Interim Report - Report No 351, November 2008

Case No 2613 (Nicaragua) - Complaint date: 23-OCT-07 - Closed

Allegations: The complaint organization alleges numerous dismissals and transfers of trade union officials and members, and the exclusion of trade unions affiliated to the CTN from a collective bargaining process

1. 1051. The complaint is contained in a communication of the Central Workers’ Confederation of Nicaragua (CTN) of 23 October 2007.
2. 1052. The Government sent its observations in a communication of 10 April 2008.
3. 1053. Nicaragua has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1054. In its communication of 23 October 2007, the CTN states that despite all the constitutional and legal provisions and agreements which guarantee trade union rights, senior government officials in public institutions and state enterprises have systematically and flagrantly violated them, denying workers and their organizations the right to trade union freedom, collective bargaining and employment. According to the CTN, there is interference in the functioning of democratic trade unions, illegal mass dismissals without due process, including of trade union officials, and promotion of the formation of workers’ organizations dominated by the authorities in order to place them under their control. In addition, collective agreements are being concluded with regressive clauses, in express violation of constitutional and legal provisions, and collective agreements. Specifically, the CTN alleges the following violations of trade union rights.
   • Nicaraguan Social Security Institute (INSS)
2. 1055. The CTN alleges that by order of the former CEO, a retired army officer, the contracts of employment of 48 members and ten officials of the Workers’ and Employees’ Union of the Nicaraguan Social Security Institute (STEINSS) affiliated to the CTN were terminated, namely: Isabel Vanessa River Ubeda (General Secretary), Sergio Juan Ramón Quiroz (Organization and Propaganda Secretary), Karla Esperanza Molina Saavedra (Minutes Secretary), Moisés Ruiz Romero (Labour Affairs Secretary), Alvin Alaniz González (Occupational Safety and Health Secretary), Karla del Rosario Alvarado Paíz (Auditor), Ivette Pilarte (Spokesperson), Martha Calderón (Sectional), Fruto Plazaola (Sectional) and Luis Pérez Mairena (Sectional).
3. 1056. The CTN reports that on 19 and 27 March and 13 April 2007, all these trade union officials and the majority of the dismissed employees, all union members, filed a formal claim for reinstatement and payment of unpaid wages in Labour Courts Nos One and Two. In reply to the claim, the CEO of the institution applied for an exception of lack of legal capacity, which was accepted by the industrial judicial authorities without any justification, as well, moreover, as failing to decide the matter in accordance with the provisions of article 321 of the Labour Code: “Any exception alleged without any justification in order to delay the proceedings shall be immediately refused and without recourse”. They did not order hearing of evidence of the claims, despite the fact that article 46 of the Labour Code establishes a mandatory period of 30 days for deciding the claim. The trade union officials appealed amparo in chambers one and two of the Managua Court of Appeal, whose judges ordered the INSS CEO to annul the appealed actions, but the president refused to obey the order, thus, as is the practice of the current government authorities, violating the provisions of article 167 of the Constitution “Orders and decisions of the courts and judges are binding on State authorities, organizations and the natural and legal persons concerned”.
   • The Nicaraguan Aqueduct and Sewer Company of Esteli
4. 1057. The CTN alleges that, by order of the CEO, the contracts of employment of Mr Fidel Castillo Lago (Minutes Secretary), official of the “Genaro Lazo” Union and 15 other members were terminated.
   • The Nicaraguan Aqueduct and Sewer Company of Matagalpa
5. 1058. The CTN alleges that, by order of the CEO, the contracts of employment of 25 affiliated workers and five officials of the Enacal-Dar Matagalpa Democratic Trade Union, Juan Alberto García Blandón (General Secretary), Alejandro Martínez Rizo (Minutes Secretary), Buenaventura Polanco Sáenz (Treasurer), Salvador Montoya Herrera (Disputes Secretary) and Nahum Castro Aráuz (Organization Secretary) were terminated.
   • The Nicaraguan Aqueduct and Sewer Company of Granada
6. 1059. The CTN alleges that, by order of the CEO, the contracts of employment of 34 employees, including eight officials of the Eastern Services Territorial Unit Workers’ Union (UTSO) of the Nicaraguan Aqueduct and Sewer Company, José Morales Mena (General Secretary), Gustavo Morales Chamorro (Disputes Secretary), Edgard Estrada Mejía (Organization and Propaganda Secretary), Luis René Castillo Morales (Treasurer), Dario López Cruz (Occupational Safety and Health Secretary), Martín Ernesto Martínez Guerra (Auditor), Ayabeth Martín Barrios Delgado (First Spokesperson) and Félix Mejía Duval (Federation Organization and Propaganda Secretary) were terminated.
7. 1060. The CTN adds that, by order of the CEO, the contracts of employment of 29 employees, including nine officials of the Enacal Granada Workers’ Departmental Democratic Union, Manuel Salvador Juarro (General Secretary), Ricardo Ramos Laguna (Disputes Secretary), María Auxiliadora Castillo Hernández (Minutes Secretary), Alvaro José Toruño Velis (Education, Culture and Sport Secretary), Miguel Martínez López (Occupational Safety and Health Secretary), Andrés Maldonado Cisneros (Auditor), Auxiliadora Arias Madrigal (First Spokesperson), Lesbia del Carmen Ruiz Pérez (Second Spokesperson) and Mario José Gutiérrez Jaime (Federation Treasurer) were terminated. On 6 June 2007, 63 workers of the Enacal Company in Granada filed a formal claim for reinstatement in the same post and with identical conditions of work, payment of unpaid wages as well as social security contributions and benefits established by law and collective agreement before the judge in the Granada District Civil and Industrial Court. This claim was filed in accordance with the requirements laid down in article 307 of the Labour Code. In responding to the claim, the CEO of the company applied for the exception of lack of legal capacity on the grounds that her name is Ruth Herrera Montoya and not Ruth Selma Herrera Montoya. The result of this exception was an action which violates the provisions of articles 266 and 321 of the Labour Code, since in official documents she signed in the way she was addressed by the workers, but it happened that the judicial authority allowed the violation of the aforesaid articles.
   • The Nicaraguan Aqueduct and Sewer Company of Carazo
8. 1061. The CTN alleges that, by order of the CEO, the contracts of employment of 31 employees including five officials of the Enacal Carazo Workers’ Departmental Democratic Union, Carlos Alonso Avellán Matus (General Secretary), Nicolás Antonio Conrado López (Disputes Secretary), Lorgia Marina García Pérez (Treasurer), José Jirón Medrano (Safety and Health Secretary) and Manuel Cruz García (Auditor) were terminated. On 11 June 2007, the 31 workers of Enacal Carazo filed a formal claim of reinstatement in the same post and with identical conditions of work, payment of unpaid wages as well as social security payments and benefits established by law and collective agreement before the judge in the Jinotepe District Civil and Industrial Court. This claim was filed in accordance with the requirements laid down in article 307 of the Labour Code. In responding to the claim, the CEO of the company submitted the exception of lack of legal capacity mentioned in the previous paragraph.
   • The Nicaraguan Aqueduct and Sewer Company of Diriamba
9. 1062. By order of the CEO, the contract of employment of the General Secretary of the Enacal Diriamba Workers’ Union, Mr Léster Francisco Ortiz, was terminated.
   • The Nicaraguan Aqueduct and Sewer Company of Jugalpa
10. 1063. By order of the CEO, the contracts of employment of eight employees including Diriamba Workers’ Union official, Mr Kester Geovani Bermúdez, were terminated.
    • National Technological Institute (INATEC)
11. 1064. By order of the executive director, the transfer of Mr Ricardo Alvarez Berríos (General Secretary) and Ms Gloria Paredes Sánchez (Training Secretary) both of the Workers’ Technical and Professional Staff Union of the INATEC was ordered, as a reprisal for demanding compliance with the collective agreement, thereby violating their right to security of tenure established by law. Under the legislation, the Departmental Labour Inspectorate, Service Sector of the Ministry of Labour, declared the transfers null and void and without any legal effect whatsoever, but the institute authorities refuse to comply with that decision.
    • Directorate-General of Revenues (DGI)
12. 1065. The CTN states that at the end of July 2006, the authorities of the DGI and the trade unions there signed a new collective agreement, in which clause 1 provides as follows:
    • Clause 1.?(Mutual Recognition).?The institution named the “Directorate General of Revenues” recognizes the following trade unions: Democratic Workers’ Union of the Directorate General of Revenues (SEDDGI), the Public Workers’ and Employees’ Union in the Directorate General of Revenues, Leon Department Revenue Office (SITEPDGI-ARL), the Public Employees’ Union in the DGI Granada (SEPGRA-DGI), the Independent Workers’ Union of the Directorate General of Revenues (SITRADGI) and the Workers’ Union in the Rivas Department Revenue Office of the Directorate General of Revenues (SITRARDI-DGI), as representative of the public employees and/or staff affiliated and non-affiliated to the trade unions which seek to represent them in the defence of their rights and socio-economic and labour interests and undertakes to negotiate with these organizations on individual and collective agreements, claims and disputes as the case may be. For their part, the trade unions SEDDGI, SITEPDGI-ARL, SEPGRA-DGI SITRADGI and SITRARDI-DGI shall recognize that the Directorate General of Revenues is responsible for the organization and planning necessary to allow it to exercise fully the management, fulfilment, compliance and monitoring of its functions. The foregoing shall be in conformity with the provisions of the Constitution of Nicaragua, the Civil Service and Administrative Service Act and its regulations, the current Labour Code, the Act on Acquired Rights and Conventions of the International Labour Organization ratified by Nicaragua and the collective agreement. Neither party shall be subject to any limitations other than those laid down in law and those which derive from the present collective agreement.
13. 1066. The CTN alleges that, despite this, the new authorities of the institution signed a collective agreement with trade unions formed in 2007 which are under its control with the acquiescence of the authorities of the Ministry of Labour, in flagrant breach of the abovementioned clause and the relevant provisions of national legislation and ILO Conventions. This act was appealed to the administrative authority, both to the Departmental Labour Inspectorate, Service Sector, and then to the Collective Bargaining and Individual Conciliation Directorate, since the former refused the list of demands submitted on 29 June 2007, pursuant to paragraph (h) of article 373 of the Labour Code (when a trade union proposes a collective dispute of an economic or social character, it must submit to the relevant Departmental Labour Inspectorate a list of demands, an original and three copies, which contains, according to paragraph (h), the application for the list to be considered) and the latter concerning the conclusion of an agreement with regressive clauses without the participation of all the trade unions, which were not notified of the new agreement proposed by the Union of United Workers in Reconciliation (SNTUR-DGI-UNE) and the Tax Office Staff Union (SINTRACAF-UNE). The CTN states that it has the following affiliated unions in the DGI: (a) the Independent Workers’ Union of the Directorate-General of Revenues (SITRADGI); (b) the Public Employees’ Union in the Directorate-General of Revenues of Granada (SEPGRA-DGI); and (c) the Employees’ and Workers’ Union of the Masaya Revenue Office of the Directorate-General of Revenues (SIERMA-DGI).
14. 1067. Furthermore, the CTN alleges that the Director-General of Revenues, in breach of article 87 of the Constitution and articles 231 and 232 of the Labour Code, said that, as far as he was concerned, trade union office was not an obstacle to termination of the contract of employment of trade union officials, and he therefore ordered the dismissal of Ms Maura de Jesús Vivas Ramos, spokesperson of the SEPGRA-DGI, invoking for that purpose article 111 of Act No. 476, the Civil Service and Administrative Staff Act, which does not rank higher than the Constitution and the Labour Code.

B. The Government’s reply

1. 1068. In its communication of 10 April 2008, the Government states that the cases of the trade union officials were being heard, at the option of the parties, some by administrative proceedings in the Ministry of Labour and others in the industrial courts, in accordance with the procedures and processes laid down in Nicaraguan legislation for parties in dispute. Specifically, it states the following.
   • Dismissals of officials of the Workers’ and Employees’ Union of the Nicaraguan Social Security Institute (STEINSS), affiliated to the CTN
2. 1069. With regard to the dismissals of INSS trade union officials, the departmental labour inspectorate, service sector, stated that there was an initial complaint by the workers on 21 January 2007 in relation to which a special inspection was carried out. However, the complainant (the workers’ side) withdrew the complaint. On 28 February 2007, the workers made a written submission in which they complained of the transfers and breach of trade union immunity as a result of which the inspectorate concerned issued three summons to the parties (employer and workers) with the aim of resolving the situation alleged by the workers concerned. The employer did not attend.
3. 1070. A special inspection was carried out which found evidence of the transfer of 32 workers, as a result of which on 28 March 2007, an order was made declaring null and void the transfers of the following trade union officials: Isabel Vanessa Rivera Ubeda, Sergio Quiroz, Karla Molina, Alvin Alanís González. This order was appealed by the employer and the decision at second instance No. 197-07 upheld the order made by the Departmental Labour Inspectorate, Service Sector. On 11 April, a complaint was received from the trade union officials as a result of which a special inspection was ordered, which concluded:
   • The Human Resources Director of the INSS stated that the workers Isabel Vanessa Rivera Ubeda, Alvin Alanís González, Moisés Ruiz Romero, Karla Esperanza Saavedra, Sergio Juan Ramón Quiroz, Ivette Pilarte Centeno, Ercilia Aguilera Centeno, Magda del Carmen Reyes López, Giany Castillo Torres, Karla del Rosario Alvarado Paíz, Fabricio José Sevilla, Allan Antonio González Torres, Frutos José Plazaola Cubillo, Jazmín del Sagrario Carvallo Soto, Margarita del Carmen Sánchez Méndez, Vilma Isabel Munguía Guillen, Rolando Delgado Miranda, Fátima del Rosario Pérez Canales, María de la Concepción Sarria Ruiz, Josman Octavio Solís Núñez and Carlos Alvarez Alemán claimed through their representative reinstatement and payment of unpaid wages in the Managua District Second Industrial Court.
4. 1071. Subsequently, information was requested from the office of the INSS CEO, which provided the following information: “As a result of the administrative and structural reorganization of the institution, duly approved by the relevant authorities, the Medical Supervision area of the General Health Administration was completely closed down, changing the character from a supervisory function exercised by doctors to a function of social care carried out by social workers duly recruited by the institution”. Based on compliance with the procedure set out in the Civil Service and Administrative Staff Act, Act No. 476, and based on article 111 of Act No. 476, which states verbatim: “Institutional restructuring and reorganization. When programmes of institutional restructuring or reorganization give rise to the termination of staff or employees, the effects of the abolition shall be established in the corresponding Human Resources adjustment programmes or plans formulated by the Government and approved by the governing body concerning established rights of staff and employees under the present Act. Public servants affected by these programmes shall be compensated in accordance with the provisions of the present Act and the respective collective agreement.”
5. 1072. The Government indicates that the termination of the contracts of employment of the following medical supervisors, Isabel Vanessa Rivera Ubeda, Alvin Alanís González, Moisés Ruiz Romero, Karla Esperanza Saavedra, Sergio Juan Ramón Quiroz, Ivette Pilarte Centeno, Ercilia Aguilera Centeno, Magda del Carmen Reyes López, Giany Castillo Torres, Karla del Rosario Alvarado Paíz, Fabricio José Sevilla, Allan Antonio González Torres, Frutos José Plazaola Cubillo, Jazmín del Sagrario Carvallo Soto, Margarita del Carmen Sánchez Méndez, Vilma Isabel Munguía Guillen, Rolando Delgado Miranda, Fátima del Rosario Pérez Canales, María de la Concepción Sarria Ruiz, Josman Octavio Solís Núñez and Carlos Alvarez Alemán, took effect on 15 March 2007.
6. 1073. The Government adds that on 19 March 2007, the abovementioned medical supervisors filed a claim for reinstatement and payment of wages due in the Office for the Allocation of Cases of the Judicial Power. The case was allocated to the Managua District Second Industrial Court. At the present time, the case is still active, pending the decision of the judge in the case. On 16 April 2007, some of the claimants, namely Isabel Vanessa Rivera Ubeda, Margarita del Carmen Sánchez Méndez and Ercilia Elizabeth Aguilera Centena, withdrew their legal action. To date, the following workers, all former members of STEINSS have settled their claims: Isabel Vanessa Rivera Ubeda, Sergio Juan Ramón Quiroz, Karla Esperanza Saavedra, Moisés Ruiz Romero, Karla del Rosario Alvarado Paíz, Ivette Pilarte Centeno and Frutos José Plazaola Cubillo.
   • ENACAL-Esteli
7. 1074. With regard to the termination of the contract of employment of Mr Fidel Castillo Lagos, official of the “Genaro Lazo” Union, the Government reports that on 12 June 2007, a claim was filed in the District Civil and Industrial Court, by operation of law against ENACALEstelí. The case is in progress.
   • ENACAL-Matagalpa
8. 1075. Information was requested from the office of the ENACAL CEO, which reported that Juan Alberto García Blandón, Alejandro Martínez Rizo, Buena Ventura Polanco Sáenz, Salvador Montoya Herrera and Nahúm Castro Aráuz had accepted payments in final settlement. ENACAL has not been notified of any claim lodged by the abovementioned persons.
   • ENACAL-Granada and ENACAL-Carazo
9. 1076. Under decision No. 094-07 of the Inspectorate General of Labour of 11 May 2007, it was established that the Inspectorate General of Labour was competent under articles 244 and 249 of the Labour Code to hear and decide the application by the legal attorney of ENACAL, who on 9 May 2007 requested the Inspectorate to pronounce the illegality of the strike conducted by the workers of the Carazo and Granada divisions. The reports of the special inspections carried out by the Inspectorate General of Labour in this matter showed that the workers of the Carazo and Granada divisions had gone on strike without first exhausting the legal procedures, and had defaulted on their labour obligations by arbitrarily suspending their work, in relation to a claim of non-compliance with the collective agreement and negotiation of a new list of demands.
10. 1077. The Government refers to the following decision of the labour inspectorate: “Irrespective of the reasons given by the workers of the ENACAL Carazo and Granada departments for demanding improvements in their social and labour rights, these do not allow or legitimize them in holding a collective stoppage of work, even though article 83 of the Constitution recognizes the labour right to complain against non-compliance with agreements of a social and labour character (article 381 of the Labour Code) and negotiation of lists of demands (article 373 and following of the Labour Code) and there are procedures, including for the exercise of the right to strike, article 244 of the Labour Code provides that clearly defined criteria must be satisfied and, in this case, it is clear that the workers of the departments concerned did not follow the correct procedure. This situation obliges the authority to declare the strike held by the workers of the Carazo and Granada departments illegal under the provisions of article 244 and following of the Labour Code. Thus in the light of these considerations, article 83 of the Constitution of Nicaragua, articles 224, 245, 247, 248 and 249 of the Labour Code, the Inspectorate General decides: (1) that the application by the Legal Attorney of ENACAL that the strike be held to be illegal is justified. In consequence, the Inspectorate General of Labour declares the strike by the workers of the Carazo and Granada departmental divisions of ENACAL to be illegal; and (2) the striking workers must return to work within 48 hours, failing which the employer may deem the contracts of employment of those who continue with the illegal action to be terminated.”
11. 1078. The Government states that the dismissal of the striking workers at ENACAL Granada and Carazo was not because they were trade unionists or exercising a trade union right (which right is protected by labour law), but for breach of labour legislation and the decision given by the Inspectorate General of Labour. The Government adds that on 7 June 2007, certain ENACAL (Granada) workers filed a claim for reinstatement in the District Civil and Industrial Court by operation of law in the department of Granada and that on 11 June 2007, ENACAL (Carazo) workers filed a legal appeal in Jinotepe.
    • ENACAL-Diriamba
12. 1079. With regard to the termination of the contract of employment of Mr Lester Francisco Ortiz, Secretary of the ENACAL-Diriamba Workers’ Union, the official in question withdrew his action on 7 November 2007, whereupon the Jinotepe District Civil and Industrial Court, in an order made on 18 December 2007, decided to accept the withdrawal application submitted by Mr Ortiz and to have the proceedings stayed. Mr Ortiz accepted a payment in final settlement. The foregoing is consistent with the information requested from, and provided by, the office of the ENACAL CEO.
    • ENACAL-Jugalpa
13. 1080. As regards the situation of Mr Kester Giovanni Bermúdez, official of the Chontales Department Independent ENACAL Workers’ Union, on 18 March 2007 he received payment in final settlement of the social benefits to which he was entitled to his entire satisfaction. The foregoing is consistent with the information requested from, and provided by, the office of the ENACAL CEO.
    • Refusal of the application by the Managua Department Inspectorate, Service Sector, submitted by the Independent Workers’ Union of the Directorate
    • General of Revenues (SITRADGI) and dismissal of Ms Maura de Jesús Vivas Ramos, official of the Public Employees’ Union in the
    • Directorate-General of Revenues of Granada (SEPGRA-DGI)
14. 1081. With regard to the refusal by the Managua Department Labour Inspectorate, Service Sector of the list of claims of 29 June 2007, under paragraph 4 of article 373, submitted by the SITRADGI, the Government indicates that the Managua Department Labour Inspectorate, Service Sector refused the application because it had already been negotiated bilaterally with other trade unions and the DGI. On 29 July 2007, the SITRADGI submitted to the Department Labour Inspectorate, Service Sector a request to negotiate a list of claims when it had already signed a new list of claims. The legal basis for refusing the list of claims in question was that a new collective agreement had already been signed.
15. 1082. Furthermore, the Directorate of Collective Bargaining and Conciliation received the collective agreement of the DGI on 2 July 2007 for registration and filing, it having been negotiated directly and in accordance with articles 371 and 372 of the Labour Code by the following trade unions: the SNTUR-DGI-UNE and the SINTRACAF-UNE. The agreement was revised and certain rectifications were formulated. It was resubmitted on 20 July 2007 and was signed by the Director of Collective Bargaining and Conciliation on 3 August 2007 for registration.
16. 1083. On 13 July 2007, the SITRADGI and the SIERMA-DGI submitted a document complaining that the trade unions which negotiated the new collective agreement were not represented in the previous collective agreement and that they did not request to join it and thus the new agreement should not be registered in the Directorate of Collective Bargaining and Conciliation. In this respect, an order was made on 31 July 2007 which refused the application. Subsequently, a written submission was received on 9 August 2007 from the following trade unions: the SITRADGI, the SIERMA-DGI and the SEPGRA-DGI which sent a communication to the ILO, requesting to join the collective agreement and withdraw the lists of demands submitted to the Ministry of Labour. The agreement was signed by all the trade unions mentioned in this report.
17. 1084. With regard to the termination of the contract of employment of the trade union official, Ms Maura de Jesús Vivas Ramos, who is spokesperson of the SEPGRA-DGI, a decision in favour of the worker was given by the Inspectorate General of Labour on 9 January 2008.
    • National Technological Institute (INATEC)
18. 1085. With regard to this case, the Departmental Labour Inspectorate, Service Sector reported that on 30 July 2007, an order was made which in its conclusion states: “the transfers of the workers and trade union officials Gloria del Carmen Paredes and Ricardo Ramón Alvarez Berrios are declared null and void” and this order was upheld on appeal on 18 September 2007. In addition, the executive management of INATEC has stated that Mr Ricardo Ramón Alvarez Berrios and Ms Gloria del Carmen Paredes are working actively in their posts and with full respect for their labour and trade union rights.

C. The Committee’s conclusions

1. 1086. The Committee observes that in this case the complainant organization alleges numerous dismissals of trade union officials and members, and the exclusion of trade unions from a collective bargaining process in various public institutions and state enterprises.
   • Nicaraguan Social Security Institute (INSS)
2. 1087. As regards the allegation concerning the dismissal of ten officials (Isabel Vanessa River Ubeda, Sergio Juan Ramón Quiroz, Karla Esperanza Molina Saavedra, Moisés Ruiz Romero, Alvin Alanis González, Karla del Rosario Alvarado Paíz, Ivette Pilarte, Martha Calderón, Fruto Plazaola and Luis Pérez Mairena) and 48 members of STEINSS, the Committee notes that the Government reports that: (1) in relation to the dismissals of the trade union officials, the Departmental Labour Inspectorate Service Sector stated that there was an initial complaint by the workers on 21 January 2007 in relation to which a special inspection was carried out. However, the complainant (the workers’ side) withdrew the complaint. On 28 February 2007, the workers filed a written submission in which they complained of the transfers and breach of trade union rights as a result of which the Inspectorate concerned issued three summonses to the parties (employer and workers) with the aim of resolving the situation alleged by the workers concerned. The employer did not attend; (2) information was requested from the office of the INSS CEO, which provided the following information: “As a result of the administrative and structural reorganization of the institution, duly approved by the relevant authorities, the medical supervision area of the general health administration was completely closed down, changing the character from a supervisory function exercised by doctors to a function of social care carried out by social workers duly recruited by the institution”; (3) the measure adopted was based on article 111 of the Civil Service and Administrative Staff Act, Act No. 476, which states verbatim: “Institutional restructuring and reorganization. When programmes of institutional restructuring or reorganization give rise to the termination of staff or employees, the effects of the abolition shall be established in the corresponding human resources adjustment programmes or plans formulated by the Government and approved by the Governing Body concerning established rights of staff and employees under the present Act. Public servants affected by these programmes shall be compensated in accordance with the provisions of the present Act and the respective collective agreement”; (4) on 15 March 2007 the contracts of employment of 21 medical supervisors were terminated (the names provided by the Government include almost all the trade union officials mentioned by the complainant organization); (5) on 19 March 2007, the medical supervisors mentioned by the Government filed a claim for reinstatement and payment of wages due with the judicial authority and a decision in the case is still pending; (6) on 16 April 2007, the dismissed workers Isabel Vanessa Rivera Ubeda (trade union official), Margarita del Carmen Sánchez Méndez and Ercilia Elizabeth Aguilera Centena, withdrew their legal action; and (7) to date, the following dismissed workers, all former members of STEINSS have settled their claims: Isabel Vanessa Rivera Ubeda, Sergio Juan Ramón Quiroz, Karla Esperanza Saavedra, Moisés Ruiz Romero, Karla del Rosario Alvarado Paíz, Ivette Pilarte Centeno and Frutos José Plazaola Cubillo.
3. 1088. In this respect the Committee recalls that on numerous occasions it pointed out that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions. In any case, the Committee can only regret that in the rationalization and staff-reduction process, the government did not consult or try to reach an agreement with the trade union organizations and also the Committee has emphasized that it is important that governments consult with trade union organizations to discuss the consequences of restructuring programmes on the employment and working conditions of employees [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 1079 and 1081]. In these circumstances, the Committee requests the Government to inform it whether STEINSS was consulted about the restructuring which took place and which according to the allegations prejudiced the trade union officials and members. In addition, observing that according to the Government, three workers withdrew their legal actions and seven settled their claims, the Committee, while noting that according to the Government the restructuring was carried out within the framework of the law, requests it to inform it of the result of the ongoing legal appeals relating to the remaining trade union officials and workers who were dismissed.
   • The Nicaraguan Aqueduct and Sewer Company of Estelí – ENACAL-Estelí
4. 1089. As regards the allegation relating to the termination of the contract of employment of Mr Fidel Castillo Lago (Minutes Secretary), official of the “Genaro Lazo” Union and 15 members, the Committee notes that the Government reports that on 12 June 2007 the trade union official in question filed a claim against the company which is still in progress. In this respect, the Committee requests the Government to inform it of the result of the judicial process initiated by the trade union official, Mr Fidel Castillo Lago, and to send its observations relating to the alleged dismissal of 15 members of the trade union.
   • The Nicaraguan Aqueduct and Sewer Company of Granada and the Nicaraguan Aqueduct and Sewer Company of Carazo
5. 1090. With regard to the allegations relating to the dismissal of eight officials of UTSO, nine officials of the Enacal Granada Workers’ Departmental Democratic Union and five officials of the Enacal Carazo Workers’ Departmental Democratic Union, the Committee notes that the Government reports that: (1) under decision No. 094-07 of the Inspectorate General of Labour of 11 May 2007, it was established that the Inspectorate General of Labour was competent under articles 244 and 249 of the Labour Code to hear and decide the application by ENACAL which on 9 May 2007 requested the Inspectorate to pronounce the illegality of the strike conducted by the workers of the Carazo and Granada departmental branches; (2) the reports of the special inspections carried out by the Inspectorate General of Labour in this matter showed that the workers of the Carazo and Granada branches had gone on strike without first exhausting the legal procedures, and had defaulted on their labour obligations by arbitrarily suspending their work, in relation to a claim of non-compliance with the collective agreement and the negotiation of a new list of demands; (3) irrespective of the reasons given by the workers of the ENACAL Carazo and Granada departmental branches for demanding improvements in their social and labour rights, these do not allow or legitimize them in holding a collective stoppage of work without respecting the procedures nor fulfilling the requirements clearly set out in the legislation; (4) faced with that situation, the Inspectorate General of Labour decided to allow the application by ENACAL for declaration of the strike as illegal and ordered the striking workers to return to work within 48 hours, failing which the employer might deem the contracts of employment of those who continue with the illegal act to be terminated; (5) the dismissal of the striking workers at ENACAL Granada and Carazo was not because they were trade unionists or exercising a trade union right (which right is protected by labour law), but for breach of labour legislation and the decision rendered by the Inspectorate General of Labour; (6) on 7 June 2007, certain ENACAL (Granada) workers filed a claim for reinstatement in the District Civil and Industrial Court in the department of Granada; and (7) on 11 June 2007, ENACAL (Carazo) workers filed a legal appeal in Jinotepe.
6. 1091. In this respect, the Committee observes that the Government has not indicated with sufficient precision the legal requirements which the trade unions apparently failed to respect (confining itself to stating that the legal procedures had not been exhausted). Furthermore, the Committee emphasizes that responsibility for declaring a strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved [see Digest, op. cit. para. 628].
7. 1092. In these circumstances, the Committee requests the Government: (1) to take measures, including of a legislative character if necessary, so that in future a body independent of the parties and in which they have confidence is responsible for declaring a strike illegal; (2) to inform it more precisely concerning the legal requirements that the organizations did not respect and which led to the strike being declared illegal and the subsequent dismissal of the trade union officials in order to be able to pronounce itself in full knowledge of the facts; and (3) to inform it of the result of the legal claims filed by certain ENACAL-Granada and ENACAL-Carazo workers. The Committee further requests the Government to inform it whether the trade union officials mentioned by name by the complainant organization have initiated legal actions relating to their dismissal.
   • The Nicaraguan Aqueduct and Sewer Company of Matagalpa
8. 1093. As regards the allegations relating to the dismissal of five officials (mentioned by name by the complainant organization) and 25 members of the ENACAL-DAR Matagalpa Democratic Trade Union, the Committee notes that, according to the Government, the company indicated that the five trade union officials mentioned by the organization had accepted payments in final settlement and the company had not been notified of any legal claim lodged by those workers. In this respect, the Committee requests the Government to confirm that the five trade union officials and the 25 trade union members who were dismissed have not initiated legal actions relating to their dismissal.
   • The Nicaraguan Aqueduct and Sewer Company of Jugalpa
9. 1094. As regards the allegation relating to the dismissal of Mr Kester Giovanni Bermúdez, official of the Chontales Department Independent ENACAL Workers Union and eight other workers, the Committee notes that the Government reports that he received payment of his final settlement. In this respect, the Committee requests the Government to indicate whether Kester Giovanni Bermúdez and the other eight workers whose dismissal was alleged have begun legal actions relating to their dismissal.
   • The Nicaraguan aqueduct and sewer company of Diriamba
10. 1095. As regards the allegation concerning the termination of the contract of employment of the Secretary of the ENACAL-Diriamba Workers’ Union, Mr Lester Francisco Ortiz, the Committee notes that the Government reports that the official in question withdrew the action which he had initiated, that the Jinotepe District Civil and Industrial Court ordered the proceedings to be stayed and that Mr Ortiz accepted a payment in final settlement, according to the office of the company’s CEO. In these circumstances, the Committee will not proceed with the examination of this allegation.
    • Directorate-General of Revenues (DGI)
11. 1096. As regards the allegation that the DGI signed a collective agreement with trade unions controlled by it, excluding other trade unions which were recognized by a collective agreement concluded in 2006, and rejected a list of demands submitted by those unions, the Committee notes that the Government reports that on 9 August 2007, the trade unions represented by the complainant organization asked to join the collective agreement concluded between the DGI, the SINTUR-DGI-UNE, the SINTRACAF-UNE and the SITRADGI and withdrew the list of demands submitted to the Ministry of Labour. The Committee also notes that the agreement was signed by all the trade union organizations mentioned by the complainant organization. In these circumstances, the Committee will not proceed with the examination of this allegation.
12. 1097. With regard to the allegation that, in breach of national legislation on trade union rights, the DGI ordered the dismissal of Ms Maura de Jesús Vivas Ramos, spokesperson of the SEPGRA-DGI, the Committee notes that the Government reports that a decision in favour of the worker was given by the Inspectorate General of Labour on 9 January 2008. In these circumstances, the Committee requests the Government to inform it whether by virtue of the decision of the Inspectorate General of Labour, reported by the Government, the trade union official Ms Maura de Jesús Vivas Ramos has been reinstated in her post with payment of wages due.

The Committee's recommendations

1. 1098. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the allegation concerning the dismissal of ten officials and 48 members of STEINSS, the Committee requests the Government to inform it: (1) whether the union was consulted about the restructuring which took place in the Institute and which prejudiced the trade union officials and members; and (2) the result of the ongoing legal appeals relating to the dismissals of the trade union officials and members who did not withdraw their legal actions.
   • (b) The Committee requests the Government to inform it of the result of the judicial process initiated by the trade union official, Mr Fidel Castillo Lago, Minutes Secretary of the “Genaro Lazo” Union of the Nicaraguan Aqueduct and Sewer Company of Estelí – ENACAL-Estelí and to send its observations relating to the alleged dismissal of 15 other members.
   • (c) With regard to the allegations relating to the dismissal of eight officials of the UTSO, nine officials of the Enacal Granada Workers’ Departmental Democratic Union and five officials of the Enacal Carazo Workers’ Departmental Democratic Union, the Committee requests the Government: (1) to take measures, including of a legislative character if necessary, so that in future a body independent of the parties and in which they have confidence is responsible for declaring a strike illegal; (2) to inform it more precisely concerning the legal requirements that the organizations did not respect and which led to the strike being declared illegal and the subsequent dismissal of the trade union officials in order to be able to pronounce itself in full knowledge of the facts; and (3) to inform it of the result of the legal claims filed by certain ENACAL-Granada and ENACAL-Carazo workers. The Committee further requests the Government to inform it whether the trade union officials mentioned by name by the complainant organization have initiated legal actions relating to their dismissal.
   • (d) As regards the allegations relating to the dismissal of five officials and 25 members of the ENACAL-DAR Democratic Trade Union, the Committee requests the Government to confirm that all the trade union officials and members concerned have not initiated legal actions.
   • (e) As regards the allegation relating to the dismissal of Mr Kester Giovanni Bermúdez, official of the Chontales Department Independent ENACAL Workers’ Union and eight other workers of the Nicaraguan Aqueduct and Sewer Company of Jugalpa, the Committee requests the Government to indicate whether legal actions have been commenced in this respect.
   • (f) The Committee requests the Government to inform it whether by virtue of the decision of the Inspectorate General of Labour, reported by the Government, the trade union official Ms Maura de Jesús Vivas Ramos has been reinstated in her post in the DGI with payment of wages due.