2007 Annual Survey of violations of trade union rights - Nicaragua
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Nicaragua, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca1728.html [accessed 31 May 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
The transnational companies and factories in the export processing zones remain laboratories for all kinds of anti-union strategies. Closures of maquiladoras are continuing and job insecurity is undermining organising. A strike by medical workers was brutally suppressed.
Trade union rights in law
Freedom of association: All public and private sector workers, with the exception of the armed forces and the police, may form trade unions and join the trade unions of their choice. They are also free to create federations and confederations, and to join international organisations. At least 20 people are required to form a trade union; no prior authorisation is needed. Once created, it must be entered in the Register of Trade Union Associations, thereby endowing it with legal status. The members of the union's steering committee must be Nicaraguan.
Limited protection: Union leaders have protected status, but this is limited to nine executive members per union and three branch members. The Labour Code allows enterprises to dismiss any employee, including union organisers, provided they have the permission of the Ministry of Labour (MITRAB) and pay double the usual severance pay.
Strikes and collective bargaining: The right to strike is recognised, albeit with some limitations. To be considered officially approved, a strike must have the support of at least 50 per cent plus one of the total number of members of the trade union. Votes on strikes are held at an extraordinary general meeting. The trade union must receive the approval of the Ministry of Labour before engaging in strike action. A mediation procedure involving the Ministry of Labour, must first be exhausted. Once a strike has been declared legal, the authorities have 30 days to exercise their right to demand compulsory arbitration in order to resolve the conflict. Labour law allows sympathy strikes in support of another legal strike in the same industry or business.
The Regulation on Trade Union Associations (Reglamento de Asociaciones Sindicales) also limits the right to strike by federations and confederations. In the event of a dispute, federations and confederations may only provide the workers in question with advice and moral or financial support.
The right to collective bargaining is recognised in the Labour Code, which stipulates that companies engaged in disputes with employees must negotiate with the union, where one is present.
Trade union rights in the export processing zones (EPZs): Whilst stipulating the need to respect the Constitution and national laws, the Foreign Investment Law regulating the EPZs opens a loophole for avoiding their jurisdiction by providing for discrepancies, controversies and claims to be settled by an arbitration court.
Trade union rights in practice
Management strategies for destroying unions: Those companies that do have trade unions are tirelessly seeking ways of destroying them so that can carry on imposing their policies at will. Mass dismissals, including the leaders or founder members of trade unions, are a key ploy for getting rid of unions or preventing the creation of new ones. Another tactic is to offer workers incentives for leaving a union. Employment relationships are changing through the imposition of short-term and even one-day contracts, which make it impossible to increase a union's membership. Companies have also been making changes that may appear to be formalities but in fact affect union organising, such as changing their trade names as a legal way of de-legitimising the union or replacing members of management with anti-union "hardliners".
De-recognition of existing unions: Where unions exist, companies try to break them up but also ignore their rights in practice. Cases of arbitrary breaches of collective agreements are common and constitute attacks on workers' main bargaining tool. Union officials are also prevented from carrying out essential organising activities, such as holding meetings, providing information to inspectors or circulating information within the company, etc.
Forming new unions is almost impossible: As a final link in the chain of their anti-union violence, companies have done their utmost to prevent the creation of new trade unions that could replace or continue the work of those they are trying to destroy. That involves mass dismissals of all those people trying to set up a union just before the Ministry of Labour grants it a legal identity. There have been many cases like that, mainly in the EPZs. The lack of trade unions is also undermining collective bargaining rights, since the two sets of rights are directly linked. As a result there is a preponderance of individual contracts, with workers focusing on keeping their jobs rather than negotiating the quality of those jobs and ensuring respect of workers' rights.
Export processing zones (EPZs): The worst violations occur, as is often the case, in the export processing zones (EPZs). Barely 6 per cent of the workers are union members, largely due to the employers' hostility towards unions. Very few of the unions in the zones have real collective bargaining power. Workers are not represented on the EPZ National Committee.
The economic and legal framework in which these companies are operating seriously hinders the growth and consolidation of the few existing trade unions and the creation of new ones. Since the companies are financed by floating capital the factories are regularly closed so there is chronic instability for the workforce. Simply threatening that the company will leave the country is a very effective way of silencing the workers and preventing them from getting organised. The actual closures that do take place destroy any efforts to organise that were under way. In November 2006 it was reported that 20 factories had closed during the year, representing 5,000 jobs.
Pro-company anti-union complicity by the Ministry of Labour: The MITRAB ignores the anti-union behaviour of companies on a daily basis and its attitudes prevent the registration of new trade unions, either by delaying such moves or sometimes actually preventing their creation. This is all despite the fact that the Labour Code stipulates a ten-day period for registering trade unions and imposes sanctions in the event of registration being delayed. The MITRAB is also failing in its task of facilitating and promoting the organising of working people.
Violations in 2006
Background: The election campaign for the Presidential Election on 5 November dominated Nicaraguan politics throughout the year. After 16 years out of power, the Sandinista Liberation Front ("Frente Sandinista de Liberación Nacional") returned to government, headed by its historical leader, Daniel Ortega. The event brought a mixture of challenges, hopes and concerns for the trade union movement, since the new political set-up is making it change its strategies and its relations with the government.
De-recognition of trade unions and anti-union dismissals: On 18 January 2006, the independent workers' union at Nicaragua Sugar State Limited presented its application for registration to the Ministry of Labour's competent directorate (the "Dirección de Asociaciones Sindicales") in Managua. The directorate issued its decision on 22 March 2006, rejecting the application. Later the same thing happened to the independent union at the San Antonio plant, and the company – which is one of the most powerful in the country – took advantage of the situation to sack the workers who are members of those organisations.
Continued anti-union strategy by Coca Cola: The union at the FEMSA Coca Cola bottling plant SUTEC ("Sindicato Único de Trabajadores de Coca Cola) submitted a complaint in February to the Nicaraguan Human Rights Centre concerning a series of strategies deployed by the company aimed at destroying the union. The main one was the collective dismissals of union members that had started the previous year (see 2006 Survey).
Another strategy has been to make it a requirement for anyone applying for a post to leave the trade union. The company also changed its trade name to the "Industria Nacional de Refrescos S.A.", using this as a pretext for de-recognising the union since its name now included that of a non-existent company.
The Labour Ministry has also been complicit in these strategies, for instance by declaring the union to be "on strike" after simply hearing from the management that the union leaders had met the staff for five or ten minutes.
Tensions at Parmalat Centroamérica S.A. owing to its anti-union policy: The "Armando Llanes" union at the company "Parmalat Centroamérica en Nicaragua" called a general strike in March which halted production. The strike was the culmination of strong protests by the workers against anti-union policies and harassment and violation of the rights of members of the union since its creation in 2004. The serious unrest forced the company to sign an agreement with the Labour Ministry to respect the workers' rights and change its attitude towards the union.
In September, the union complained about another anti-union manoeuvre by the company, which appointed as its manager the former director of Parmalat Paraguay, whom the International Union of Foodworkers (IUF) describes as having an anti-union background and a history of destroying the unions in that group.
According to the union the agreement signed in March has not been enforced and the pressure on the union and its members has continued. In addition, the company has been taking on increasing numbers of people on one-day contracts and these people, who number 80 at the moment, are not allowed to join the union as they are not on permanent contracts.
Medical workers' strike repressed: On 5 May 2006 a demonstration by doctors, who had been on strike for six months, with four on a hunger strike, was repressed. Whilst the workers were trying to negotiate a pay increase with the Ministry of Finance, the police used violence to break up the demonstration. 88 people were arrested, 22 medical workers were injured and 3 human rights activists were also attacked.
Dismissals, court cases and trade union harassment in the maquiladoras: The "Edgar Roblero" union in the KB Manufacturing Company S.A., which has American ownership, has suffered all kinds of violations of its rights. The company has expressly failed to implement the collective agreement and this year it filed a court case to dissolve the union. Most of the union leaders have been sacked and the General Secretary of the union Ángel Ávalos was isolated and discriminated against in his work and then unfairly dismissed.
The mass dismissals of workers at the former Chaprich company (see 2006 Survey) have continued. No severance pay has been paid, with the company evading its responsibilities on the grounds that it changed its trade name, from Chaprich to Empresa Mil Colores S.A. Reports from the CENIDH have attested to harassment of members of the union at Chaprich since it was founded. The women workers in the union were prevented, for example, from passing on information to labour inspectors and were forced by their supervisors to return to their work stations.
Two maquiladoras, Atlantic in Granada and Calypso Apparel in Masaya, used the same strategy to prevent the creation of unions. In both cases they sacked all the workers who were trying to join the union, before the MITRAB registered it. It is not clear how the management got hold of the list of workers joining the unions however both the unions and labour organisations suspect MITRAB of complicity in these cases.
The International Textile, Garment & Leather Workers' Federation (ITGLWF) accused the company Istmo Textil of conducting an anti-union campaign comprising mass dismissals and threats against collective agreements. In April eight trade union officials were sacked, three days after they had joined the union. They were reinstated in July, following an international campaign.