Rapport définitif - Rapport No. 133, 1972

Cas no 662 (Nicaragua) - Date de la plainte: 16-MARS -71 - Clos

1. 83. The Committee examined this case previously at its meeting in November 1971, when it submitted to the Governing Body a final report, to be found in paragraphs 22 to 43 of its 128th Report, which was approved by the Governing Body at its 185th Session (February-March 1972).
2. 84. By a communication dated 19 May 1972, the Government made certain observations on the conclusions reached by the Committee in this case.
3. 85. Nicaragua has ratified both 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. A. The complainants' allegations

1. 86. In its general conclusions with regard to the case, the Committee had recommended the Governing Body, inter alia:
   • (c) with regard to the composition of the Nicaraguan Teachers' Trade Union Federation, to draw the attention of the Government to the fact that the legislation in force is incompatible with the right of trade unions to establish federations of their own choosing;
   • (d) with regard to the allegation that the Ministry of Labour seized control of the funds of the Teachers' Union of Managua, to draw the Government's attention to the principle that control over the internal acts of a trade union should be exercised by the relevant judicial authority, or by a person who enjoys some degree of independence of the administrative authorities and who is himself subject to the control of the judicial authorities, and to point out that the authorisation still required by the Teachers' Union of Managua to draw on its bank accounts runs counter to the right of trade unions to organise their administration and activities;
   • (e) with regard to the allegation concerning interference by the authorities in the establishment of new unions, to draw the attention of the Government to the provisions of Article 11 of Convention No. 87, and to the principle that the public authorities should refrain from any interference which would restrict the right of workers' organisations to elect their representatives in full freedom;
2. 87. As concerns the composition of the Nicaraguan Teachers' Trade Union Federation, the Government had stated previously that this organisation had been guilty of breaches of the Trade Union Regulations, and that, in particular, it was composed of unions from different departments, thus contravening the provisions of section 43 of the Regulations, which provides that trade unions from different departments may not form a federation. The Committee had expressed the view that such a provision constituted a restriction of the right of workers' organisations to establish federations and Confederations, recognised by Article 5 of Convention No. 87. In this connection, the Committee recalled the importance that should be attached to the principle laid down in Article 2 of Convention No. 87 that workers shall have the right to establish and join organisations of their own choosing, a principle that implies for the organisations themselves the right to establish and join federations and Confederations of their own choosing (Articles 5 and 6 of the Convention). The Committee therefore considered that conditions laid down by law for the organisation of federations were incompatible with these standards, which include the right of trade unions to form such federations as they see fit.
3. 88. In its new communication the Government maintains that the aforementioned provision of the Trade Union Regulations owes its existence to the fact that organisations are the product of mutual and identical interests arising from the close connection of these organisations. On the other hand, even between persons having the same trade or occupation, their problems differ depending on the geographical location of their work. Section 43 of the Regulations is extremely conducive to the orderly establishment of federations, which cannot in some cases reconcile divergences between trade unions. The Government further points out that the Nicaraguan Teachers' Trade Union Federation has likewise failed to carry out certain formalities required under section 65 of the Regulations and accordingly cannot claim that it is lawfully constituted under the terms of the law.

B. B. The Committee's conclusions

1. 89. The Committee takes note of the Government's explanations, and is of the opinion that there is no infringement of the principles of freedom of association if trade union organisations are obliged to comply with certain purely formal requirements laid down by law with respect to their Constitution. Nevertheless, as concerns requirements of substance, the Committee must re-emphasise its earlier observation to the effect that section 43 of the Regulations is not compatible with the terms of Convention No. 87, in terms of which trade unions should have the right to form such federations as they see fit, even if these federations comprise trade unions relating to different activities or in different districts.
2. 90. With regard to the control of the funds of the Teachers' Union of Managua, the Government had referred in its first communication to the discovery by the labour authorities of certain irregularities in the management of these funds, as a result of which the Department of Associations had ordered that no withdrawals should be made from the Union's bank account unless the cheques were first endorsed by the Head of that Department. In its new communication the Government claims, in reply to the Committee's observation concerning the nature of this control, that it is inadmissible to doubt the honesty of the administrative authorities or to assume that it acted in bad faith. The Government further declares that the Union accepted the action taken by the Department, since it did not avail itself of its Constitutional right to apply for an injunction, and that accordingly it failed to exhaust the remedies provided for by Nicaraguan law.
3. 91. The Committee takes note of the Government's comments, and considers it pertinent to point out that it is important that control over the internal acts of a trade union should be exercised by the relevant judicial authority not only in order to ensure that it is exercised in an impartial and objective manner but also to avoid the risk of measures Of control taken by the administrative authorities appearing to be arbitrary. Furthermore, the Committee considers it necessary to re-emphasise its earlier observation to the effect that the authorisation still required by the Teachers' Union of Managua to draw on its bank accounts runs counter to the right of trade unions to organise their administration and activities.
4. 92. Lastly, as concerns the allegation relating to interference by the authorities in the establishment of new unions, concerning which the Government had failed to make any observations, the Committee takes note of the statement made by the Government in its new communication to the effect that no interference in fact occurred, but that, on the other hand, teachers who differed with the line of action taken by the Federation undertook spontaneously and on their own initiative to set up other organisations which they felt would be better fitted to defend their interests.

The Committee's recommendations

1. 93. In these circumstances, and as concerns the case as a whole, the Committee recommends the Governing Body to take note of the Government's observations with respect to the conclusions reached previously in regard to this case, and to draw the attention of the Government to the considerations set forth in paragraph 89, above concerning the Constitution of federations and in paragraph 91 above concerning the control and management of trade union funds.