Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Minimum Age Convention, 1973 (No. 138) - Nicaragua (Ratification: 1981)

The Committee notes the information provided by the Government in its reports in 2002 and 2003. It notes with interest that Nicaragua signed a Memorandum of Understanding (MOU) with ILO/IPEC on 15 May 2002 and that it has adopted Decree No. 43-2002 reorganizing the National Commission for the Progressive Elimination of Child Labour and the Protection of Young Persons at Work.

Article 2 of the Convention. 1. Scope of application. In its previous comments, the Committee noted that under the terms of section 130 of the Labour Code, children and young persons who perform productive activities or provide services in exchange for remuneration are considered to be "workers". Under the terms of section 1, the Labour Code governs labour relations between employers and workers. The Committee notes that by virtue of these provisions, the Labour Code does not apply to employment relations which are not derived from an employment contract such as work performed by children on their own account. While noting the information provided by the Government in its report in 2002, the Committee once again recalls that the Convention applies to all sectors of economic activity and that it covers all forms of employment or work, whether or not there is an employment contract and whether or not the work is remunerated. It therefore requests the Government to provide information on the manner in which the protection afforded by the Convention is secured for children exercising an economic activity that is not covered by an employment relationship, such as work on their own account.

2. Minimum age for admission to employment or work. The Committee notes with interest the adoption by the Ministry of Labour of the ministerial resolution respecting work in export processing zones, which prohibits the engagement of young persons under 14 years of age. It requests the Government to provide a copy of this resolution.

Article 3. 1. Determination of hazardous work. In its previous comments, the Committee noted that certain activities are not included in the types of work considered to be hazardous in section 133 of the Labour Code, and particularly the handling and manual transport of loads. In this respect, the Committee notes that under section 16 of the ministerial resolution on health and safety relating to the maximum weight that may be carried by a worker, of 22 February 2002, young persons under 18 years of age may not be engaged in the manual transport of a load (transporte manual de carga) which requires physical efforts, nor on work requiring psycho-physical efforts exceeding their capabilities.

2. Authorization to employ young persons as from the age of 16 years. In its previous comments, the Committee noted that section 66 of the ministerial resolution on health and safety at the workplace, of 24 November 2000, prohibits employers from allowing children under 16 years of age to work with pesticides. The Committee notes that under the terms of section 15 of the resolution of 22 February 2002, the manual transport of a load (manipulación manual) by young persons under 16 years of age is prohibited at the workplace, with the manual transport of a load meaning any operation involving the transport or holding of a load by one or more workers, such as lifting, placing, pushing, pulling and moving, which, by reason of its nature or inadequate ergonomic conditions, involves risks at work for the workers (section 1). The Committee notes that both section 66 of the ministerial resolution of 24 November 2000 and section 15 of the ministerial resolution of 22 February 2002 permit work by young persons in hazardous activities as from the age of 16 years. The Committee reminds the Government that under Article 3, paragraph 3, of the Convention, national laws or regulations may, after consultation with the organizations of employers and workers concerned, authorize the performance of hazardous types of work by young persons between the ages of 16 and 18 years on condition that the health, safety and morals of the young persons concerned are fully protected and that they have received adequate specific instruction or vocational training in the relevant branch of activity. It also recalls that this provision of the Convention consists of a limited exception to the general rule prohibiting the performance of hazardous types of work by young persons under 18 years of age, and not an overall authorization to perform hazardous work from the age of 16 years. The Committee therefore requests the Government to provide information on the measures adopted to ensure that the performance of hazardous types of work by young persons between 16 and 18 years of age is only authorized in accordance with the provisions of Article 3, paragraph 3, of the Convention.

Articles 7 and 8. Derogations to the general minimum age. 1. Light work. In its previous comments, the Committee noted that section 134 of the Labour Code establishes rights for children who work, but does not set out the conditions under which children under 14 years of age may perform light work, in accordance with Article 7 of the Convention. The Committee notes with interest the information provided by the Government in its report in 2002 according to which it is prohibited to employ children under 14 years of age and that, in practice, the elimination of work by children under 14 years of age is encouraged in various ways, including awareness-raising campaigns, training and inspection. The Committee also notes the Government’s intention to hold consultations with the social partners with a view to reforming Title IV of the Labour Code, with the objective of establishing rules governing light work by young persons between 14 and 18 years of age, and to submit this reform to the National Assembly. The Committee requests the Government to provide information on the reform of Title IV of the Labour Code, which it intends to undertake with a view to regulating light work by young persons.

2. Artistic performances. The Committee notes the information provided by the Government in its report in 2002 to the effect that the Directorate of the Labour Inspectorate for Children may issue work permits for young persons between 14 and 16 years of age who have obtained the agreement of their parents. The authorization procedure consists of submitting an application with certain documents attached, including the birth certificate and proof of school attendance, where appropriate. Employers have to comply with the special working hours of young persons, namely six hours a day and 30 hours a week. The Committee also notes the copies of permits provided by the Government with its report in 2002. However, it notes that these permits are not related to artistic performances, but to work by young persons in the catering sector. In this respect, it recalls that Article 8 of the Convention provides for the possibility of granting, in derogation of the minimum age for admission to employment or work, permits in individual cases for participation in activities such as artistic performances. The Committee requests the Government to indicate whether the national legislation provides for such permits and, if so, to provide information on the procedure followed by the labour inspectorate to issue them.

Article 9. Registers to be kept by the employer. In its previous comments, the Committee noted that section 17(1) of the Labour Code, which places the obligation upon employers to keep registers and files as prescribed by the Ministry of Labour, does not establish the obligation to include the age of the worker in the register. The Committee notes the information provided by the Government that it is compulsory for all employers in Nicaragua to keep a personal record for each employee, which must include the birth certificate of persons working for the employer and that, where documents are missing from the personal record, the labour inspectors take the necessary measures to obtain them during inspections.

Part V of the report form. The Committee notes the information provided by the Government in its report in 2002 that a legal analysis of the Nicaraguan legislation on child labour has been prepared and submitted to various commissions and deputies in the National Assembly, which could serve as a basis for possible reforms of the child labour provisions in the Labour Code. The Committee requests the Government to provide the results of this analysis. The Committee also notes the statistics on the employment of children provided by the Government. As the Committee noted in its previous comments, these statistics show that the majority of children who work are employed in the agricultural sector and are under 18 years of age. In its report in 2002, the Government indicates that, in most work centres, employers take measures so that young persons under 18 years of age are not engaged in activities exposing them to chemical, physical and biological pollutants (see section 78 of the ministerial resolution of 24 November 2000) and that, where labour inspectors find violations of the labour legislation respecting child labour, penalties or fines are imposed. The Committee requests the Government to continue providing information on the application of the Convention in practice, including, for example, statistics on the employment of children and young persons, extracts from the reports of the inspection services and information on the number and nature of the contraventions reported.

The Committee requests the Government to keep it informed of progress made in enacting or amending the legislation. In this regard, it reminds the Government that it may avail itself of ILO technical assistance to bring its legislation into conformity with the Convention.