Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 349, Mars 2008

Cas no 2590 (Nicaragua) - Date de la plainte: 09-AOÛT -07 - Clos

Allegations: The Confederation of Labour Unification (CUS) alleges that in the context of a campaign to cause the disappearance of trade unions which do not agree with the Government, the trade union leader Mr Donaldo José Chávez Mendoza was dismissed

1. 1094. This complaint is contained in a communication dated 9 August 2007.
2. 1095. The Government sent its observations in communications dated 21 September and 18 October 2007.
3. 1096. 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. 1097. In its communication of 9 August 2007, the Confederation of Labour Unification (CUS) alleges that Mr Donaldo José Chávez Mendoza was dismissed on 12 July 2007 from his post in the Directorate General of Taxes (DGI), a decentralized agency attached to the Ministry of the Treasury and Public Borrowing, despite his position as trade union official, serving as finance secretary to the Democratic Staff Union of the DGI.
2. 1098. According to the complainant organization, the arguments presented by the employer for proceeding with the dismissal were that Mr Chávez Mendoza exercised a position of trust. The complainant organization adds that neither the right of employment stability established in article 37 of the Act on the Civil Service and the Administrative Career, nor the trade union rights established in article 231 of the Labour Code, whereby the dismissal of a trade union official requires the authorization of the Ministry of Labour, were respected.
3. 1099. The CUS alleges that Mr Chávez Mendoza submitted a judicial appeal on 23 July 2007, which has still not been decided, and indicated that there are considerable delays in issuing judgements in the judicial system in Nicaragua.
4. 1100. The complainant organization adds that this dismissal is part of a policy aimed at the destruction of trade unions which oppose the new Government. The complainant organization indicates that the directors of public entities, recently appointed by the new Government, interfere in trade union activities and participate in trade unions supportive of the Government, with the intention of destroying organizations which are not in agreement with the Government, dismissing the latter’s officials, without respecting trade union rights or legal provisions, due to their trade union activities in defence of workers’ rights and collective agreements concluded previously.

B. The Government’s reply

1. 1101. In its communications of 21 September and 18 October 2007, the Government indicates that Mr Donaldo José Chávez Mendoza was dismissed from the DGI in accordance with the legislation. Mr Chávez Mendoza was employed as adviser in the Procurement Unit of the Material and Financial Resources Division of the DGI. According to the Government, this is a position of trust within the institution, as laid down in article 7 of the Labour Code and article 14 of the Act on the Civil Service and the Administrative Career, which provides that the category of employee and official in a position of trust applies to those “whom the Administration of the State contracts to provide personal services or hold permanent advisory posts in technical assistance and technical assistance and/or directive administration in offices of the principal public officials”. Mr Chávez Mendoza was the sole adviser on procurement matters in the DGI. It was he who directly advised the administrative finance director on legal matters related to State contracts. Without his signature, the finance director could not contract or acquire the goods and services needed by the DGI at national level. In addition, he acted as legal adviser to the Tenders Committee, which is the administrative organ which administers over 35 per cent of the public budget allocated to the Directorate General of Taxes.
2. 1102. The Government adds that article 11 of the Act on the Civil Service and the Administrative Career establishes exceptions relating to the administrative career for officials and employees in positions of trust, whereby there is no prior legal procedure or requirement for terminating their employment.
3. 1103. In addition, the Government indicates that Mr Chávez Mendoza did not instigate administrative actions against his dismissal but appealed directly to the court, where the action is still pending.

C. The Committee’s conclusions

1. 1104. The Committee observes that this case refers to the dismissal of a trade union official in the Directorate General of Taxes (DGI) without the relevant removal of trade union immunity.
2. 1105. The Committee notes that, according to the allegations submitted by the Confederation of Labour Unification (CUS), Mr Donaldo José Chávez Mendoza was dismissed on 12 July 2007 from his post in the DGI despite his trade union immunity as finance secretary to the Democratic Staff Union of the DGI. The Committee notes that, according to the complainant organization, the dismissal was part of a policy aimed at the destruction of all those trade unions which opposed the new Government. The Committee also notes that Mr Chávez Mendoza initiated legal action for reinstatement, which despite the time elapsed is still pending.
3. 1106. The Committee notes the Government’s observation that Mr Chávez Mendoza was employed in the Directorate General of Taxes in a position of trust, in relation to which article 11 of the Act on the Civil Service and the Administrative Career establishes exceptions relating to the administrative career for officials and employees in positions of trust, whereby there is no prior legal procedure or requirement for terminating their employment. The Committee notes that the Government indicates that Mr Chávez Mendoza resorted to the court, and that no judgement has been given up to now.
4. 1107. In this respect, the Committee emphasizes that although according to the Government, Mr Chávez Mendoza exercised a position of trust and consequently in accordance with the law, it could terminate his services without any prior proceedings, he was also a trade union official and by virtue of that position, should have been the subject of the special protection provided by the guarantee of trade union immunity according to which an official cannot be dismissed without the authorization of the Ministry of Labour, which was not done. In this respect, the Committee recalls that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct. One of the fundamental principles of freedom of association is that workers enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Committee on Freedom of Association, fifth edition, 2006, para. 804].
5. 1108. As regards the allegations that the dismissal of Mr Chávez Mendoza is part of a policy intended to destroy trade unions opposed to the new Government, the Committee observes that the Government does not send its observations in this respect. The Committee recalls that freedom of association entails respect for the right of trade unions and their officials to their opinions, even in those cases where they criticize the country’s social and economic policies.
6. 1109. In these circumstances, bearing in mind the status of Mr Chávez Mendoza as a trade union official, and that the legislation requires the authorization of the Ministry of Labour to dismiss a trade union official, which did not occur in the present case, the Committee requests the Government to take the measures necessary to ensure that he is reinstated in his post without loss of pay until the judicial authority gives its final judgement and to send a copy of the ruling as soon as it is handed down. The Committee further requests the Government to take the necessary measures so that an independent investigation is carried out to determine if there is in fact an anti-union policy against trade unions that are not in agreement with the Government and, if these allegations are shown to be true, to put an immediate end to such anti-union measures and to guarantee the free exercise of trade union activities of those organizations and their officials. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 1110. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Bearing in mind the status of Mr Chávez Mendoza as a trade union official, and that the legislation requires the authorization of the Ministry of Labour to dismiss a trade union official, which did not occur in the present case, the Committee requests the Government to take the measures necessary to ensure that he is reinstated in his post without loss of pay until the judicial authority gives its final judgement and to send a copy of the ruling as soon as it is handed down.
   • (b) The Committee further requests the Government to take the necessary measures so that an independent investigation is carried out to determine if there is in fact an anti-union policy against trade unions that are not in agreement with the Government and, if these allegations are shown to be true, immediately to put an immediate end to such anti-union measures and to guarantee the free exercise of trade union activities of those organizations and their officials. The Committee requests the Government to keep it informed in this respect.