Hours of Work (Commerce and Offices) Convention, 1930 (No. 30) - Nicaragua (RATIFICATION: 1934)

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In order to provide an overview of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work in industry) and 30 (hours of work in commerce and offices) in the same comment.

Article 2(b) of Convention No. 1 and Article 4 of Convention No. 30. Variable distribution of hours of work throughout the week. In relation to its previous comments, the Committee notes the Government’s indications in its reports that: (i) in the 2018–21 period, more than 50,000 labour inspections were carried out and 1,092 internal regulations were authorized, in order to ensure compliance with the relevant labour legislation in force; (ii) section 63(3) of the Labour Code provides that, by mutual agreement, the eight hours of actual daily work may be distributed in discontinuous periods, with the aim of providing workers with a day or part of a day as rest in addition to the seventh-day rest prescribed in section 64 of the Code; and (iii) if the parties agree to distribute weekly hours of work into longer working days, the working day agreed upon shall guarantee workers the right to enjoy their daily and weekly rest, in accordance with the provisions of the national legislation. The Committee notes that, in the event of variable distribution of hours of work throughout the week, section 63(2) of the Labour Code prescribes a daily limit on hours of work higher than that established in Article 2(b) of Convention No. 1. The Committee also recalls the Government’s indication that Judgment No. 1748 of 24 October 2012 of the Constitutional Division of the Supreme Court – which established that employers and workers can agree on a “four-by-four” work-week (that is, fours days of work followed by four days of rest), provided that the working week does not exceed 48 hours – has been considered as generally applicable (erga omnes), and so the Ministry of Labour must comply with it and respect the cases in which workers and employers agree to work according to this arrangement. In this regard, the Committee notes that, in authorizing the compressed work-week, the above-mentioned judgment does not establish daily limits on working hours, as required by both Conventions (one hour in excess of the normal eight hours, under Convention No. 1, and two hours in excess of the normal eight hours, under Convention No. 30). The Committee therefore requests the Government to indicate the manner in which it is ensured that the agreements concluded between employers and workers on the variable distribution of hours of work throughout the week are in strict conformity with the daily limits established in Article 2(b) of Convention No. 1 and Article 4 of Convention No. 30. The Committee also requests the Government to provide information on the above-mentioned agreements, where they exist, including the number of agreements and the maximum daily and weekly hours of work fixed by them.

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In order to provide an overview of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work in industry) and 30 (hours of work in commerce and offices) in the same comment.

Articles 3 and 6(1)(b) of Convention No. 1 and Article 7(2) of Convention No. 30. Exceptions to the limit on hours of work. In relation to its previous comment, the Committee notes that the Government does not provide any information in its report on section 57 of the Labour Code, which provides that work done outside normal working hours constitutes additional hours (overtime) but work done to rectify errors that can be attributed to the worker does not. The Committee recalls that the Conventions in question only allow exceptions to the limit on working hours: in case of accident, actual or threatened, force majeure, or urgent work to machinery or plant; in order to prevent the loss of perishable goods or avoid endangering the technical results of the work; in order to allow for special work such as stocktaking and the preparation of balance sheets, settlement days, liquidations, and the balancing and closing of accounts; and in order to deal with cases of abnormal pressure of work. The Committee therefore urges the Government to take the necessary steps to ensure that the above-mentioned section is amended, in order to guarantee that the national legislation only allows the limits on daily and weekly hours of work to be exceeded in the circumstances specified in the Conventions, and to provide information on the measures taken in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

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Article 4 of the Convention. Compressed work week. The Committee refers to the comments it made on this subject in the direct request published in 2014 regarding the Hours of Work (Industry) Convention, 1919 (No. 1).

Article 7(1)(a). Intermittent work. In its previous comments, the Committee noted that, under section 61(c) of the Labour Code, persons who carry out work that is intermittent or which requires only their physical presence, as defined by the Ministry of Labour in each specific case, are not subject to the limitations imposed by the Labour Code in respect of hours of work. The Committee notes that the Government’s report received in September 2013 does not contain new information in this regard. The Committee once again requests the Government to indicate whether the Ministry of Labour has issued regulations under this provision of the Convention and, if so, to provide a copy. If the determination of intermittent work is indeed made on a case by case basis, the Government is requested to indicate the criteria used for this purpose and to provide practical examples.

Article 7(2). Additional hours. The Committee refers to the comments it made on this subject in the direct request published in 2014 regarding Convention No. 1.

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Articles 3 and 11 of the Convention. Limits on daily and weekly hours of work – Adequate inspection. The Committee notes the Government’s reply to the comments made by the Trade Union Unification Confederation (CUS) alleging extensive practices of workers being obliged to perform additional hours of work without remuneration and also denouncing the Government’s failure to monitor or control working time violations. In its response, the Government indicates that whenever workers are found to work in excess of the normal eight-hour daily limit, labour inspection services are instructed to verify that any additional hours of work are performed on a voluntary basis, that extra hours are fully paid at the overtime rate, and that any infringement of the relevant provisions of the Labour Code is properly sanctioned in accordance with the Labour Inspection Act No. 664 of 2008. The Government also refers to the Technical Guide on Inspection (Ministerial Agreement JCHG-003-08) that establishes a checklist to facilitate inspectors in ensuring compliance with the labour legislation, especially as regards hours of work and payment of wages. While noting these explanations, the Committee asks the Government to provide more detailed information on: (i) inspection results – including any relevant statistics – showing the number and nature of infringements of the working time legislation and the sanctions imposed; and (ii) any studies or inquiries undertaken in “call centres”, in response to the allegations that workers are constrained to work more than eight hours a day without being paid overtime in exchange of employment stability, and the results obtained.

In addition, the Committee notes the Government’s reference to the situation of an enterprise established in an export processing zone which operates a compressed working time arrangement of four consecutive 12-hour working days followed by four consecutive days of rest. The Government has concluded that such arrangement was irregular and requested remedial action but the enterprise concerned has challenged the Government’s decision as unconstitutional before the Supreme Court. The Committee wishes to refer, in this regard, to paragraphs 207–213 of its 2005 General Survey on hours of work in which it took the view that special attention would have to be paid to ensure that the implementation of compressed work-week arrangements complies with standards prescribed by Convention No. 30 and also that in order to be compatible with Convention No. 30, compressed work-weeks in commerce and offices should ensure that the daily working day does not exceed ten hours, as required under Article 4 of the Convention. The Committee requests the Government to keep the Office informed of any further developments in this regard and to transmit a copy of the Supreme Court decision once it is published. Finally, the Committee would appreciate receiving the Government’s response to the points raised in an earlier comment concerning the application of Article 7(1) (persons who carry out types of work that are intermittent or which require only their physical presence) and Article 7(2) (additional hours performed by workers to repair errors attributable to them).

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Article 3 of the Convention. Limits on daily and weekly hours of work. The Committee notes the comments of the Trade Union Unification Confederation (CUS) dated 30 August 2011 alleging that the Ministry of Labour does not monitor or control working time violations and that in the interest of preserving their employment workers in most commerce and offices are obliged to work more than eight hours per day and 48 hours per week. In particular, the CUS denounces the situation in “call centres” where workers are asked to work more than eight hours a day, without being paid overtime in exchange of employment stability. The Committee requests the Government to transmit any comments it may wish to make in response to the observations of CUS.

Moreover, the Committee draws the Government’s attention to the conclusions of the ILO Tripartite Meeting of Experts on Working Time Arrangements, held in October 2011, according to which the provisions of existing ILO standards relating to daily and weekly hours of work, weekly rest, paid annual leave, part-time and night work, remain relevant in the twenty-first century, and should be promoted in order to facilitate decent work. The Experts also emphasized the importance of working time, its regulation, and organization and management, to: (a) workers and their health and well-being, including opportunities for balancing working and non-work time; (b) the productivity and competitiveness of enterprises; and (c) effective responses to economic and labour market crises.

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Article 1 of the Convention. Scope of application. The Committee notes that under the terms of section 61(f) of the Labour Code, its provisions relating to hours of work are not applicable to workers who are not covered by such rules by reason of the nature of the work that they perform. It requests the Government to indicate the types of work covered by this exclusion.

Article 7, paragraph 1(a). Intermittent work. The Committee notes that under section 61(c) of the Labour Code, persons who carry out types of work that are intermittent or which require only their physical presence, as defined by the Ministry of Labour in each specific case, are not subject to the limitations imposed by the Labour Code in respect of hours of work. It requests the Government to indicate whether the Ministry of Labour has issued regulations under this provision and, if so, to provide a copy. If the determination of intermittent work is indeed made on a case by case basis, the Government is requested to indicate the criteria used for this purpose and to provide practical examples.

Article 7, paragraphs 2 and 3. Additional hours. The Committee notes that under section 57 of the Labour Code additional hours performed by workers to repair errors attributable to them are not considered to be additional hours and are not therefore subject to the limits determined by the Labour Code, and do not benefit from a higher rate of pay. It draws the Government’s attention to the fact that the repair work in connection with errors attributable to a worker is not included in the cases in which the Convention allows the normal limits for hours for work, which are set at eight hours in the day and 48 hours in the week, to be exceeded. It hopes that the Government will take the necessary measures to amend the legislation so as to comply with the requirements of the Convention on this matter.

The Committee further notes that section 59 of the Labour Code provides that workers may not be required to perform additional hours, except in a certain number of cases, such as the prevention or elimination of the consequences of catastrophes or accidents likely to prejudice production or the provision of services. It recalls that the Convention imposes limitations on the performance of additional hours, irrespective of whether or not workers have given their consent in this respect. In addition to the cases envisaged by section 59 of the Labour Code, the performance of additional hours in the context of temporary exceptions is allowed, in accordance with Article 7, paragraph 2, of the Convention, in order to prevent the loss of perishable goods or avoid endangering the technical results of the work, to allow for special work such as stocktaking and the preparation of balance sheets, or to enable establishments to deal with cases of abnormal pressure of work due to special circumstances, in so far as the employer cannot ordinarily be expected to resort to other measures. The Committee hopes that the Government will adopt legal provisions explicitly providing that the performance of additional hours, whether or not it is voluntary, is only authorized in the cases set out in the Convention.

The Committee also notes that section 60 of the Labour Code regulates the performance of a double shift by a worker in the event of the unforeseen absence of other employees where the work cannot be interrupted. It requests the Government to provide particulars on the types of work which are recognized as being impossible to interrupt.

Part V of the report form. The Committee requests the Government to provide a general appreciation of the manner in which the Convention is applied in practice including, for instance, extracts from the reports of the inspection services indicating the number and nature of the violations reported, and information on the number of workers covered by the legislation respecting hours of work.

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With reference to its observation of 1993, the Committee notes with interest the information provided in the Government's report on the measures taken to give effect to the provisions of the Convention. In particular it notes that Act No. 185 of 30 October 1996 has brought a certain number of amendments to the Labour Code, including the fixing of a limit of three hours in the day and nine hours in the week of overtime hours (section 58), which represents real progress in the application of Articles 7, paragraphs 2 and 3, and 8 of the Convention. It also notes the detailed information supplied by the Government as requested in Part V of the report form and requests it to continue to supply such information which allow the Committee to appreciate more fully the manner in which effect is given to the provisions of the Convention in practice.

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See under Convention No. 1: as follows:

The Committee notes with regret that the Government's report contains no information.

Further to the comments it has been making for many years, the Committee recalls that any amendments to the legislation should determine, after consultation with the employers' and workers' organizations, the circumstances in which additional hours may be worked and the maximum number of additional hours authorized, in conformity with Article 6, paragraphs 1(b) and 2, of this Convention, and Article 7, paragraphs 2(c), 2(d) and 3, and Article 8 of the Hours of Work (Commerce and Offices) Convention (No. 30), 1930.

It also asks the Government to provide information in its next report on the manner in which the Convention is applied providing, for example, as required by point VI of the report form, extracts from reports of the inspection services and particulars of the number of additional hours worked in the cases provided for in the Convention, together with any other useful information.

It asks the Government to keep it informed of any developments in this respect.

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The Committee notes with regret that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee has noted the information provided by the Government in its report, which, in particular, indicates that a preliminary draft revision of the legislation was under consideration on the basis of the comments of the Committee. The Committee trusts that the draft will be adopted in the near future and that it will lay down, after consultation with the employers' and workers' organisations concerned, the circumstances in which additional hours may be worked and the maximum number of additional hours authorised, in conformity with Article 7, paragraphs 2(c), (d) and 3 and Article 8 of the Convention. The Committee requests the Government to provide in its next report detailed information on any developments in relation to this question.