2008 Annual Survey of violations of trade union rights - Nicaragua
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Nicaragua, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca79c.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
There has been a sharp increase in the number of unions, with the Ministry of Labour promoting trade unions. There has been no reduction in freedom of association violations, however. Companies in the export processing zones continue to be the principal violators of trade union rights. There were major strikes by teachers, and several strikes were declared illegal.
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. If there is no agreement between the parties within 30 days of the strike being declared legal, the Ministry of Labour may intervene and end it. 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 and Violations in 2007
Background: Daniel Ortega of the Sandinista National Liberation Front (FSLN) became president of the Republic on 10 January. By the end of the new government's first year, a nation that had been subjected to poverty through years of neoliberalism did not feel expectations had been met, despite several "social investment" programmes. The new government had not redirected or fundamentally changed the trade-driven economic policies, continuing to opt for free trade, an open economy and incentives for foreign investors. However, some measures taken in the Ministry of Labour showed greater political will towards enforcing workers' rights.
Advances at the Ministry of Labour allow for increase in number of unions: During the year, the MITRAB demonstrated its political will to help increase the number of trade unions and eliminate the many obstacles to the registration of trade unions that used to exist within it, which had supported the anti-union policies of the employers.
From January the MITRAB agreed that it would no longer process letters from workers renouncing union membership, saying they had signed under pressure or were misled. These letters had been one of the mechanisms used by employers to reduce the number of workers forming a union. This avoided the objections that used to be raised by the Department for Trade Union Associations before a union was even founded. The Ministry's decision has extended and protected trade union immunity from the moment an organisation is formed de facto, even before it is granted legal personality. By the end of the year, there were more than 90 per cent more trade unions. In 2006 there were 101 and now there are 200.
Employer strategies to destroy unions continue: Those companies that do have trade unions tirelessly seek ways of destroying them so that they can carry on imposing their policies at will. Mass dismissals, including of 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".
Export processing zones (EPZs): The worst violations occur in the export processing zones (EPZs), where the employers' hostility towards unions continues. Very few of the unions in the zones have real collective bargaining power, despite the fact that the new Minister of Labour, Jeannette Chávez, warned the companies in the zones that they are obliged to respect workers' rights. She announced there would be an inspection of companies that prevented the formation of trade unions.
Strikes declared illegal and mass dismissals: Teachers organised sit-ins in several schools in March and April 2007. About 2,000 teachers from around the country took part in a demonstration on 5 April, and many workers joined a hunger strike.
The demonstrations began on 27 February when the National Teachers' Confederation of Nicaragua (CNMN) called a strike in support of their demands for a pay rise, job stability and the recognition of their organisations. The Minister of Education responded by dismissing more than 300 teachers and withholding the salaries of those who took part in the strike. The strike ended with an agreement to grant a rise of 400 cordobas, equivalent to about 22 dollars.
On 11 May, the Minister of Labour declared the strike at the Nicaraguan Aqueduct and Sewer System Company (ENACAL) in the cities of Masaya, Rivas, Granada and in the Carazo department illegal and ordered that the strikers return to work within 48 hours. The strike began on 10 May over the nonpayment of overtime, in contravention of the collective agreement.
On 14 May, 146 workers were dismissed. According to the official version, they did not return to their posts within 48 hours, as ordered by MITRAB. However, the employees had promised to be back at work on the following Monday, but they found their workplaces locked and new workers in their place. Despite lodging complaints, the workers were not reinstated.
On 9 August the employees of the Sajonia office of the Supreme Electoral Council (CSE), in Managua, ended their two-and-a-half-week strike after the MITRAB declared it illegal and urged the strikers to return to work within 48 hours. The employees were calling for higher pay, fulfilment of the obligation to pay overtime and food allowances, and the payment of compensation to some 300 workers who were dismissed after the 2006 national elections. A few days later the general secretary of the National Union of Independent Employees of the CSE (UNEICSE), Carolina Mena, reported that the CSE had made her take "forced leave" in retaliation for her union's strike and that the authorities had given the order to prevent her entering CSE premises.
Trade union members and leaders in the maquilas face threats and dismissals: The Nie Ching Garment maquila dismissed six trade union leaders affiliated to the Che Guevara Union, to avoid having the union in the company. Although the company agreed to reinstate the workers, on 1 August the union leaders reported that they had received anonymous death threats, in which they were explicitly warned that they should leave the trade union movement, leading them to suspect that it was intimidation by the company's management.
By the end of the year, the SAE-A Tecnotex maquila had not complied with a 2006 ruling by the Ministry of Labour to reinstate six dismissed trade union leaders.
Textile companies close down and dismiss workers: On 5 September the Everly clothing factory closed and dismissed 400 workers. It was claimed that the reason was low productivity, and that that was why the raw materials would be transferred to the Metro Garment company, owned by the same investors. In reality, the closure was due to a 10,000 cordoba fine (540 dollars) imposed by the MITRAB because the factory had failed to pay overtime, as required by law.
Metro Garment agreed to employ former Everly workers if they signed an agreement not to form a union and threatened to close the factory if workers tried to organise.
KB Manufacturing closed down and has not yet paid the money it owes to 11 trade union leaders who took the company to court.