Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Maternity Protection Convention, 1919 (No. 3) - Nicaragua (Ratification: 1934)

Article 3 paragraph c of the Convention. Coverage for cash and medical benefits. With reference to its previous comments, the Committee notes the detailed legal and statistical information provided by the Government regarding the functioning of the social security scheme, in particular the provision of maternity benefits, per province, both in cash and in kind. The Committee notes a significant increase in the number of affiliates to the social security scheme. The National Social Security Institute (INSS) registered 476,100 direct members in December 2007, compared to 316,400 in December 2000. The social security scheme covered 78.8 per cent of workers in December 2007. The Committee asks the Government to continue to provide information on the measures taken by the Government to further extend coverage of maternity benefits, in particular to women workers in the rural regions.

Article 3 paragraph c. Cash benefits. According to sections 88 and 89 of Law No. 539 on Social Security of 20 January 2007, maternity cash benefits amount to 60 per cent of the average weekly wage in the last eight weeks, 60 per cent of which shall be paid by the INSS and the remaining 40 per cent shall be paid by the employer. However, the Government states in its report that maternity cash benefits represents 100 per cent of previous earnings. Please clarify whether the replacement rate of the social security maternity cash benefit is equal to 100 per cent or 60 per cent of previous earnings.

Article 3 paragraph d. Nursing breaks. In reply to the Committee’s previous comments that a 15-minute break every three hours for breastfeeding as provided for by 143(2) of the Labour Code is insufficient, the Government indicates that 15-minute nursing breaks are rarely used in practice and that collective agreements have extended the duration of nursing breaks and included the possibility to reduce working hours instead. In the light of this practice, the Committee would like the Government to consider the possibility of amending section 143 of the Labour Code in order to ensure that all breastfeeding women, also those not covered by a collective agreement, have at least the right to half an hour twice a day to nurse their child

Article 4. Employment protection. Section 74 of the Constitution of Nicaragua provides special protection to pregnant women stating that nobody can deny employment to pregnant women or fire them during pregnancy or the postnatal period. This provision is implemented by section 144 of the Labour Code, which stipulates that female employees who are pregnant or who have taken maternity leave may not be dismissed, unless due cause has previously been established by the Ministry of Labour. With respect to the Convention’s requirement that it is unlawful for an employer to dismiss a woman for any reason whatsoever while she is on maternity leave, the Government explains that section 144 of the Labour Code is rendered inoperative during maternity leave, as the labour contract is suspended by virtue of section 37 of the Labour Code while a women is on prenatal and postnatal leave. It confirms that the labour inspectorate in such cases has declared the application for dismissal inadmissible. In case of doubt or conflict as regards the application or interpretation of labour laws, Principle VIII of the Labour Code is applied, which establishes that the provision most favourable to the employee prevails. The Committee takes note of the explanations provided by the Government.