2009 Annual Survey of violations of trade union rights - Nicaragua
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Nicaragua, 11 June 2009, available at: http://www.refworld.org/docid/4c52cad32d.html [accessed 1 September 2015]|
|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 number of registered trade unions continues to rise. Labour laws essentially protect workers' rights, but problems remain with their application. The elections polarised the population and led to violence in the streets.
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.
The right to collective bargaining: 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.
The right to strike: 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.
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 international arbitration.
At the end of 2007 the Law on the Professional Qualification of Labour and Social Security Lawyers (no. 637) was approved and published. The aim is to recognise and authorise trade union leaders who can give legal advice to individual workers or trade unions, cooperatives, associations and guilds involved in labour court and ordinary court proceedings. So far 35 labour lawyers have been accredited.
Trade union rights in practice and violations in 2008
Background: Nicaragua is still the second poorest country in Latin America. The country was polarised around two political choices in the national elections, leading to clashes between the supporters of the two parties. The electoral process and the outcome of the vote were questioned by several countries, including those of the European Union. International support and cooperation has been frozen until the situation is clarified. The multilateral financial institutions, which require legislative approval to grant loans, have followed suit. Poverty has deepened, and so far the social and political actors have not reached a lasting agreement on a project they can all support.
Steady rise in number of unions registered: A total of 192 trade unions were registered in 2008, eight less than the year before. Twenty-six federations and six confederations were also registered. The Ministry of Labour has sought to improve the efficiency of trade union registration, decentralising it in order to facilitate the registration of workers from the interior and from areas far from the capital. The aim is to remove the many obstacles that arose in the registration process and that made the Labour Ministry complicit in companies' anti-union policy.
Companies oppose union organising: It is part of company culture to persistently oppose the free exercise of trade union rights, and to use the advice of lawyers and managers to do so. Unionised workers speak of constant attacks, harassment and other forms of pressure aimed at forcing them to leave the union or the company. 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. Employers frequently offer workers financial incentives to leave and weaken the 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: The worst violations occur in the export processing zones. The "maquila" companies operating in the zones feature strongly in the complaints received by the Ministry of Labour and various organisations. It is a very sensitive issue, as Free Trade Agreements (FTAs) try to encourage this type of activity and governments promote the zones in an attempt to alleviate unemployment.
Employers are fiercely hostile towards unions. Very few of the unions in the zones have real collective bargaining power, despite the fact that the Ministry of Labour has warned the companies in the zones that they are obliged to respect workers' rights, and that there would be an inspection of companies that prevented the formation of trade unions.
Relative progress in collective bargaining: A total of 56 new collective agreements have been registered, 20 more than the previous year, covering 106,880 workers.
FTA versus workers' rights: The government has not lived up to its promise of guaranteeing the respect of workers' rights in the FTA and improving the living and working conditions of Nicaraguans. Whilst the Ministry of Labour made a significant effort to increase the number of inspections and remove obstacles to the formation and registration of trade unions, complaints of violations of workers' rights have increased, with maquilas still responsible for the highest number of complaints and of workers affected.
Labour rights violated in the tourist industry: The tourist industry is one of the worst sectors for violating trade union and workers' rights. It is also a sector where there is a lot of sub-contracting and labour flexibility.
Multinationals continue their anti-union strategy: The CARSO Group bought the Nicaraguan Telecommunications Company, ENITEL, and introduced a policy of subcontracting with the creation of a satellite company (CORRELASA) through which new employees were hired on lower wages and benefits.
In mid-May 2008, CORRELASA workers formed a trade union and submitted a list of demands to the Ministry of Labour. ENITEL responded with mass dismissals in June, including of course the new trade union leaders and the signatories of the list of demands.
On 20 June the Ministry of Labour declared the "nullity and suspension of all acts violating trade union immunity" and ordered the reinstatement of the workers concerned within 24 hours. It also warned CORRELASA-ENITEL against taking any more illegal action.