2012 Annual Survey of Violations of Trade Union Rights - Nicaragua

Population: 5,788,000
Capital: Managua

ILO Core Conventions Ratified:

29 (Forced Labour (1930))
87 (Freedom of Association and Protection of the Right to Organise (1948))
98 (Right to Organise and Collective Bargaining (1949))
100 (Equal Remuneration for Work of Equal Value (1951))
105 (Abolition of Forced Labour (1957))
111 (Discrimination in Employment and Occupation (1958))
138 (Minimum Age for Employment (1973))
182 (Worst Forms of Child Labour Convention (1999))

Reported Violations – 2012

Imprisonments: 30
Dismissals: 853

Documented violations – actual number of cases may be higher

Introduction

Dismissals for organising, outsourcing, and restrictions on collective bargaining rights, together with practices akin to forced labour were the principal violations during the year. There were unfair dismissals, including those at the state enterprise ENACAL, and violations of the freedom of association of workers at the daily newspaper La Prensa, amongst others.

Background

Nicaraguan President Daniel Ortega was re-elected on 6 November after winning 66.43% of the vote and was due to officially begin his second consecutive five year term on 10 January 2012. The Nicaraguan government opted in favour of a second consecutive mandate after the Sandinista magistrates in the Supreme Court of Justice declared the constitutional provision prohibiting immediate re-election inapplicable.

Trade union rights in law

Although basic trade union rights are guaranteed, some problematic areas exist in the law. Workers have the right to form and join the trade union of their choice, as well as to bargain collectively. While union leaders have protected status, this is limited to nine executive members per union and three branch members. The Labour Code also allows the employer to dismiss any employee, including union organisers, provided that they have the permission of the Ministry of Labour and pay double the usual severance pay. The fines for interfering in trade union affairs are not sufficiently dissuasive.

Furthermore, while the right to strike is recognised in the Constitution, a trade union must receive the approval of the Ministry of Labour before engaging in strike action. Also, to be considered officially approved, a strike must have the support of at least 50% plus one of the members of the trade union, voting in an extraordinary general meeting. Finally, the Labour Code provides for compulsory arbitration of a dispute where 30 days have elapsed since the calling of a strike.

Link to additional detailed information regarding the legislation on the ITUC website here

In practice

Lack of justice:

The Constitutional Chamber of the Supreme Court of Justice often does not rule in favour of fundamental rights when appeals are lodged by trade union leaders and workers.

There has been significant progress, on the other hand, in terms of social dialogue in the export processing zones. The National Labour Council has been established and efforts have been made to approve a Procedural Labour Code which will expedite procedures, and to establish a Higher Labour Court.

Restrictions on collective bargaining rights: The Ministry of Education (MINED) has refused to allow the National Teachers' Confederation of Nicaragua (CNMN) to take part in the collective bargaining process to guarantee better social benefits and ensure the respect of the social rights contained in collective agreements.

Forced labour practices:

In many workplaces, employers take advantage of the employment deficit in the country to demand that employees work longer than eight hours a day, in order to cover production quotas and meet international commitments.

Domestic workers work more than eight hours a day without being paid the legal minimum wage, or overtime or for working on public holidays, in exchange for their job security and accommodation.

Health workers face a similar situation, as public hospitals demand that they work more than an eight hour day without paying them for the overtime.

Call centre employees also work more than eight hours a day without being paid for overtime or working on public holidays, in exchange for their job security.

Unfair dismissals for exercising the right to organise in public enterprises: Several call centre companies dismiss workers who try to set up trade unions. The Ministry of Labour (MITRAB) is aware of what happens but has not provided protection for the workers and trade unions in the cases referred to it, despite this practice being common knowledge, resulting in nascent trade unions in the private sector being left leaderless.

Outsourcing undermining trade union rights:

Outsourcing has had an enormous impact, and led representatives of several trade union organisations as well as members of the National Assembly to put forward a bill aimed at regulating the practice, which was debated at the "Tri-partite Forum on Outsourcing". Workers lose their rights to social security, collective bargaining, to organise, to a decent pension, because of outsourcing. At least 800,000 workers are employed as contract labour in Nicaragua, principally in agriculture, construction, hotels and restaurants.

According to Marcial Cabrera, General Secretary of the United Federation of Food, Agro-Industry, Tourism, Service, Commercial and Allied Workers of Nicaragua (FUTATSCON), outsourcing continues to be a common method of hiring staff. It undermines workers' minimum guarantees, which in turn leads to the violation of their fundamental rights. Nicaraguan workers suffer the consequences, reflected above all in low wages, appalling working conditions, a lack of social benefits and the denial of their trade union rights.

Workers' rights violated in public sector: Unionised workers in the public sector witnessed a multitude of abusive practices by the authorities such as reprisals, discrimination, unfair dismissals, illegal suspensions, illegal contracts with mega salaries, the creation of new illegal posts, illegal promotions, arbitrary transfers and disregard for administrative and judicial decisions.

Violations

Repression and detention of workers at the state enterprise ENACAL:

On 1 February 2011, at least 30 workers from the Nicaraguan Aqueducts and Sewers Company (ENACAL) were forcibly removed from the state-owned company by anti-riot agents from the National Police's Special Brigade, supposedly for refusing to accept changes to staff assignments made without any prior communication or consultation.

The staff concerned complained about their arbitrary detention to the Nicaraguan Centre for Human Rights (CENIDH). On 2 February, the CENIDH contacted officials and department heads from the Legal Assistance Service, who confirmed the detention of the workers, without allowing the CENIDH access to ascertain the conditions and legal situation of the detainees. ENACAL's head of communications, Maritza Tellería, said that it concerned 30 employees who worked as security guards who had refused to relocate, and given that water supply is a matter of national security, the company decided to call in the police.

Workers dismissed by daily paper La Prensa for organising a union: At the end of 2010 the owners of the daily paper La Prensa unfairly dismissed 23 workers. After a six month fight for their reinstatement, with all the proof in their favour, and given that the enterprise had ignored the Ministry of Labour (MITRAB) order to reinstate them, they stationed themselves outside the offices of the Organisation of American States (OAS) to denounce the violation of their labour rights and the newspaper owners' attitude.

Violation of trade union rights and protection:

The Ministry of Transport and Infrastructure (MTI) dismissed and suspended leaders of the Democratic Federation of Public Service Workers (FEDETASEP), violating their right to protection from dismissal and to carry out their trade union activities. They were not allowed to enter the public institution in order to defend their members, the social benefits foreseen in their collective agreement were not respected, or their job security or human rights.

All the members of the Executive Board of the Granada Town Hall Municipal Workers' Union (SINTRANGRANADA-UNE) were dismissed. A court ruled that they should be reinstated but that decision had not been complied with by the end of the year.

The Members of the Executive Board of the Teachers' and Administrative Workers' Union (SINTRADOC) were dismissed at the headquarters of the Ministry of Education (MINED), ignoring their protection from dismissal as trade union representatives.

Many leaders of the Juan Flores Viva Union, affiliated to the Health Workers' Federation (FETSALUD) at the Medical Supplies Centre (CIS) of the Health Ministry (MINSA) were dismissed, ignoring their protection from dismissal as trade union representatives and their trade union rights.

The Trade Union Associations Department of the Ministry of Labour (MITRAB) refused to register the new Executive Committee (for 2011-2013) of the Democratic Federation of Public Service Workers (FEDETRASEP) affiliated to the Confederation of Trade Union Unification (CUS), without giving the legal grounds for its decision, violating the protection of the right to organise.

The 800 workers of the General Revenue Department (DGI) were unfairly dismissed, in breach of their freedom of association, with a view to destroying the Public Employees Union of the DGI-Grenada (SEPGRA-DGI). At the end of the year, the majority of these workers and trade union leaders had not yet received the social benefits due to them for their years of service.