Rapport définitif - Rapport No. 340, Mars 2006

Cas no 2394 (Nicaragua) - Date de la plainte: 26-OCT. -04 - Clos

Allegations: Refusal by the administrative authority to register changes in the executive committee of the complainant organization

1159. The complaint is contained in a communication from the Trade Union of Employees in Higher Education “Ervin Abarca Jimenes” (SIPRES-UNI, ATD) dated 26 October 2004.

1. 1160. The Government sent its observations in communications dated 16 February and 2 March 2006.
2. 1161. 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 complainants’ allegations

1. 1162. In its communication dated 26 October 2004, the Trade Union of Employees in Higher Education “Ervin Abarca Jimenes” (SIPRES-UNI, ATD) alleges that on 4 February 2003, the executive committee of the trade union called elections for a new executive committee, which were carried out under the supervision of a labour inspector, who attested the legal act of the election, for a term lasting from 5 March 2003 to 4 March 2004, of the executive committee consisting of: Mr. Julio Noel Canales, General Secretary and legal representative; Mr. Jorge Guevara Balladares, Organizing Secretary; Mr. Elías Martínez Rayo, Secretary for Labour Matters; Mr. Héctor Doña Miranda, Finance Secretary;
2. Mr. Ervin Lezcano Carcache, Secretary for Academic Matters; and Mr. Richard Zamora Navarro, Cultural Secretary. On 7 February 2003 the union applied for registration of the change of executive committee to the Trade Union Associations Directorate of the Ministry of Labour. On 4 March 2003 the Directorate replied to the request declaring it “dismissed”, in complete contradiction with the provisions of the law.
3. 1163. Faced with this refusal, the union filed an appeal with the General Labour Inspectorate on 4 March 2003 and on the following day, in Decision No. 051-03, the General Labour Inspector upheld the appeal and ordered the Trade Union Associations Directorate to register the change in the executive committee.
4. 1164. The complainant adds that on 6 March 2003, when the general secretary of the trade union went in person to the Trade Union Associations Directorate to request an extension of certification registering the change in the executive committee, as ordered by the General Labour Inspector, the Director of Trade Union Associations refused to extend it, stating that he did not recognize the General Labour Inspector’s decision, on the grounds that it was totally illegal, and also refused to issue a written declaration to that effect.
5. 1165. The complainant states that the hierarchical superiors of the Director of the Trade Union Associations Directorate, such as the Director of Labour Relations of the Ministry of Labour and the Minister of Labour, as well as the President of the Republic, have been notified of the refusal, but have ignored the trade union’s requests.
6. 1166. Lastly, the complainant points out that the failure to register its executive committee has prevented the trade union from negotiating salary increases in 2003 and 2004, as well as a list of demands submitted with a view to a collective agreement in January 2002, and resulted in its representatives on the collegiate bodies of the National University of Engineering being expelled for not having the certification that the Director of the Trade Union Associations was supposed to have issued. Attachments sent by the complainant include a letter from the Minister of Labour dated 24 August 2004 to the Permanent Commission on Human Rights, linking the refusal to register the new executive to an inter-union problem, as well as the decision on the appeal filed by the complainant, handed down by the General Labour Inspector on 7 February 2003.
7. B. The Government’s reply
8. 1167. In its communications of 16 February and 2 March 2006, the Government mentions that the dispute in this case concerns the renewal of the registration of the “Ervin Abarca Jimenes” trade union executive committee, submitted by Mr. Julio Noel Canales to the Trade Unions Registry of the Labour Ministry; the term of that executive committee had expired on 4 September 2002 and another group of workers from the same organization decided to hold a general meeting to elect a new executive committee, different from the one led by Mr. Canales.
9. 1168. According to the Government, the complainants expressly recognize that throughout this matter, their rights have been respected and that they enjoyed adequate and effective remedies. However, the fact that such remedies exist does not necessarily mean that the judicial or administrative decision will be issued in favour of applicants. They admit that several criminal or appellate jurisdictions have dismissed some of their requests, while others are still pending. The Ministry of Labour considers that the various judicial and administrative jurisdictions have acted in conformity with national laws.
10. 1169. The national legislation in place recognizes trade unions as any other workers’ or employers’ association as regards representation and the defence of interests. States have the right to establish in their legislation those conditions that are necessary for the regular functioning of organizations. That being so, conditions specified in the regulations concerning the establishment and functioning of workers’ organizations are compatible with the right to associate, provided that the regulation does not impede the full exercise of freedom of association and collective bargaining.
11. 1170. Trade unions may be established without prior authorization and the Trade Unions Registry grant them legal personality. Registration is optional and does not interfere in the establishment of trade unions. It strengthens the exercise of basic rights of association, even where registration is denied. The Trade Unions Registry will only deny registration in the following cases if: (a) the trade union objectives are not in line with the provisions of the Labour Code; (b) the trade union does not have the number of members required by the law; and (c) it is proven that the signatures are forgeries, or that the registered persons do not exist.
12. 1171. These are not absolute prerequisites, and these conditions may be complied with a posteriori by organizations, in which case the Registry will proceed with the registration according to the law. If the registration is denied, the decision is subject to appeal or amparo proceedings.
13. 1172. The existence of two alleged executive committees in the same trade union has been the source of a series of administrative and judicial proceedings: the Directorate of Trade Unions, the General Directorate of Labour Relations, the departmental and the general inspectorates of labour, in the administrative sphere; and the labour, civil and penal jurisdictions in the judicial sphere. That situation has led to jurisdiction disputes, since administrative authorities cannot intervene in issues of a strictly judicial nature and must apply court decisions. In the circumstances, the complaint in the present case is an issue that concerns the Directorate of Trade Union Associations, rather than a possible fault or negligence of the Government as alleged by the complainants.
14. 1173. The Government indicates that, in its judgement of 10 October 2002, Judge Olga Maria Brenes of the Managua second court district has ordered the Directorate of Trade Union Associations of the Labour Ministry to desist from the case concerning the “Ervin Abarca Jimenes” trade union and to transmit all exhibits and evidence concerning that organization. All proceedings taken by the complainant will henceforth be considered as null and void, under the court decision of Judge Brenes. Finally, the Government sent a report on this case by the Directorate of Trade Union Associations of the Ministry of Labour dated 6 December 2005, with the various incidents, decisions and appeals. This report concludes by indicating that on 20 September 2005, Mr. Noel Canales requested the Directorate of Trade Union Associations, in conformity with Decision No. 051-03 issued by the General Labour Inspectorate, to register the executive committee of his organization; copies of the official records and the ruling of the First Civil Court of the Managua District, issued on 25 August 2005, were annexed to the communication.

C. The Committee’s conclusions

1. 1174. The Committee observes that in this case the complainant alleges the refusal by the Trade Union Associations Directorate to register the executive committee of the complainant trade union elected in February 2003 for a one-year term and to register it accordingly, notwithstanding a decision of 5 March 2003 by the General Labour Inspector ordering its registration. The Committee emphasizes that the complaint presented by the complainant is dated 26 October 2004, and thus the facts at issue in the complaint relate to earlier situations that no longer exist.
2. 1175. The Committee notes the Government’s observations that the complaint results from an inter-union dispute within the “Ervin Abarca Jimenes” trade union and that a court, on 10 October 2002, i.e. even before the facts stated in the complaint, ordered the Directorate of Trade Union Associations of the Labour Ministry to desist from this case and to transmit all exhibits and evidence concerning that organization. The Committee notes that this case was decided by the courts in August 2005 in favour of the complainant organization.
3. 1176. The Committee would like to refer to some of the attachments sent with the complaint which provide additional information. In particular, it is clear from the decision handed down by the General Labour Inspector on 7 February 2003 that judicial proceedings were pending at that time in which the trade union authority was requested to declare the elected executive committee null and void. In addition, a letter from the Minister of Labour dated 24 August 2004 refers to the existence of an inter-union problem since 2002.
4. 1177. In these circumstances, the Committee draws the Government’s attention to the principle that, in order to avoid the danger of serious limitations on the right of workers to elect their representatives in full freedom, cases brought before the courts by the administrative authorities involving a challenge to the results of trade union elections should not – pending the final outcome of the proceedings – have the effect of paralysing the operations of trade unions [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 406]. Accordingly, the Committee regrets that the Trade Union Associations Directorate of the Ministry of Labour has not enforced the decision of the General Labour Inspectorate of 7 February 2003 concerning the appeal, ordering the registration of the executive committee of the complainant trade union, and that the Trade Union Associations Directorate has not extended certification to that executive, thus preventing the complainant trade union from defending its members’ interests, in particular through collective bargaining. The Committee regrets the administrative delays which occurred in this case and requests the Government to execute the ruling of the judicial authority dated 25 August 2005, mentioned by the Government, which ordered the registration of the executive committee of Mr. Julio Noel Canales. The Committee expects the Government in future to guarantee fully the right of workers’ organizations to elect their representatives in full freedom, in accordance with Article 3 of Convention No. 87, as well as the principle mentioned above.

The Committee's recommendations

1. 1178. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that the Trade Union Associations Directorate of the Ministry of Labour has not enforced the appellate judgement against the General Labour Inspectorate decision of 7 February 2003, ordering the registration of the executive committee of the complainant trade union, and that the Trade Union Associations Directorate has not extended certification to that executive, thus preventing the complainant trade union from defending its members’ interests, in particular through collective bargaining. The Committee regrets the administrative delays which occurred in this case, and requests the Government to execute the ruling of the judicial authority dated 25 August 2005, mentioned by the Government, which ordered the registration of the executive committee of Mr. Julio Noel Canales.
   • (b) The Committee expects the Government in future to guarantee fully the right of workers’ organizations to elect their representatives in full freedom, in accordance with Article 3 of Convention No. 87, as well as the principle that “in order to avoid the danger of serious limitations on the right of workers to elect their representatives in full freedom, cases brought before the courts by the administrative authorities involving a challenge to the results of trade union elections should not – pending the final outcome of the proceedings – have the effect of paralysing the operations of trade unions”.