout the years and, in particular, as concerns Convention No. 87, he expressed the hope that the Government would take the necessary measures to strictly comply with the provisions of these international instruments.

Finally, with reference to the application of Convention No. 98, the Employer member stated that Decree No. 530 of 24 September 1980 provided under section 1 that collective agreements must have the approval of the Ministry of Labour in order to enter into force. This Act has not yet been repealed despite repeated requests by the Committee of Experts.

The Employer member of Argentine stated that it had been several years since the restrictions of the freedom of employers' organisation in Nicaragua had been noted. The principle of freedom of association and the genuine representative nature of employers' groups was put into question and the tripartite dialogue had been stripped of any legitimacy. There can be no true tripartite dialogue, either at the national or the international level, if the representatives of the various sectors are not respected. According to the speaker, the Latin American employers wanted to put on the record the absence of progress with regard to the conformity of the present situation with Convention No. 87. The statements which were just made by the previous Employer members indicated that measures to restrict the role of the authentic employers' organisations were frequently taken, whether it be by disregarding its representative nature or limiting its possibilities for expression. Either way, freedom of association, and freedom in general, is compromised. According to the speaker, the Employer members were determined to insist that Convention No. 87 be fully applied in practice. In order to fulfil the objectives set out by this Committee, the Conference, and the ILO, an authentic tripartite dialogue which respects the rights of the individuals who make up the organisations must be set up.

The Employers' members stated that this case of freedom of association concerned both workers and employers. The present Committee had been investigating the situation in Nicaragua with regard to Conventions Nos. 87 and 98 for a very long time. Furthermore, the Committee on Freedom of Association has had before it a number of complaints. The Government of Nicaragua, however, has systematically slowed the examination of these questions, which can be clearly seen in paragraph 20 of the Committee of Experts' general report. This report also indicated that excessive restrictions upon the freedom of association remain even after the lifting of the state of emergency. In practice, those who dare to criticise the Government have become the object of sanctions which often were harsh. The most recent example is that of the Director of an institute of economic research of an employers' organisation, shortly before the Conference, was freed after nine months of imprisonment thanks to pressure from the ILO.

This case is only one among many which confirms that freedom of expression is considerably restricted. The new Act on means of communication mentioned by the Government representative does not remove these restrictions, as had been recommended in the Committee on Freedom of Association's last report. In this context of limitations upon fundamental human rights the adoption of an appropriate labour code cannot be expected. The Nicaraguan Government, during earlier discussions, made promises concerning, for example, the re-establishment of trade union pluralism and the cessation of intervention in the formation of professional organisations. It was stated that consultations were in progress with workers and employers on these points but, in the last report by the Committee on Freedom of Association, it was very clearly stated that the most representative workers' organisation in Nicaragua, COSEP, had not been consulted. In this context, it is not surprising that there are no collective agreements. The repeal of the Decree of 1980, by virtue of which collective agreements must obtain the approval of the Minister of Labour, has often been requested. Although this obligation may exist in several countries for particular sectors, in this country it is a general obligation applicable to all sectors. If this decree is no longer applied, why is it not repealed?

With regard to wages, the social partners must fulfil certain requirements. This voids collective bargaining of its meaning.

It must again be stated that in practice, freedom of association, the right to organise and the right to collectively bargain raise certain objections and that the representatives of professional workers' and employers' organisations continue to be the object of serious attacks. This concerns fundamental rights which must be guaranteed to employers, as well as workers, and which is certainly not the case. It must be deeply deplored that the application of Conventions Nos. 87 and 98 has only been met with obstacles.

The Workers' members stated that, although the Committee on Freedom of Association had been presented complaints concerning the non-observance by Nicaragua of Conventions Nos. 87 and 98, it was good that the Government expressed itself before this present Committee because that would be very useful to the Committee on Freedom of Association.

In order to touch upon this discussion in a positive and constructive manner, the Workers' members expressed their wish that the political agreements signed in Central America would bring peace, stability and economic progress to the countries of that region, and as a result freedom, democracy and social progress.

This being said, like the Committee of Experts and the Committee on Freedom of Association, the present Committee has noted for a long time that Conventions Nos 87 and 98 are not applied either in law or in practice. In this regard, the allegedly exceptional situation in this country has served as a smoke screen for too long.

Serious difficulties persist: free trade union organisations are impeded from completing their mission and Decree 530 has not been repealed; even if the Government restricts itself to merely registering the agreements concluded by the employers' and workers' organisations, as long as Decree 530 has not been repealed the danger of impeding free bargaining still exists.

Furthermore, certain improvements should be mentioned even if they are only partial improvements. In fact, trade union leaders were freed and a certain number of political changes occurred, which is a good omen for the installation of a system of freedom of association hand-in-hand with a system of political liberty. It would be useful to know if the new Act, which replaced the Act on means of communication of 1979, (which was not in conformity with Convention No. 87), fully conforms to this Convention. This issue will return to the Committee on Freedom of Association for verification.

Two interesting elements were raised with regard to the new draft labour code. First, consultation with the social partners is provided. Second, the Government will request ILO assistance in the form of seminars in which the representatives of various organisations will participate so that this code may permit the full application of the international labour Conventions. The question remaining was whether all the representative employers' and workers' organisations would be associated in this consultation and would participate in the seminars envisaged. This is a very important question upon which trade union pluralism and freedom of complete action for trade union organisations depends. It would be advisable to follow very closely the developments of this process so that the Committee of Experts, the Committee on Freedom of Association and the present Committee can assure themselves that the progress which has occurred will become more concrete and that fundamental Conventions such as No. 87 and 98 will be fully applied.

The Worker member of Nicaragua stated that a pluralistic debate was taking place in his country between the employers and workers on the most urgent problems of the economy, such as the reactivation of enterprises which were affected by the war, and requests by employers for incentives for production and by workers for social benefits and participation in the management of enterprises. Freedom of expression exists in the country and workers as well as employers have channels for expressing their different opinions. The speaker stated that it had not been easy to adopt Act No. 57 on means of social communication in the Legislative Assembly. First of all, a discussion was entered into among the different sectors of the country, through the mass media, and lastly in the Legislative Assembly. At the request of the trade union organisations the National Communications Council was created. This Council will have a deliberative and consultative nature.

In November 1988, the first trade union meeting took place. The main subjects examined were the labour code and the creation of a law for workers' participation in enterprises. The labour code was given priority and as a result several preliminary drafts were formulated, one of which was presented by the organisation of by the speaker. Some organisations proposed the modification of the present code so that it would include the comments made by the Committee of Experts. For its part, the organisation of the speaker was in favour of the drafting of a new labour code, which is the main demand of the political parties who will participate in the 1990 elections. The workers and employers are bilaterally negotiating collective agreements. In many cases they have been negotiated with the economic capacity of the enterprises taken into account, and in some cases, the employers have asked that negotiations be postponed. The delegates of COSEP and National Union of Farmers and Ranchers (UNAG) can confirm this. A tripartite meeting took place on 26 and 27 April devoted to agricultural production for 1989-90 when bank debts for cotton undertakings were forgiven and bank credit was approved for different areas of production. The collaborative spirit which exists between workers, employers and the Government must also prevail in the present Committee in order to stimulate communication, with the goal of reconstructing a country which finds itself between war and peace.

The Worker member of Spain stated that his country followed the situation in Nicaragua very closely. Spanish trade unions had sent workers' brigades to help build houses in Nicaragua. Through these visits, they were able to verify that a truly pluralistic discussion exists in the country. They also verified that the restrictions which existed during the state of emergency have completely disappeared and that, now, a true democratic opening has occurred which has made freedom of expression for trade unions, employers and political parties possible. The conclusions reached by the Spanish trade unions were confirmed by the newspapers which recognised that Nicaragua was faithfully applying the agreements to which the workers' spokesman had made reference. Seemingly, the same conclusion was reached by the Spanish Government which recognised that Nicaragua had faithfully complied with the "Esquipulas II" agreements.

The Worker member of Ecuador joined in the opinion expressed by the Workers' spokesman, according to which the fundamental desire was to see the normalisation of the situation which prevails in the countries of Central America, and particularly in Nicaragua. The desire of all Latin American workers is that this country be allowed to find its own destiny. The aim of the ILO was to bring about such progress for justice and shared development for peace: Beyond the limitations of a judicical nature of the standard setting instruments of the Organisation, the workers must be protected. This is precisely the task of the present Committee. Furthermore, this Committee should be concerned that what was stated here actually be carried out, and not remain merely good intentions. Flexible machinery was needed to bring into practice these good desires. The problem in Nicaragua is more political than legal. The principal cause of these problems must be eliminated. Once that cause has been exhausted, these problems will no longer exist. In spite of the suffering in Nicaragua caused by the war, this country has made progress in the fields of health, housing and education. The industrialised countries are in a better position to comply with the Conventions; they have greater independence in taking decisions. On the contrary, the countries that, like the Latin American countries and those of the Third World, find themselves burdened with foreign debt, suffer economic dependence. The conditions imposed by the International Monetary Fund negatively affect the application of the Conventions. In conclusion even when these countries have the desire to fully comply with the provisions of the Conventions, they are not in a position to do so.

The Worker member of Uruguay stated that for some years this Committee had been dealing with the complaints against Nicaragua. The Government had responded to the complaints with valid arguments. In 1988, a study mission wrote a positive report with respect to the situation in the country. The state of emergency was lifted and trade unions were given every right, including the right to strike which had figured in the mission's report. Sixty strikes have been registered and no trade union leaders have been assassinated, as in the case in other Latin American countries. Furthermore, Act No. 57 on the means of communication which permits employers and workers to freely express themselves, has been adopted. proposals have been made for the creation of popular associations and political parties. The Government of Nicaragua, as the study mission stated, intends to promote economic and social consultation. This is a matter of fundamental values taking into account the situation of war that prevails in the country. The workers and employers must work together for the reconstruction of the country. The Government of Nicaragua is currently entering into discussions with the various trade union organisations with a view to the promulgation of a new labour code which will soon be the object of debate in the Legislative Assembly. Tripartite consultation is presently taking place under the auspices of the ILO. Amnesties have been granted to reinforce the will for peace and democracy in Nicaragua. The Supreme Electoral Council was created with a view to the elections which will take place in February, 1990. Twenty political parties, which enjoy full freedom of expression, will participate in these elections. The workers of Uruguay welcomed the progress made in Nicaragua despite the immense difficulties that the Government has faced. Nicaragua has made efforts to comply with international labour standards and it is fitting to take note of the progress made in this regard.

The Worker member of Venezuela stated that in August 1988 he led, at the invitation of organisations which had no links with the Government a pluralist committee of a confederation of workers' trade unions of Venezuela to Nicaragua. He was able to note that there was freedom of expression and freedom of association and that organisations that did not share the opinions of the Government were provided with all the necessary facilities to exercise their functions. In this respect, he stated that it would be necessary to look for the points of convergence between all of those who did not share the Government's position. Finally he stated that there should be compliance with the Conventions but that the Nicaraguan Government was confronted with obstacles, as much from the inside as from the outside, which prevented them from ensuring complete respect.

The Workers member of the United States stressed that although the Government representative had communicated some encouraging information about what was being done or what was intended to be done, there was as yet no specific information communicated in report form to the Committee of Experts for their review and evaluation. The responses made by the Government representative to the points raised by the Committee of Experts were very general. He requested the Government representative to respond in more detail concerning the measures to be taken with regard to the following recommendations raised in the Committee of Experts' report: to guarantee the right to organise for public servants and self-employed workers in rural and urban sectors; to remove excessive limitations on the exercise of the right to strike; to amend the provision on the general prohibition of political activities by trade unions, and to abolish the restrictions concerning the formation of trade unions.

Finally, with regard to Decree No. 530 of 1980 which makes collective bargaining agreements subject to the approval of the Ministry of Labour, he stated that the Committee of Experts and the present Committee had traditionally been of the opinion that it was not enough for a decree containing provisions contrary to ILO standards not to be used in practice, but that the legislation would have to be repealed.

The Workers member of the United Kingdom stated that when a country undergoes a tremendous upheaval such as that experienced by Nicaragua, it must be recognised that problems still remain even though signs may exist that suggest it is emerging from those difficulties. The judgement which must be made is not whether everything is going to be immediately perfect, but whether as a general rule progress is being made towards the objectives promoted by the ILO. There were a number of questions raised by both the employers' members and the workers' members which needed to be answered. He associated himself with the request made by the Workers' spokesman for an assurance that all truly representative trade unions are given legitimacy by the laws of the land. These were hard questions which deserved firm answers.

The situation gave rise to particular concern as regards the public service, in particular, civil servants. He asked the Government representative to assure unequivocally that civil servants would be granted the right to organise and that this right be guaranteed in the new labour code. His own opinion concerning the Government's good will would depend upon the answers given to these questions.

Finally, the final judgement would depend on the events occurring in the coming year when the outcome of what has been promised can be seen. Some governments made promises, the fulfilment of which seemed to be put off year after year. Next year the present Committee would be entitled to expect full results from the promises made by the Government representative.

The Government member of the USSR stated that the goal of the discussions before the present Committee was to guarantee social justice. In order to do this, it was necessary to be fair in the evaluation of concrete situations. The case of Nicaragua was a typical example of this concern.

It was not only a question of making remarks concerning the legal machinery which guaranteed the application of conventions, but also a question of assessing a society. Nicaragua could not be compared to other countries without taking into account the war, the destruction and the economic difficulties through which they have suffered for many years. The application of Conventions depends on the economic and social situation of a country and, therefore, in order to evaluate the situation fairly it was necessary to verify whether there had been progress towards the installation of social justice, which is the ultimate aim of these Conventions.

Taking into account the political and social situation which exists in the country, the Government representative gave adequate proof that his Government tried to ensure respect for the requirements of Conventions Nos. 87 and 98. A democratic process has started in Nicaragua. progress has been made towards trade union pluralism and it would be fair to adequately appreciate the efforts made by the Government to apply the provisions of Conventions Nos. 87 and 98. The speaker stated that he was convinced that the Government of Nicaragua would follow up on its promises and that it would meet its obligations.

The Government member of Venezuela stated that the object of the discussion was to promote favourable conditions for the application of Conventions. She stated that in the present discussion, there were a series of positive aspects as regarded the application of the Conventions which had been hightlighted by the various speakers. The Government had demonstrated its willingness to engage in dialogue by giving facilities to the study mission, sending information to the supervisory bodies and supplying detailed and positive information to the present Committee. The study mission had noted certain restrictions but it had also pointed to signs of progress. The speaker expressed the hope that the present Committee would take note of the positive developments that had taken place and that the situation would continue to evolve favourably.

The Employers member of the United States requested the Government representative to indicate what the Government intended to do with respect to freedom of association of employers, the recognition of COSEP, the incarceration of employer leaders and the representation of employers, He considered that the present Committee, in its conclusions, should make some specific reference to the fact that real problems existed as regards the freedom of association of employers.

The Government member of Cuba stated that the interventions of previous speakers had pointed to the advances achieved in finding solutions to the problems raised by the Committee of Experts. The Government had shown its goodwill. In addition to the social problems which the Government had inherited, it had to face up to others that were the result of situations foreign to Nicaragua. She expressed the wish that the Committee of Experts and the present Committee would take account of the report and the results of the study mission (which had taken place with objectivity and impartiality) and that its findings would be reflected in the comments of the Committee of Experts and in the present Committee. The contents of the study mission report and the statements made by the Government representative of Nicaragua showed that there had been progress towards a better implementation of the Convention.

The Government representative, replying to the comments and questions made by Workers' members of the Committee, stated that: (1) as regarded the guarantee of the right to unionise of self-employed workers in the urban and rural sectors, the Constitution of Nicaragua fully guaranteed the right to form trade unions and to organise, and the Government hoped that this principle would also appear in the Labour Code which was currently the subject of full debate, (2) the restrictions on the right to strike had been completely suspended; (3) the provisions in the Code which prohibited political activities by trade unions was entirely out of place with reality in Nicaragua since, in keeping with their political preferences, trade unions had developed activities which they considered to be adequate for their interests and therefore this provision was not worth maintaining; (4) as regards the possibility of forming free trade unions, he pointed out that in Nicaragua there was no division between free trade unions and trade unions which were not free since. by their very nature, and because of the nature of the process of transformation which the country was going through, the unions were free; (5) Decree No. 530 was no longer applied in practice and the Ministry of Labour saw no objection to contemplating the possibility of its prompt repeal; (6) the Government was convinced that the legislation guaranteed the fullest freedom of association to public servants, a right which already existed in practice; (7) the question of granting the right to strike to civil servants would be discussed with the public servants' union organisations and other workers' organisations, but it was not yet possible to give a categorical reply as to whether this right would or would not be allowed, since this subject had to be examined in the light of all possible repercussions; (8) the Labour Code and the labour law revision would be debated with all the trade union organisations without exception, and this was the political will of the Government as regards the way in which the labour legislation would be modified.

Replying to the questions and concerns raised by the Employers' members, the Government representative stated firstly that he was surprised by the tone and the way in which they had been put, and this showed the persistence of a serious communications problem and a problem with genuine desire for dialogue, all of which made it difficult to arrive at common ground. He stressed the following points: (1) the imprisonment of employer leaders had not been due to the fact that they were employers, but because they had acted in violation of the national legislation, violations which could not be ignored by reason of the particular circumstances of those committing them; the employer leader, Mr. Guillermo Quant, had been sentenced on charges proven before the courts and had been pardoned not because of international pressure, but with a view to promoting a collaborative climate for the economic restructuring of the country without the exclusion of any sector; the employer leader, Mr. Allegria, had been released by the court, and this showed the independence of the judiciary; (2) as regarded tripartite consultation. it was incorrect to say that this did not exist; Mr. Dreifus, a leader of COSEP, had participated as the reporter in a seminar on consultation and the Labour Code organised by the SIERA; since August 1988 consultation commissions had been established in which COSEP delegates took part and where prices and wages policies for the agricultural and stock-raising sector were discussed; the COSEP leader, Mr. Ramiro Gurdión, made public statements recognising how positive the Government's measures had been concerning the first tripartite consultations in the agricultural sector which took place in April; (3) the Government had the firm intention to promote changes in the labour laws and had requested the technical assistance of the Office; since the triumph of the revolution, the Government had made 22 changes to the Labour Code, some of which concerned freedom of association such as, for example, section 22 of the Labour Code which now guaranteed the reinstatement of dismissed workers in cases of political discrimination or trade union repression; (4) the Government intended to modify the provisions concerning collective agreements that were not in conformity with Convention No. 98; in 40 years of dictatorship there had only been 122 collective agreements, whereas over the last ten years more than 1,500 such agreements had been signed; there were 1,300 trade unions affiliated to seven trade union central organisations of different political and ideological convictions; the study mission indicated that despite the difficulties that beset the country, there was freedom of association and trade union pluralism; (5) as regards the Act on means of social communications, he stressed that the new law eliminated the provisions criticised by the Committee of Experts and this demonstrated the importance attached to their comments; the Government would send a special report on this question to the Committee of Experts. In Nicaragua, political pluralism was seen in the freedom allowed to political or occupational organisations to express their criticisms, for example, COSEP had its own journal and the newspaper La Prensa was published freely.

The Government representative regretted that the Employer members did not recognise the efforts that the Government was making and appealed to the employers of his country to give their support to the process of economic and social transformation and economic reconstruction in the country. This was an historic opportunity and he expressed the hope that they would seize it. It was normal that there were differences of opinion between the Government and the union or the employers' organisations, but with a genuine will and a constructive spirit an agreement could be arrived at and progress achieved. The employers had the right to challenge the government; there were 21 political parties in opposition having varied ideologies; the employers were thus free to choose whichever one suited their ideas in the elections due in February 1990.

The Employers's members indicated that the statements of the Government representative had not convinced them absolutely, their opinion is founded on a number of official ILO documents and not on suspicions. Since the Workers' position was for progress to be achieved by the present Committee, they decided not to propose that this case be the subject of a special paragraph. They hoped that the present Committee would reflect this divergence in its conclusions, along with the Employers' concern over this case. As freedom of association did still not exist in Nicaragua, neither for employers nor for workers, the Employers' members requested that the present Committee examine this case next year.

The Government representative of Nicaragua requested the Committee to take note of the Government's reservation as regarded the following portion of the conclusions of the Committee:

"The Committee noted, however, that the Committee of Experts in its report observed the persistence of a certain number of divergencies between, first of all, the law, and, secondly, practice with respect to the full application of these two Conventions. The Committee requested the Government to adopt, as soon as possible, all necessary measures to eliminate all the existing restrictions in law and in practice concerning the right of employers' and workers' organisations to exercise freely the rights garanteed by the two Conventions in question."

The Committee took note of the information supplied by the Government representative and the different comments and opinions expressed during the discussion. The Committee recalled the content of the recent reports of the Committee on Freedom of Association and, inter alia, the last interim report of the aforementioned Committee, presented to the Governing Body in May. The Committee noted with interest the suspension of the state of emergency, certain cases of releases of employer leaders and of trade unionists, and assurances by the Government that it would consult the employers' and workers' organisations and the International Labour Office. The Committee noted, however, that the Committee of Experts in its report observed the persistence of a certain number of divergencies between, first of all, the law and, secondly, practice with respect to the full application of these two Conventions. The Committee requested the Government to adopt, as soon as possible, all necessary measures to eliminate all of the existing restrictions in law and in practice concerning the right of employers' and workers' organisations to exercise freely the rights garanteed by the two Conventions in question. The Committee requested the Government to supply the Committee of Experts with precise information, with precise and detailed information on the development of the work on the re-elaboration of the Labour Code and the consultations that it would carry out on this matter. The Committee firmly hoped that next year it would be able to note decisive progress along the lines of the remarks made by the supervisory bodies.

The Government representative of Nicaragua requested the Committee to take note of the Government's reservation as regarded the following portion of the conclusions of the Committee:

"The Committee noted, however, that the Committee of Experts in its report observed the persistence of a certain number of divergencies between, first of all, the law, and, secondly, practice with respect to the full application of these two Conventions. The Committee requested the Government to adopt, as soon as possible, all necessary measures to eliminate all the existing restrictions in law and in practice concerning the right of employers' and workers' organisations to exercise freely the rights garanteed by the two Conventions in question."

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

A Government representative (the Minister of Labour) hoped for a spirit of constructive dialogue so that this case could be presented and listened to in a receptive way without prejudice. His Government had read carefully the Committee of Experts' comments and had noted the concerns expressed at the consequences of the state of emergency which had led to the suspension of certain constitutional guarantees. A political discussion did not fall within the purview of the discussions of this Committee, but certain considerations expressed by the Committee of Experts on the state of emergency in Nicaragua necessitated a description of the reasons which had led to this decision. The armed conflict and aggression from which Nicaragua was suffering had an impact on all spheres of national life including the labour field. The International Court of Justice decision of 27 June 1986 had clearly recognised these circumstances. At no time had Nicaragua violated the international legal commitments it had undertaken; it had simply, given the seriousness of the circumstances, exercised the powers granted under article 27 of the American Convention of Human Rights and article 4 of the International Covenant on Civil and Political Rights which allowed exceptional measures of this type. Despite the context of armed conflict, his country had made huge efforts to consolidate a new legal framework through popular consultation and the promulgation in January 1987 of a new Constitution. Among the various labour rights enshrined in the new Constitution were the following: workers' participation in the management of undertakings (article 81); equal wages for equal work (article 82); the protection of the minimum wage and social benefits; working conditions which guaranteed physical integrity, health, hygiene and the prevention of hazards; stability in employment; social security; an eight-hour working day and protection of the work of minors. Special attention should be paid to articles 49 and 87, which guaranteed full freedom of association. Article 83 expressly granted the right to strike. These provisions were fully compatible with Article 2, 3, 5 and 7 of Convention No. 87. The efforts just described represented substantial Progress in complying with the commitments undertaken by the Government before this Committee in 1985. The process of changing those legal provisions which had failed to comply with ratified international Conventions had begun logically, i.e. with a new Constitution and would continue by amendment of the ordinary legislation. In this task, the Government would request the good offices and technical assistance of the Office in due course.

Decree No. 245 of 9 January 1987 had extended the suspension of certain constitutional rights and guarantees. The legal basis for this decision was to be found in articles 150(9), 185 and 186 of the Constitution, the latter of which specified that many of its articles could not be suspended by a state of emergency. Among those articles safeguarded in the quest to respect the legal commitments flowing from Convention No. 87, was article 87. The fact that freedom of association has not been suspended in law or in practice under the state of emergency was borne out by the continued development of trade unions: during the seven years following the Revolution, 1,200 trade unions had been created as against barely 126 during the 40 years of dictatorship. Under the same constitutional provision, the workers' right to participate in the management of undertakings, the right to employment, social security, occupational safety and health and other rights have been safeguarded during the state of emergency.

With respect to the right to strike, which was currently suspended, the Government considered this to be a fundamental right. Nevertheless, it was understandable that, given the difficult circumstances in the country, his Government had not been in a position to ensure it. It had taken note of the suggestion made by the Committee of Experts and the Committee on Freedom of Association on the Possibility of limiting the state of emergency to certain regions or rural areas, where military activity was under way. As his Government had stated in several forums, it did not only want to limit the state of emergency; it wanted to suspend it entirely. However, the reality of aggression precluded this.

As for the right of Government employees to join trade unions, he pointed out that articles 131 and 49 of the national Constitution provided for their freedom to organise. In addition, article 87 of this Constitution did not stipulate any exclusion with respect to freedom of association. Employees of the central Government and units subordinate to it had formed a trade union called the National Union of Salaried Employees which had been registered with the Department of Trade Union Associations in the Ministry of Labour.

With regard to the legal possibilities for employers to establish organisations, he said that the rules governing trade unions stated (in section 1) that trade unions were associations of employees, workers or agricultural workers, aimed at promoting economic and social advancement, studying common problems and defending and developing their interests. That provision was linked to article 49 of the national Constitution which set out freedom of association for citizens in general. In practice, there was a multiplicity of employers' organisations currently active in the country. This was demonstrated by the presence in this Committee of employers' representatives.

Regarding the legislative changes suggested by the Committee of Experts regarding the exercise of the right to strike (the majority required for calling a strike, the prohibition of strikes in certain rural occupations and compulsory arbitration after 30 days of a strike) and the ban on political activities by workers' organisations, the legal grounds to enable the examination of these had been prepared. Now that the Constitution had been promulgated, an effort to bring the labour legislation into conformity with the Convention could be made. This was the task of the National Assembly and involved consultations with all sectors of society.

The Employers' members stated that they had tried to discuss this case for many years, but with difficulty, because in 1986 the Government had not appeared and the year before that there had been problems. The 1987 observation had referred to many cases at least six-before the Committee on Freedom of Association, including the complaint presented by the International Organisation of Employers (IOE). The same problem was always at issue, namely the lack of a guarantee of freedom of association and civil liberties. They noted that that Committee had stressed the hope that the state of emergency would not be extended and the Employers' members deplored the fact that new Constitution was silent on the freedom of association of employers. They requested the Government representative to present explanations for this because the previous Constitution had guaranteed these freedoms for all citizens. From the information in the reports of the Committee on Freedom of Association and the Committee of Experts, it was clear that the employers had suffered the consequences of this. This was a separate violation of Convention No. 87 apart from the situation of the state of emergency, because the Convention specifically covered the rights of both workers and employers. This was not a theoretical matter. The Government representative had referred to the presence of an employers' delegation here, but the Employers' members noted that this delegation contained only a small number of the most representative employers' organisations of Nicaragua; the Government had preferred other representatives more favourable to its views even though they were less representative of the employers. Regarding the state of emergency, they considered that the Government representative's statement reflected a persecution mania and wondered whether this was because its citizens did not support the Government. The number of organisations set up was irrelevant because they were not independent of the Government and did not meet the requirements of Convention No. 87. The Committee of Experts had stressed that important rights were suspended under the state of emergency, and it also highlighted other discrepancies. The Government's promises made after the 1983 direct contacts mission and the 1985 discussion of the case in this Committee had not been fulfilled. The IOE had had good reason to submit comments to the Committee of Experts on the application of the Convention because two hours after the new Constitution had been promulgated, the state of emergency had been extended. There was no cause for satisfaction with this situation. It had, in fact, worsened in practice.

The Employer member of Nicaragua criticised the Ministry of Labour for having sent reports without consulting the Council for Private Enterprise (COSEP) and other employers' organisations. Under the new Constitution the right to strike was guaranteed, but this had been suspended since the promulgation of the state of emergency. He stressed that this Constitution did not include the right of employers to establish organisations. As for the number of collective agreements in force, he pointed out that Decree No. 532 required the prior authorisation of the Minister of Labour for their validity; this was contrary to the right to bargain collectively and was against the free will of the parties. He noted the Government's statement that attempts outside the military sphere were being made to involve certain groups, including employers, in the political and economic destabilisation of the country. The Council for Private Enterprise (COSEP) wanted it stated clearly here that this was not the case, because its representatives had suffered over the past decades. He stated that employers in Nicaragua were struggling to uphold free enterprise and ILO principles.

The Employer member of Argentina, being an employer from the same region, sympathised with the restriction on the freedom of association of employers in Nicaragua, such as suffered by COSEP. The reports of the Committee of Experts and the Committee on Freedom of Association stressed the seriousness of the situation. Nicaraguan employers no longer had the possibility of expressing their opinions and soon risked not existing at all. Democracy implied the reign of the rule of law, and a denial of basic rights meant that there was a violation of this. His own country had experienced a similar situation, but had now rediscovered democracy. The discussion involved exceptional measures aimed at restricting freedom, so he urged the Government representative to relay the message for a change of direction and the adoption of necessary measures to end this discriminatory action.

The Workers' members expressed pleasure at the resumption of discussion with Nicaragua. It was better to have a dialogue, even if this proved difficult at times. The Government had supplied reports which had been examined by the Committee of Experts. Today the Government representative had provided important information, particularly that despite the situation, efforts were being made to improve matters. One should not hide the fact, however, that this was a serious case. Constructive measures had been used in the past, such as direct contacts, and these might be used again in the future. They were aware of the lack of stability which made it difficult to apply labour standards, including freedom of association and collective bargaining. Some major concerns had been highlighted by the cases presented to the Committee on Freedom of Association by both employers' and workers' organisations. Certain trade unions linked to the WCL or ICFTU were today severely handicapped in their activities through imprisonment or threatened disappearances. Nobody could say that trade union leaders were in the hands of foreign powers or were not patriotic. The state of emergency could be looked at in other bodies, such as the United Nations, but when it led to the suspension of other freedoms, this had to be discussed by this Committee. The Government representative had mentioned a new fact which should be examined by the Committee of Experts, namely a Decree dated 23 February 1987 restoring the right to organise. They wondered whether the restrictions under the state of emergency were necessary throughout the country and they thought that this needed to be examined. They noted that, after all, a state of emergency, while a valid argument for partial restrictions, could also be used to prohibit everything. The Government representative had recognised that there were divergencies or shortcomings in the legislation, and the Workers' members were particularly concerned at the questions of trade union pluralism. Was the National Union of Salaried Employees for public servants free, autonomous and independent? In addition, the Government had indicated in its report that the formation of rival unions in an undertaking would advantage the employer and weaken the organisational structures and the unity of the working class; the Workers' members considered that this was not a question to be decided by the Government but by the workers themselves. They stressed that in this case one had to be aware of the delicate problems, the need to continue the dialogue and to see whether-through real tripartism at the national level-the Convention could be better applied.

The Worker member of the United Kingdom noted that the presence today of the Minister of Labour demonstrated Nicaragua's good will. The discussion of this case in the past had been difficult, partly as a result of confusion and partly as a result of misunderstood motives. His own Trades Union Congress had been in touch with Nicaraguan workers and hoped to visit the country. Everybody acknowledged that, in a state of war or near war, a state of emergency was inevitable; however, under an emergency it was the workers who suffered the most. The February 1987 Decree restoring the right to organise for trade unions appeared to be a welcome development, but comment was difficult until the Committee of Experts had examined it. He wondered whether this Decree abolished all the restrictions placed on trade unions by Decree No. 245 of 9 January 1987. He was particularly concerned about the right to organise in the public sector and asked if this right was currently guaranteed. He thought that governments encountering difficulties should plan ahead to prepare labour legislation in conformity with ILO Conventions so that such laws could be introduced when the state of emergency ceased. He wondered whether the Government representative could provide assurances on this point, to confirm that consideration would be given to the comments of the Committee of Experts, the discussions in this Committee and the results of the direct contact mission. Regarding the harassment of trade union leaders, he stated that the imprisonment of members of occupational associations anywhere in the world was an affront to all workers. History had shown that, in situations of national emergency, a wise government granted a maximum of freedom to its trade unions so as to obtain not only their support, but also the sympathy of trade unions throughout the world. Likewise, a restriction of trade union rights in such situations received condemnation from trade unions throughout the world.

The Worker member of Belgium, like all trade unionists, was deeply attached to the principles laid down in Convention No. 87. Moreover, trade union pluralism, freedom of expression and the right to hold meeting were basic rights which had to be respected everywhere, even in sometimes difficult circumstances. For these rights and freedoms to be fully applied, there should not be a continual questioning of a people's right to self determination and to construct their own future. He suggested inviting the Government to examine with the Office ways of mitigating the restrictions extended under the state of emergency, as had been suggested by the Committee on Freedom of Association. This could be done by limiting it to certain areas or by safeguarding a certain number of basic rights. But one also had to reaffirm the right of each nation to self-determination and to fix its own future.

The Employer member of Cuba expressed his support for the information supplied by the Government representative. He recalled that Nicaragua had suffered under the dictatorship for 40 years and considered that those who called today for freedom of association were in the past supporting Somoza and were now aligned with the imperialist invaders. It was a matter of general knowledge that imperialists were fueling counter-revolution in Nicaragua.

Another Employer member of Nicaragua stated that it was the employers who were showing a lack of tolerance by refusing the participation of Nicaraguan employer members in various Committees of this Conference, and by suggesting that the Nicaraguan Employers' delegation to this Conference was not representative and was associated with the Government. He stressed that the delegation was made up from various sectors and that all employers had the opportunity to participate in these discussions in full freedom. There was pluralism in the Employers' delegation of Nicaragua. His organisation had been critical of the Government when it felt that the Government was not acting in accordance with its interests, but that criticism had to be constructive, especially in the very serious circumstances facing the country. He stated that everyone aspired to freedom and peaceful coexistence but his organisation had lost 1,300 members who had been assassinated. Who then was violating freedom of association? He was aware that perfection was difficult to attain, but pointed out that article 49 of the national Constitution clearly guaranteed freedom of association. All Nicaraguans should work towards removing the causes of the present difficulties and preparing the legal framework for new laws to be adopted.

The Worker member of the USSR stated that this case required the Committee's sympathy and understanding and agreed with the Workers' members that tranquil dialogue was needed. Unfortunately, he could not agree with the rest of their statement. The Government representative had been very convincing and presented good arguments. Under these conditions, how could one use use legal arguments to say that Nicaragua had violated trade union rights? Some measures were necessary because of the aggression in the country coming from outside. How could one discuss limiting the state of emergency if it was confined to specific areas? The country was far too small for this. He was ready to admit that plurality of unions might favour employers since, as everyone knows, certain employers had been involved in plots against the Republic, and had used arms for this purpose.

It was true that the state of emergency hampered economic and other development, but the Government was doing its utmost to maintain freedom of association, He noted that a co-ordination council had been created some time ago by the whole of the trade union movement which had attempted to make economic developments, but the question was now rather one of saving the country. He expressed his understanding for the Government representative who had said that these were only temporary measures; the country needed time and assistance from many sectors, such as the international community, the international trade union movement and the ILO, so as to restore and guarantee the independent development of Nicaragua. The task of this Committee - indeed of the ILO as a whole - was to express understanding for the situation and indignation at the acts of aggression in Nicaragua.

The Worker member of Nicaragua stated that Nicaraguan workers were fighting to defend their lives and essential freedoms. The main obstacle to trade union action in rural areas was the aggression of Contra mercenaries, who had killed 127 trade unionists. He recalled that under the previous dictatorship, as shown by the complaint from the WCL to the ILO in 1973, employers had been trying to suppress unions. It was therefore surprising that those same employers were now defending the workers. Some opinions expressed in the present Committee might give the impression that the situation was disastrous; but according to the report of a Swiss trade union, 6.5 per cent of workers had been unionised in 1979, whilst now 75 per cent of workers were organised in seven trade union centrals. The speaker was in favour of the defence of universal rights such as freedom of association, and over 500 union meetings had taken place in his country to demand that the right to strike, freedom of association, agricultural reform, and safety and health at work be recognised in the Constitution. The workers were the first to regret the state of emergency but their main concern was to achieve peace. This year, the first of May was celebrated by all the union centrals without enmity and without killings and arrests of trade unionists like in other countries. There should be dialogue with all parties concerned in Nicaragua to promote reconciliation.

The Worker member of Uruguay expressed his concern at the situation in Nicaragua. He referred to the report of the Committee of Experts which had suggested limiting the geographical application of the state of emergency, and he considered that the situation should be examined as a whole in relation to the aggression suffered by Nicaragua, which should be condemned as the International Court of Justice had done in 1986. He recalled the assistance which his Government and his trade union organisation had given to the efforts of the Contadora Group. He made an appeal for all governments, workers and employers to follow the same policy in order to ensure that peace is achieved.

The Worker member of the Byelorussian SSR understood the Government's position and the effect of the aggression on the situation in Nicaragua as a whole. Even in these conditions the Government had promoted much faster trade union growth than in the 40 years of dictatorship. Clearly, in wartime conditions it was hard to guarantee rights, and yet even so the Government was doing its best: freedom of association could only be guaranteed when national independence was guaranteed. He was surprised at some of the positions adopted by the Employer members, and proposed that the Committee should recognise that the difficulties of applying Convention No. 87 in Nicaragua were linked to the aggression it was suffering.

The Government representative of Nicaragua recalled that the reasons for his absence from the Committee in 1986 had been explained in detail. In reply to the Workers' members, as regards the practical implications of the state of emergency for the limitation of union activities, he pointed out that 55 of the articles of the Constitution were not in the least affected: under its article 186 the President of the Republic could not suspend or abolish them. Article 87 on the exercice of freedom of association was one of the protected provisions. The union movement had developed since the Sandinista revolution: in the previous 40 years there had been 126 unions, but in the past seven years 1,384 unions had been created, which meant an increase in the numbers of unionised workers. The unions were of various kinds: there were seven central organisations which participate in all economic and social activities and could criticise the Government. Civil servants' right to organise is protected by articles 49 and 131 of the national Constitution: they had already formed an organisation, the National Union of Salaried Employees, and it is not through any wish of the Government that it is a sole trade union. In the Government's view, it is for the workers to decide whether to form one central union or several. In reply to a Workers' member's question, the Government intended to revise legislation where necessary and draft new legislation with all those interested sectors with a view to implementing this legislation as soon as a more normal situation was established. In reply to some Employers' members, the fears expressed as to restrictions on employers' right to organise, alleged to exist under article 49 of the Constitution, were unfounded: the list in that article was not limitative but illustrative. Section 1 of the Regulations on trade union associations was in force and applied and recognised the right of both employers and employees to form organisations. In practice the Government had given guarantees to employers to develop their activities. The private sector remained predominant and, according to the National Institute of Statistics, accounted for 55 per cent of the gross national produce. There were a variety of independent employers' and workers' organisations with the right of assembly and the right of expression-as was demonstrated for example by the opinions expressed by Employer members of Nicaragua in the present Committee.

The Government representative stated that next time this case should be examined in conformity with the normal procedures of the ILO and not as a continuation of the present discussion. He also indicated that this situation should be evaluated in the light of the very serious circumstances his country was facing-circumstances described above which had led to the state of emergency.

In view of the serious concern expressed in the Committee, the Employers' members proposed that the Committee's conclusions be mentioned in a special paragraph in the Committee's report.

The Workers' members expressed their understanding for the Employers' members' proposal, but they preferred simply to make conclusions and re-examine the situation next year.

The Employers' members agreed to this suggestion while reserving the right to request a special paragraph at the next session, if the situation had not improved.

The Committee noted the information supplied by the Government representative and the various points of view and comments expressed during the discussion of this case. It welcomed the renewal of the dialogue with the Government concerning the questions raised by the Committee of Experts. The Committee noted, however, with great concern, that the Committee of Experts, in its report, had observed that a number of serious divergencies still remain between the law and practice and the full application of the Convention, particularly as a result of the reestablishment of a state of emergency in the country. The Committee urged the Government to give serious consideration to the comments of the Committee of Experts and, notwithstanding the state of emergency, to take all necessary steps to remove all practical and legal restrictions on the right to workers' and employers' organisations to exercise freely the rights guaranteed by the Convention. The Committee requested the Government to supply full information to the Committee of Experts on the measures taken to give effect to the Convention.

In view of the serious concern expressed in the Committee, the Employers' members proposed that the Committee's conclusions be mentioned in a special paragraph in the Committee's report.

The Workers' members expressed their understanding for the Employers' members' proposal, but they preferred simply to make conclusions and re-examine the situation next year.

The Employers' members agreed to this suggestion while reserving the right to request a special paragraph at the next session, if the situation had not improved.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee notes the observations of the International Organisation of Employers (IOE), received on 7 March 2023, in which it expresses deep concern at the ministerial decisions adopted on 3 March 2023 through which the Government arbitrarily and unlawfully annulled the legal personality of the Higher Council for Private Enterprise of Nicaragua (COSEP), the most representative employers’ organization in Nicaragua established three decades ago and a member of the IOE, as well as its 18 affiliated associations. The Committee notes the Government’s indication in its reply, received on 14 March 2023, that: (i) neither COSEP nor the 18 associations are registered in the Directorate of Trade Union Associations of the Ministry of Labour, as COSEP is a non-profit-making organization to which the Ministry of Labour does not grant legal status; and (ii) the IOE’s arguments bear no legal relation to the functions of the ILO. The Committee observes that these issues were examined during the discussion held in the Committee on the Application of Standards of the Conference (hereinafter the Conference Committee) in June 2023 on the application of the Convention by Nicaragua.

The Committee also notes the observations of the IOE received on 1 September 2023, in which it reiterates the comments made to the Conference Committee and indicates that several Employer delegates to the International Labour Conference in 2023 submitted a complaint under article 26 of the ILO Constitution alleging non-compliance by Nicaragua with this Convention, as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The Committee notes that the complaint was declared receivable by the Governing Body at its 349th Session (October 2023) and that its content will be examined by the Governing Body at its session in March 2024.

Follow-up to the conclusions of the Committee on the Application of Standards (International labour Conference, 111th Session, June 202 3 )

The Committee notes the discussion at the Conference Committee at the 111th Session of the Conference (2023) and observes that, after noting with deep concern the persistent climate of intimidation and harassment of independent workers’ and employers’ organizations, and the allegations of the arrest and detention of employer leaders and the further deterioration of the situation, as well as the absence of any progress and cooperation on the part of the Government since last year, the Conference Committee urged the Government to:

• ensure that workers and employers can establish their own organizations and operate without interference, including the COSEP;
• 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, including COSEP, and adopt measures to ensure that such acts are not repeated including the return of the Nicaraguan nationality of those who have been deprived of it for this reason;
• immediately release any employer or trade union member who may be imprisoned in connection with the exercise of the legitimate activities of their organizations and provide information on all the measures taken in that regard;
• 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, as recommended by the Committee in 2022;
• repeal Act No. 1040 on the regulation of foreign agents, the Special Act on Cybercrimes and Act 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 also urged the Government to avail itself of ILO technical assistance to ensure full compliance with its obligations under the Convention in law and practice.

The Committee notes that the Government refers in its report to the recommendations made by the Conference Committee and indicates that it has consulted the most representative social partners in the country in this regard. The Government claims that full freedom of association exists in the country without any type of discrimination, that there are no trade union leaders who have been deprived of their freedom for exercising the right to organize or engaging in trade union activities, that there are no restrictions on the right to organize and that there is no trade union persecution or repression. The Government adds that it is continuing to take initiatives in support of the right to organize and emphasizes that, although there is full freedom to organize in the country and there is no persecution of different ideas or views, there are legal provisions in the country that have to be complied with. The Government reiterates that since 2007 it has been working to ensure the restoration and protection of the labour rights of workers through tripartite dialogue and consensus as the principal means of achieving labour stability and peace.

While taking due note of the above indications, the Committee observes with deep concern that the Government does not indicate in its report that it has taken any action to give effect to the recommendations made by the Conference Committee in 2022 and 2023. The Committee also deeplyregrets to note that, despite the Conference Committee urging the Government on both occasions to promote social dialogue without delay through the establishment of a tripartite dialogue round table under the auspices of the ILO and to avail itself of ILO technical assistance to ensure full compliance with its obligations under the Convention, the Government has not commented on this subject.

The Committee notes that various United Nations bodies, including the Human Rights Council, the Group of Human Rights Experts on Nicaragua and the Inter-American Commission on Human Rights have indicated in various reports and resolutions issued in 2023 that human rights violations and abuses in the country are continuing and are worsening, and have expressed profound concern at the deterioration of restrictions on civic and democratic activities. The Committee also recalls that in its previous comments it noted with deep concern that, as denounced by the IOE, the President, Vice-President and former President of COSEP had been arbitrarily detained and that both the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights had urged the Government to proceed to their immediate release. The Committee observes that, according to the indications provided during the discussion in the Conference Committee, those employer leaders were released from prison in February 2023, expelled from the country and stripped of their nationality. The Committee deplores all these events and observes that the Conference Committee urged the Government 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, including COSEP, and to adopt measures to ensure that such acts are not repeated, including the return of Nicaraguan nationality to those who have been deprived of it for this reason.

The Committee expresses deep concern at the fact that, despite its reiterated comments and the recommendations made by the Conference Committee over the past two years, not only has it not been possible to observe any progress in this regard, but it appears from the Government’s report that there is no recognition of the need to take action to give effect to these recommendations. Under these conditions, the Committee is once again bound to urge the Government in the strongest terms to adopt as soon as possible, in consultation with the social partners, each and every measure that it has been urged to take by the Conference Committee. It also requests the Government to provide information on all the measures adopted to ensure that effect is given to each of the recommendations made by the Conference Committee and on any progress achieved in the implementation of these measures. The Committee also urges the Government, with a view to achieving tangible progress in this regard, to establish without delay the tripartite dialogue round table recommended by the Conference Committee and to have recourse to ILO technical assistance to ensure full compliance with its obligations under the Convention.

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 measure to amend sections 389 and 390 of the Labour Code, which provide that collective disputes shall be referred to compulsory arbitration once 30 days have elapsed since the calling of the strike. The Committee notes in this respect that the Government reiterates that, as a sovereign nation, it does not see the need to amend the wording of sections 389 and 390 of the Labour Code, as those provisions do not restrict trade union activities as, to reach such an extreme situation, the parties will have had to hold 23 negotiating sessions. The Committee is once again bound to remind the Government 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 organize their activities and to formulate their programmes in full freedom. The Committee therefore once again 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 in which strikes may be limited or even prohibited, namely in cases of disputes in the civil service involving officials exercising authority in the name 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 report any developments in this respect and firmly hopes that progress will be achieved in compliance with the Convention.

Article 11. Protection of the right to organize. In its previous comment, the Committee noted the statistical information on the establishment of new trade unions, as well as the updating of existing unions, and recalled that the rights conferred upon the employers’ and workers’ organizations protected by the Convention are totally void of meaning when there is no respect for fundamental freedoms, the right to protection against arbitrary detention and imprisonment and the right to a fair trial by an independent and impartial tribunal. Further recalling that Article 11 of the Convention establishes the requirement to take all necessary and appropriate measures to ensure that workers and employers can freely exercise the right to organize, the Committee requested the Government to report on the initiatives taken to guarantee the exercise of this right by workers and employers, and to provide information on their results. The Committee notes the Government’s indication that it is continuing to promote initiatives in support of the right to organize, that policies have been adopted to promote and encourage trade union organization and that, between 2018 and the first quarter of 2023, 156 new trade unions were established with a membership of 5,586 workers and that the existing 4,992 unions that have 352,454 members were updated. While noting the information provided by the Government, the Committee recalls once again that the rights of employers’ and workers’ organizations protected by the Convention are totally void of meaning when there is no respect for fundamental freedoms, the right to protection against arbitrary detention and imprisonment and the right to a fair trial by an independent and impartial tribunal. The Committee therefore once again requests the Government, in light of the above and taking into account the recommendations made by the Conference Committee, to provide detailed information on the initiatives adopted to guarantee the free exercise of the right to organize by both workers and employers.

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

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.]

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the International Organization of Employers (IOE), received on 1 September and 25 October 2021, denouncing acts of persecution, intimidation and repression against leaders of the Superior Council for Private Enterprise (COSEP) and against the business sector affiliated with COSEP, as well as the arbitrary detention of employer leaders without warrant and legal due process. The IOE specifically denounces the arbitrary detention on 8 June 2021 of the former president of COSEP, José Adán Aguerri Chamorro, accused of the crime of conspiracy for undermining national integrity. The IOE also denounces the detention on 21 October 2021, without warrant, of Michael Healy, President of COSEP, as well as its Vice-President, Álvaro Vargas Duarte.

The Committee takes note of the Government’s general reply, which indicates that the detention of Mrs. Aguerri Chamorro, Healy and Vargas Duarte is not related to their activities as employers, but that they are being investigated and prosecuted for various criminal acts. The Government also indicates that their detention was carried out in observance of all rights and guarantees, respecting physical and legal security and integrity. The Committee regrets to note that in its reply the Government merely states that the employer leaders were detained for common law crimes, without providing any information or documentation regarding the charges brought against them, the legal or judicial proceedings instituted and the outcome of such proceedings. The Committee observes that the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights have condemned the detention of the employer leaders and have urged the Government to proceed with their immediate release. The Committee recalls that the rights conferred upon the workers’ and employers’ organizations protected by the Convention are void of meaning if there is no respect for fundamental freedoms, such as the safety and physical integrity of persons, the right to protection against arbitrary arrest and detention, and the right to a fair trial by independent and impartial tribunal. It also recalls that the arrest of employer officials for reasons linked to actions relating to legitimate demands is a serious restriction of their rights and a violation of freedom of association.

Expressing its deep concern at the seriousness of these allegations, the Committee requests the Government to provide precise information on the detentions and, in particular, on the judicial proceedings instituted and their outcome. In the absence of any specific indication of the charges giving rise to the detention of the employer leaders, the Committee urges the Government to take the necessary measures to ensure the safety of Mr Aguerri Chamorro, Healy and Vargas Duarte and ensure their immediate release if their detention is related in any way to the exercise of their functions as employer leaders. It also requests the Government to provide its comments relating to all other issues raised by the IOE, including those regarding the Act regulating foreign agents No. 1040, adopted on 15 October 2020, and the allegation that several sections therein place unacceptable restrictions on freedom of association.

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 several years 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. In this regard, the Committee notes the Government’s indication that: (i) since 2007 to date, the provisions of these articles have not been applied and there has been no need to establish an Arbitration Tribunal; and (ii) the Government has prioritized dialogue to resolve labour disputes in both the public and private sectors by setting up roundtables for dialogue in which the Ministry of Labour participated as facilitator. The Government adds that thus far, the results have been successful and it is therefore not currently necessary to amend sections 389 and 390 of the Labour Code. While taking due note of the Government’s indications regarding the emphasis placed on dialogue as a solution to labour disputes, the Committee can only insist once again on the need to amend the abovementioned provisions of the Labour Code, as 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. Regretting the lack of progress in this respect, the Committee 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.

Article 11. Protection of the right to organize. In its previous comment, the Committee noted the Government’s various initiatives aimed at promoting the right to organize and requested it to provide information concerning their implementation. The Committee notes the information provided by the Government in this respect and notes that the Government’s initiatives have been focused, inter alia, on building trust among the members of trade union organizations in terms of guaranteeing their right to freedom of association, removing red tape in the registration procedures of trade union organizations, promoting the organization of own-account workers, and providing ongoing training for trade union leaders. The Committee notes that, according to the Government, as a result of the abovementioned policies to promote and encourage unionization between 2018 and 2021, 111 new trade union organizations were formed, affiliating 3,902 workers, and 2,884 trade union organizations were updated that grouped together 222,370 workers. The Committee takes due note of this information and requests the Government to continue providing information regarding the initiatives aimed at promoting the right to organize and the results of said initiatives.

[The Government is asked to reply in full to the present comments in 2022.]

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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 several years 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. In this regard, the Committee notes the Government’s indication that: (i) negotiation boards are set up as a matter of urgency whenever socio-economic demands arise in a workplace; and (ii) there have been no changes in national law and practice to enable amendments to sections 389 and 390 of the Labour Code. The Committee is bound to note with regret once again the lack of progress regarding the amendment of the abovementioned provisions of the Labour Code. The Committee recalls that the imposition of compulsory arbitration to end a strike in cases other than those where strike action may be limited or even prohibited is contrary to the right of workers’ organizations to freely organize their activities and formulate their programmes. The Committee therefore once again requests the Government to take the necessary steps to amend sections 389 and 390 of the Labour Code so as to ensure that compulsory arbitration can only occur in cases where strike action may be limited or even prohibited, namely in disputes within the public service concerning public servants exercising authority in the name of the State, in essential services in the strict sense of the term, or in situations of acute national crisis.

Article 11. Protection of the right to organize. The Committee welcomes the information provided by the Government on various initiatives aimed at promoting the right to organize and which include, inter alia, the distribution of handbooks for establishing and updating trade unions, the protection of the right to organize of own-account workers, and the promotion of gender equality policies within the trade union movement. The Committee also notes the Government’s indication that, as a result of the policies to promote and foster unionization, a total of 62 new trade union organizations with 2,469 members were established in 2016, and 1,031 trade unions with 71,847 workers were updated. The Committee duly notes this information and requests the Government to provide information concerning the implementation of the abovementioned policies.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the observations made by the International Organisation of Employers (IOE) in a communication received on 1 September 2014 and the Government’s reply thereon. The Committee also notes the Government’s reply to the observations of the International Trade Union Confederation (ITUC) and to the 2005 and 2006 observations of the International Confederation of Free Trade Unions (ICFTU) (now the ITUC) concerning which the Committee had requested a reply in a direct request in 2010.

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 several years it has been referring to the need to take measures 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. In this regard, the Committee notes the Government’s indication in its report provided in May 2014 that there have been no changes in national law and practice in relation to sections 389 and 390 of the Labour Code. The Committee recalls once again that if a dispute is referred to compulsory arbitration when 30 days have elapsed since the calling of the strike, the decision should only be binding on the parties where they have all accepted it, or in the case of an essential service in the strict sense of the term, or where the strike is being held in a context of acute national crisis. The Committee therefore once again requests the Government to take the necessary measures to amend sections 389 and 390 of the Labour Code as indicated above, and to report any developments in this regard.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

In its previous comments the Committee noted the comments of 2005 and 2006 by the International Confederation of Free Trade Unions (ICFTU), now the International Trade Union Confederation (ITUC), on the application of the Convention which make particular reference to criminal proceedings against seven trade union officers, obstacles to the registration of a trade union executive committee and the declaration by the administrative authority that a work stoppage in the education sector was illegal.

The Committee notes that in its report the Government requests further details on: (i) the names of the seven persons, purportedly union officers, undergoing trial and of the organization to which they belong; (ii) the name of the trade union organization the executive committee of which has encountered obstacles to registration; and (iii) the declaration which, according to the ITUC, determined that a strike in the education sector was illegal. The Committee observes that according to the ITUC: (i) the trade union officials undergoing trial are seven founder members of the STUFEKY union of the King Yong maquila and the criminal proceedings are said to have been initiated in the context of a dispute with the company in April 2004; (ii) the executive board that encountered obstacles to registration was that of the “Ervin Abarca Jiménez” Union of Higher Education Workers of the National University of Engineering (SIPRES–UNI); and (iii) the Ministry of Labour and the Ministry of Education termed illegal a work stoppage called by the General Confederation of Education Workers of Nicaragua (CGTEN–ANDEN) in March 2004. The Committee requests the Government to send its observations thereon.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s reply to the comments of 26 August 2009 by the International Trade Union Confederation (ITUC) concerning the application of the Convention. The Committee also notes the ITUC’s new comments, dated 24 August 2010, on matters already raised by the Committee, and on acts of violence against trade unionists in the export processing zones – the maquila sector. The Committee requests the Government to provide its observations thereon.

Article 3 of the Convention. Right of workers’ organizations to freely organize their activities and formulate their programmes. The Committee has been referring for several years to the need for measures to amend
sections 389–390 of the Labour Code which provide for compulsory arbitration of a dispute where 30 days have elapsed since the calling of the strike. The Committee notes that in response the Government states that: (i) this provision on no account alters the rights of trade union organizations to carry out their activities peacefully and freely; (ii) provision is made for compulsory arbitration because of the social and economic conditions in Nicaragua; and (iii) the economic structure of enterprises established in the country cannot sustain a socio-economic crisis of more than 30 days. The Committee recalls that arbitration imposed by the authorities on their own initiative is difficult to reconcile with the principle of the voluntary nature of negotiation (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 258), and in so far as compulsory arbitration obstructs the exercise of the right to strike, it violates the right of trade unions to organize their activities in full freedom, and could only be justified in the context of the public services, or essential services in the strict sense of the term (services the interruption of which could endanger the life, personal safety or health of the whole or part of the population) or in the event of an acute national crisis. In these circumstances, the Committee once again requests the Government to take the necessary steps to amend sections 389–390 of the Labour Code to take account of the abovementioned principles. It also requests the Government, in its next report, to provide information on any measures taken to this end.

The Committee is raising other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s reply to the comments from the International Trade Union Confederation (ITUC) dated 29 August 2008 concerning the application of the Convention. The Committee also notes the new comments from the ITUC dated 26 August 2009, claiming that enterprises recruit workers for short periods or by the day, which prevents them from joining trade unions, and there are problems concerning the exercise of trade union rights in the maquila (export processing) industry. The Committee requests the Government to send its observations in this respect. Furthermore, in view of the Government’s indication that it is unaware of the comments made by the International Confederation of Free Trade Unions (ICFTU) – presently known as the ITUC – in 2005 and 2006 concerning the criminal proceedings against seven trade union officials, obstacles to the registration of a trade union executive committee and the declaration by the administrative authority that a work stoppage in the education sector was illegal, the Committee notes that the Office has sent these comments once more to the Government. The Committee requests the Government to carry out an investigation and provide its response in this respect.

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes in full freedom. The Committee recalls that it has been referring for a number of years to the need for measures to be taken to amend sections 389 and 390 of the Labour Code, which provide for compulsory arbitration of a dispute where 30 days have elapsed since the calling of a strike. The Committee notes the Government’s reply, in which it requests clarification regarding the legal basis of the Committee’s claims that these provisions need to be amended. In this respect, the Committee recalls that the right to strike is one of the essential means at the disposal of workers and their organizations to promote and defend their economic and social interests. This right is based on the recognized right of workers’ and employers’ organizations to organize their activities and formulate their programmes for the purpose of furthering and defending the interests of their members (Articles 3, 8 and 10 of the Convention). The Committee has also pointed out that the right to strike is an intrinsic corollary of the right to association protected by the Convention. Furthermore, the Committee has considered that arbitration imposed by the authorities on their own initiative is difficult to reconcile with the principle of the voluntary nature of negotiation (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 145, 179 and 258). Accordingly, in so far as compulsory arbitration obstructs the exercise of the right to strike, such arbitration violates the right of trade unions to organize their activities in full freedom and could only be justified in the context of the public service, or essential services in the strict sense of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population), or in the case of an acute national crisis. The Committee requests the Government once again to supply information in its next report on the measures taken or contemplated to amend these sections as indicated.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that the Government’s report has not been received.

The Committee also notes the comments made by the International Trade Union Confederation (ITUC) on 29 August 2008 on the application of the Convention. The Committee requests the Government to send its observations on the previous comments made by the International Confederation of Free Trade Unions (ICFTU, now ITUC) in 2005 and 2006, concerning the prosecution of seven trade union leaders, impediments to the registration of the executive board of a trade union and a strike in the education sector that was declared unlawful by the administrative authority.

Article 3 of the Convention. The Committee recalls that in its previous observations it asked the Government to amend sections 389 and 390 of the Labour Code which provide for compulsory arbitration of a dispute where 30 days have elapsed since the calling of a strike. The Committee once again points out that, if a dispute is referred to compulsory arbitration after 30 days, the arbitration award should be binding only if all the parties agree to it, or where the strike has been called in an essential service in the strict sense of the term or during an acute national crisis. The Committee requests the Government to provide information in its next report on the measures taken or envisaged to amend these sections as outlined above.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the Government’s report.

It also notes the comments of 31 August 2005 and 10 August 2006 by the International Confederation of Free Trade Unions (ICFTU) referring largely to matters already raised by the Committee. The ICFTU also reports impediments to the registration of the executive board of a trade union, the prosecution of seven trade union leaders and a strike in the education sector that was declared unlawful. The Committee requests the Government to send its observations on these matters.

In its previous observation, the Committee noted that under section 9 of the new Civil Service and Administrative Careers Act, No. 476, workers in state-owned public enterprises, universities and higher technical education institutions are excluded from the scope of the Act, and asked the Government to provide information on the legislative provisions governing the exercise of the rights set forth in the Convention for these workers. The Committee notes in this connection that, according to the Government, the trade union rights of workers in public enterprises, universities and higher technical education institutions are established in the Labour Code and in collective agreements.

In previous observations, the Committee has asked the Government to amend sections 389 and 390 of the Labour Code which allow compulsory arbitration of the dispute where 30 days have elapsed since the calling of the strike. The Committee notes that, according to the Government, there has been no amendment of these provisions and that since the Labour Code came into force, no arbitration courts have been convened to rule on any collective disputes. The Committee once again points out that if a dispute is referred to compulsory arbitration after 30 days, the arbitration award should be binding only if all the parties agree to it, or where the strike has been called in an essential service in the strict sense of the term or during an acute national crisis. The Committee requests the Government to provide information in its next report on the measures taken or envisaged to amend these provisions as outlined above.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report and the comments made by the Confederation of Labour Unification (CUS) seeking the Committee’s opinion on Decree No. 93-2004 amending sections 21, 32 and 53 of the Occupational Associations Regulations. The Committee recalls that its previous comments related to the following points:

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

(2)  restrictions on the access of foreign nationals to trade union office (section 21 of the Occupational Associations Regulations, 1997);

(3)  restrictions on the functions of federations and confederations (section 53 of the 1997 Regulations);

(4)  the possibility of a dispute being submitted to compulsory arbitration 30 days after a strike has been called (sections 389 and 390 of the Labour Code); and

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

With regard to the issue raised concerning the Civil Service and Administrative Careers Act, the Committee notes with interest the adoption of new Act No. 476 ("Civil Service and Administrative Careers Act") repealing the Act of 1990. The new Act, in conjunction with Executive Decree No. 87-2004 issuing regulations under the Act, establishes the civil service regulations for certain public servants and public employees. The Committee notes in particular subsections 10 and 11 of section 37 of the Act, which establish as rights of public servants and employees "freedom of trade union organization, trade union protection, collective bargaining and other trade union guarantees which are recognized for all workers by the Constitution and the law", as well as "the exercise of the right to strike, in accordance with the principles and procedures set forth in the Labour Code that is in force". Section 69 also establishes for such public servants and employees the right to establish trade unions, in accordance with the provisions of the Labour Code.

The Committee also observes that, under section 9 of the new Act, workers in public State enterprises, universities and higher technical education institutions remain excluded from its scope of application. The Committee requests the Government to provide information in its next report on the legislative provisions governing the exercise of the rights set forth in the Convention for these workers.

With regard to the restrictions on the access of foreign nationals to trade union office, under section 21 of the Occupational Associations Regulations, the Committee notes with satisfaction the adoption of Decree No. 93/2004 amending the above section so as to eliminate the requirement to be a national of Nicaragua for members of the executive body of the trade union.

With regard to the restriction on the exercise of the right to strike by federations and confederations, which was set out in section 53 of the Occupational Associations Regulations, under which "in labour disputes, federations and confederations shall only intervene by providing advice and the moral and economic support required by the workers affected", the Committee notes with satisfaction the adoption of Decree No. 93-2004 amending the above provision and establishing that "in labour disputes of any nature, federations, confederations and central organizations shall have the right to participate in such disputes in accordance with the procedures established for the resolution of labour disputes".

With reference to the maintenance of compulsory arbitration in sections 389 and 390 of the Labour Code in cases in which 30 days have elapsed from the calling of the strike, the Committee notes that the Government reiterates its previous comments and explains that, once the possibility of negotiations has been exhausted, the dispute has lasted for over 60 days, which constitutes a situation that places the country’s economic and social development at risk. The Committee reiterates its previous observation to the effect that, if a dispute is referred to compulsory arbitration after this time period has elapsed, the arbitration award should be binding only if all the parties agree to it or 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 crises. The Committee requests the Government to indicate in its next report the measures adopted or envisaged to amend these sections as outlined above.

With regard to the reasons for which a worker may lose trade union membership, which are left to the discretion of the public authority under the terms of section 32 of the Occupational Associations Regulations of 1997, the Committee notes with satisfaction the adoption of Decree No. 93-2004, referred to above, amending the above provision and providing that "the reasons for which a member of a trade union organization loses such membership shall be established in the statutes of the trade union when it is constituted or not more than 70 days after the signature of the constituent document".

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report. The Committee points out once again that certain provisions of the Labour Code of 1996 (Act No. 185 of 30 October 1996), of the 1997 Regulations on Occupational Associations (Decree No. 55-97), and of the Civil Service and Administrative Careers Act of 1990 (Act No. 70, March 1990) have been the subject of the following comments:

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

(2)  restrictions on the access of foreigners to trade union office (article 21 of the 1997 Regulations on Occupational Associations);

(3)  restrictions on the functions of federations and confederations (article 53 of the 1997 Regulations);

(4)  the possibility of a dispute being submitted to compulsory arbitration 30 days after a strike has been called (sections 389 and 390 of the Labour Code); and

(5)  grounds on which a worker may lose trade union membership, which are left to the discretion of the public authority (article 32 of the 1997 Regulations).

With regard to the Civil Service and Administrative Careers Act of 1990, which, pursuant to the same Act has been suspended until the President of the Republic or the Ministry of Labour issues its implementing regulations, the Committee regrets to note that, although the Government states that there is full freedom of association and, in practice, there is nothing in the legislation to obstruct the exercise by public servants of the right to organize, and despite the years that have elapsed, the Government has not reported the adoption of any implementing regulations or the drafting of any such text. The Committee requests the Government to recognize by law and in practice the right of public servants to establish organizations to further and defend their interests, in accordance with Article 2 of the Convention, and to keep it informed of any legislation adopted to that end.

With regard to the restrictions on the access of foreign nationals to trade union office envisaged in article 21 of the Regulations on Occupational Associations, the Committee notes that, according to the Government, foreigners may avail themselves of the naturalization procedures. The Committee nonetheless points out once again that provisions on nationality which are too strict might run the risk of some workers being deprived of the right to choose their representatives freely, for example, migrant workers working in sectors where they account for a considerable proportion of the membership. According to Article 3 of the Convention, workers’ organizations must have the right to elect their representatives in full freedom. Furthermore national legislation ought to 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).

As to the restrictions on the right to strike of federations and confederations, the Committee observes once again that in accordance with article 53 of the 1997 Regulations on occupational associations federations and confederations, shall only intervene in labour disputes to provide advice and the moral or economic support needed by the workers concerned. The Committee again reminds the Government that, pursuant to 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.

With regard to the maintenance of compulsory arbitration in sections 389 and 390 of the Labour Code where 30 days have elapsed from the calling of the strike, the Committee notes that the Government repeats its previous statement to the effect that if a dispute is referred to compulsory arbitration after this time period has elapsed, the arbitration award should be binding only if all the parties agree to it and 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 pursue its efforts to bring the provisions of sections 389 and 390 of their Labour Code of 1996, and articles 21, 32 and 53 of the 1997 Regulations on Occupational Associations into conformity with the Convention. It requests the Government to provide information in its next report on progress made in this regard.

Observation (CEACR) - adopted 2000, published 89th ILC session (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.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and recalls its previous comments which referred to the following provisions of the Labour Code of 1945 and the Regulation on Trade Union Associations of 1951:

-- guaranteeing the right of association of public servants, self-employed workers in the urban and rural sectors and persons working in family workshops;

-- abolishing the requirement of an absolute majority of the workers of an enterprise or workplace for the establishment of a trade union (section 189 of the Labour Code);

-- amending the provision on the general prohibition of political activities by trade unions (section 204(b) of the Labour Code);

-- amending the requirement that trade union leaders must present to the labour authorities the registers and other documents of a trade union on application by any of the members of that union (section 36(2) amending the Regulation on Trade Union Associations);

-- allowing foreign workers to have access to trade union office (section 35 of the Regulation on Trade Union Associations);

-- lifting the excessive limitations on the right to strike, such as the requirement of the majority of 60 per cent for calling a strike, prohibiting strikes in rural occupations when products may perish if not immediately sold, and the referral of a dispute to compulsory arbitration by the authority, in services which are not essential in the strict sense of the term (sections 225(3), 228(1) and 314 of the Labour Code);

-- lifting the restrictions on federations and confederations exercising the right to strike (section No. 53 of the Regulation on Trade Union Associations).

The Committee notes with satisfaction that the provisions on freedom of association in the new Labour Code (Act No. 185 of 30 October 1996) which repeal and amend the majority of provisions which have been the object of the Committee of Expert's comments for many years.

Section 2 of the new Labour Code includes in its scope, with the sole exception of the armed forces, all persons who are resident in Nicaragua (section 3). Public servants, self-employed workers in the urban and rural sectors and persons working in family workshops are covered by the new Labour Code and, therefore, enjoy the right of association.

Furthermore, the new Labour Code has repealed the following provisions:

-- the requirement of an absolute majority of the workers of an enterprise or a workplace for the establishment of a trade union (section 189 of the former Labour Code);

-- the general prohibition of political activities by trade unions (section 204(b) of the former Labour Code);

-- the requirement that trade union leaders must present to the labour authorities the registers and other documents of the trade union on application of any of its members (section 36 of Act No. 1260 amending the Regulation on Trade Union Associations) which has been repealed by section 406 of the new Labour Code;

-- the restriction on calling a strike in rural occupations when products may perish if not immediately sold (section 228(1) of the former Labour Code).

Similarly, the requirement of a majority of 60 per cent of workers of an enterprise to call a strike (section 225(3) of the former Labour Code) has been reduced and section 244(c) of the new Labour Code requires the calling of a general assembly by the majority of workers, and section 17(2) of the Regulation on Trade Union Associations (Decree No. 55-97) requires in the general assembly a vote of half plus one of the total number of trade union members. The Committee recalls the importance it attaches to the principle that if a vote by workers before a strike can be held is required, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey on freedom of association and collective bargaining, 1994, paragraph 170).

In regard to the Civil Service and Administrative Profession Act (Act No. 70 of 16 March 1990, section 43(8) of which covers the right of association, the right to strike and to bargain collectively of public servants), the Committee notes the Government's statement that the provision has been suspended, but that in the absence of other provisions it is applied. The Committee requests the Government to inform it when it has adopted legislation in this respect.

Concerning the restrictions on foreign workers having access to trade union office (Decree No. 35 of the Regulation on Trade Union Associations of 1951), the Committee notes with interest the statement contained in the Government's report to the effect that they do have access to trade union office, since the principle of equality is applied with respect to the right to organize, as laid down in the Political Constitution. Moreover, the Government indicates that section 35 of the former Regulation on Trade Union Associations has been repealed by the new Regulation on Trade Union Associations (Decree No. 55-97) which no longer contains a reference to the situation of foreign workers.

Notwithstanding the latter, the Committee notes that section 21 of the new Regulation requires that members of the Executive Board of the trade union must be Nicaraguan nationals.

The Committee also notes with interest that the Government indicates in its report that federations and confederations may exercise the right to strike in accordance with the law. Nevertheless, the Committee notes that section 53 of the new Regulation on Trade Union Associations (Decree No. 55-97) provides that "in industrial disputes, federations and confederations shall limit their intervention to providing advice and moral and economic support required by striking workers".

Furthermore, the Committee observes that in accordance with sections 389 and 390 of the new Labour Code, a dispute may be submitted to compulsory arbitration when 30 days have elapsed from the calling of the strike. On this point, the Committee, in particular, considers that such restrictions could be limited to the provision laid down in section 247 of the new Labour Code (the exercise of the right to strike in public services or services that are of public interest may not be extended to situations which endanger the life and personal safety of the whole or part of the population) or in a situation of acute national crisis.

Finally, section 32 of the new Regulation on Trade Union Associations lays down certain grounds on which a worker may lose his or her trade union membership, matters which should be determined by the workers themselves in their statutes and not by the public authority, namely:

1.2. non-attendance, without justifying their absence, from six consecutive sessions of the general assembly;

1.3. non-payment of dues, without explaining the reasons, for a period of three months; and

1.4. non-exercise of the trade union activities required of members over a period of six months, unless they are able to demonstrate that they were prevented from doing so, will result in general and automatic expulsion from the trade union.

The Committee hopes that the Government will continue to make every effort to bring the provisions in sections 389 and 390 of the Labour Code of 1996 and sections 21, 32 and 53 of the Regulation (Decree No. 55-97) into conformity with the requirements of the Convention and requests the Government to inform it in its next reports of any progress made in this respect.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report and recalls that its previous comments referred to:

- guaranteeing the right of association of public servants, self-employed workers in the urban and rural sectors and persons working in family workshops;

- abolishing the requirement of an absolute majority of the workers of an enterprise or work centre for the establishment of a trade union (section 189 of the Labour Code);

- amending the provision on the general prohibition of political activities by trade unions (section 204(b) of the Labour Code);

- amending the requirement that trade union leaders must present to the labour authorities the registers and other documents of a trade union on application by any of the members of that union (section 36 of the Regulations on Trade Union Associations);

- allowing foreign workers to have access to trade union office (section 35 of the Regulations on Trade Union Associations);

- lifting the excessive limitations on the exercise of the right to strike, such as the requirement of a majority of 60 per cent for calling a strike, prohibiting strikes in rural occupations when products may be damaged if not immediately disposed of, and the referral of a dispute to compulsory arbitration by the authority, in services which are not essential in the strict sense of the term (sections 225, 228 and 314 of the Labour Code);

- allowing federations and confederations to exercise the right to strike.

The Committee notes the Government's indications that in practice public servants have the right to join trade unions. Similarly, the Committee notes that section 43(8) of the Civil Service and Administrative Profession Act (Act No. 70 of 16 March 1990) gives public servants the right to organize, strike and bargain collectively. In this respect, the Committee asks the Government to inform it whether Legislative Decree No. 8-90 which suspended application of Act No. 70 is still in force or whether it has been repealed.

The Committee takes due note of the following information supplied by the Government: in conformity with the Ministerial Resolution of 23 May 1990, a trade union organization may be established with a minimum of 25 workers and, in practice, an absolute majority is not required to establish a trade union in an enterprise; political activities of trade unions are not prohibited either by the Constitution or in practice; in practice, trade union leaders are not required to present to the labour authorities the registers and other documents of a trade union; foreign workers have access to trade union office; limitations on the exercise of the right to strike have been abolished in the new Labour Code; and federations and confederations established legally may exercise the right to strike.

The Committee expresses the firm hope that the Government's views expressed above are reflected in legislation and hopes that the Government will take the necessary measures so that the new Labour Code is adopted very shortly, taking into account the comments which the Committee has been making for several years.

The Committee once again asks the Government to send it the full text of the new Labour Code and to inform it in its next report of any progress made with respect to its adoption.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information supplied by the Government in its report, and the adoption of the new Labour Code. The Committee recalls that its previous comments referred to:

-- guaranteeing the right of association of public servants, self-employed workers in the urban and rural sectors and persons working in family workshops;

-- abolishing the requirement of an absolute majority of the workers of an enterprise or work centre for the establishment of a trade union (section 189 of the Labour Code);

-- amending the provision on the general prohibition of political activities by trade unions (section 204(b) of the Labour Code);

-- amending the requirement that trade union leaders must present to the labour authorities the registers and other documents of a trade union on application by any of the members of that union (section 36 of the Regulations on Trade Union Associations);

-- allowing foreign workers to have access to trade union office (section 35 of the Regulations on Trade Union Associations);

-- lifting the excessive limitations on the exercise of the right to strike, such as the requirement of a majority of 60 per cent for calling a strike, prohibiting strikes in rural occupations when products may be damaged if not immediately disposed of, and the referral of a dispute to compulsory arbitration by the authority, in services which are not essential in the strict sense of the term (sections 225, 228 and 314 of the Labour Code);

-- allowing federations and confederations to exercise the right to strike.

In its report the Government sets out a number of provisions of the new Labour Code which was adopted by the National Assembly which, it states, overcome the application difficulties that the Committee has referred to in its comments. So that the Committee can analyse these provisions, it requests the Government to send the full text of the new Labour Code.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the comments made by the Association of Rural Workers (ATC) on the application of the Convention, and the Government's replies in this respect.

The ATC alleges the non-observance of the Convention in the formulation of a new Labour Code, which is intended to bring its provisions into conformity with the Convention, and the failure to give effect to the recommendations of the Commission of Inquiry of 1990 set up to examine the complaint made against Nicaragua in relation to the application of the Convention.

The Government states that the draft Labour Code was in general approved by the National Assembly, but that it still has to be discussed in detail, and that the speed of its approval depends on the legislature and not the executive authority. With a view to expediting the procedure, at the initiative of the Labour and Sectoral Affairs Committee of the National Assembly, a tripartite technical commission was established, composed of representatives of the Government (Ministry of Labour), employers (COSEP and UNAG) and workers (FNT and CPT), with a view to analysing in detail the draft Labour Code and submitting an agreed text to the full National Assembly for adoption. The Government regrets the abstention of the National Workers' Front, to which the ATC belongs, from the last meetings of the above commission.

With regard to the measures suggested by the Commission of Inquiry (para. 544, Nos. 2, 3 and 4), the recommendations made both by the above Commission and by the Committee of Experts for amendments to the labour legislation to bring it into conformity with Convention No. 87 were included in the draft of the new Labour Code, the progress of which is explained above.

The Committee once again hopes that the new Labour Code will be adopted as soon as possible and that it will respond to all the comments that the Committee has been making for a number of years relating to:

- guaranteeing the right of association to public servants, self-employed workers in the urban and rural sectors and persons working in family workshops;

- abolishing the requirement of an absolute majority of the workers of an enterprise or work centre for the establishment of a trade union (section 189 of the Labour Code);

- amending the provision on the general prohibition of political activities by trade unions (section 204(b) of the Labour Code);

- amending the obligation placed on trade union leaders to present to the labour authorities the registers and other documents of a trade union on application by any of the members of that union (section 36 of the Regulations on Trade Union Associations);

- lifting the excessive limitations on the exercise of the right to strike, such as the requirement of a majority of 60 per cent for calling a strike, prohibiting strikes in rural occupations when the produce may be damaged if it is not immediately available, and enabling the authorities to submit a dispute to compulsory arbitration in services which are not essential in the strict sense of the term (sections 225, 228 and 314 of the Labour Code).

The Committee requests the Government to supply information in its next report on any progress achieved in this respect.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes that in its reply to the general observation, the Government indicates that section 35 of the Regulation respecting trade union associations provides that the members of the governing board have to be of Nicaraguan nationality. In this context, the Committee considers that foreign workers should have access to trade union office, at least after a certain period of residence in the host country. The Committee therefore requests the Government to indicate in its next report any measure which it has adopted in this respect.

The Committee also requests the Government to state whether federations and confederations may exercise the right to strike, and if so, on what legal basis.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the Government's report.

The Committee notes with interest the draft text of the new Labour Code and notes that, taking into account the Committee's comments, it provides for a reduction in the minimum number of workers required to establish an enterprise trade union (25 workers at all levels); the elimination of affiliation to, membership of or being active in political parties or associations as a grounds for the dissolution of a trade union; and the elimination of the provision which permitted the authorities to submit a dispute to compulsory arbitration.

Nevertheless, the Committee notes that the above draft text does not change the limitation on the exercise of the right to strike which it criticized previously, particularly with regard to the possibility of restricting strikes in rural occupations when the produce may be damaged if it is not immediately available (section 239(a) of the draft text). Nor does the draft text guarantee through a specific provision, as the Committee has been requesting for many years, the right to associate of public servants, self-employed workers in the urban and rural sectors and persons working in family workshops. Furthermore, the Committee notes that although the number of workers in an enterprise who are needed to call a strike has been modified (60 per cent of the workers in an enterprise under the Labour Code, and a simple majority according to the draft text), this figure should be limited to a simple majority of voting members.

The Committee also reminds the Government that it has been requesting for many years an amendment to the obligation placed on trade union leaders to present to the labour authorities the registers and other documents of a trade union on application by any of the members of that union (section 36 of the Regulations on trade union associations).

In these conditions, the Committee therefore requests the Government to continue taking action to further harmonize its legislation with the Convention and it hopes that the new Labour Code will be adopted as soon as possible and that it will incorporate the comments of the Committee on matters which have not yet been taken into account in the draft text.

The Committee is also addressing a request directly to the Government.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee takes note of the Government's report and observes that it contains information concerning compliance with the recommendations made by the Commission of Inquiry appointed under article 26 of the ILO Constitution to examine the complaint against Nicaragua concerning the application of Conventions Nos. 87, 98 and 144.

With regard to the information given in connection with paragraph 541 of the report of the Commission of Inquiry (amendment and updating of the Police Functions Act, the Police Code and the Code of Criminal Procedure), the Committee notes with interest that the National Assembly has promulgated Act No. 124 of 25 July 1991 on the reform of criminal procedure, which makes local judges competent to try and punish the perpetrators of minor criminal offences and district judges to try the perpetrators of offences that carry more severe penalties than correctional penalties, but provides that they may not pronounce sentence until a jury has delivered its verdict. The Committee takes note of the Government's statement that it does not propose to promulgate legislation on social communications since there is complete and unrestricted freedom to receive and disseminate information without limitation.

The Committee further notes with satisfaction, with regard to the information given by the Government in connection with the recommendation of the Commission of Inquiry concerning expropriations (paragraph 542 of the report of the Commission of Inquiry) that the properties have been returned to the leaders of COSEP.

The Committee takes due note that the Government has prepared a draft Labour Code taking into account the observations of the Committee of Experts, of the Commission of Inquiry and of the ILO advisers. As regards tripartite consultations provided for in Convention No. 144, the Committee notes the Government's statement that it has had extensive recourse to tripartism in different labour activities.

In this connection the Committee reminds the Government of its observations concerning certain provisions of or omissions from the legislation that are not in accordance with the Convention. The Committee had referred in particular to the need to:

- guarantee, by a specific provision, the right of public servants, self-employed workers in the urban and rural sectors and persons working in family workshops to associate for the defence of their occupational interests;

- abolish the requirement of an absolute majority of the workers of an enterprise or work centre for the formation of a trade union (section 189 of the Labour Code);

- amend the provision on the general prohibition of political activities by trade unions (section 204(b) of the Code);

- amend the obligation placed on trade union leaders to present to the labour authorities the registers and other documents of a trade union on application by any of the members of that union (section 36 of the Regulations on Trade Union Associations);

- lift the excesssive limitations on the exercise of the right to strike, requiring a majority of 60 per cent for calling a strike, prohibiting strikes in rural occupations when the produce may be damaged if it is not immediately available, and enabling the authorities to end a strike that has lasted 30 days through compulsory arbitration if no settlement has been reached after the date authorised for the strike (sections 225, 228 and 314 of the Code).

The Committee asks the Government to send it a copy of the draft Code in question. Since the questions raised are of great importance and it has been pressing them for many years, the Committee expresses the firm hope that at its next session it will be able to take note of tangible results with regard to the reconciliation of the legislation with the Convention and that the recommendations made by the Commission of Inquiry in its report (paragraphs 543 and 544) will be embodied in the future Labour Code.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the report presented by the Commission of Inquiry established in accordance with article 26 of the ILO Constitution to examine the complaint against Nicaragua concerning the application of Conventions Nos. 87, 98 and 144. The Committee notes in particular that in paragraph 546 of its recommendations the Commission of Inquiry considers that the Government should indicate, as from 1991, in its reports submitted under article 22 of the Constitution, the measures taken in law and in practice to give effect to its recommendations on the application of these Conventions during the period in question.

Consequently, the Committee asks the Government to provide detailed information on the measures taken to give effect to the recommendations of the Commission of Inquiry.

[The Government is asked to report in detail for the period ending 30 June 1991.]