Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Nicaragua (Ratification: 1967)

Civil Service and Administrative Careers Act. The Committee notes the Government’s indication that under the Civil Service and Administrative Careers Act the job classification system has been implemented gradually in 49 institutions and implementation is planned in another four institutions. This system comprises three processes: description of the job, grading of the job and classification into functional families and specimen jobs. The Committee also notes the statistics on the numbers of men and women employed in the civil service and observes that women greatly outnumber men in executive departments (35,260 women and 13,709 men). The Committee requests the Government to send information on the reasons for this disparity and to continue to supply information on the implementation of the job classification system, and its impact on the distribution of men and women in the public service. The Committee also requests the Government to indicate the manner in which equality of opportunity and treatment in employment and occupation is ensured, without any discrimination on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, and to send information on cases of discrimination on the aforementioned grounds which have been brought before the Civil Service Appeals Commission and the decisions issued in this respect.

Policies to promote gender equality. The Committee notes that under the Equal Rights and Opportunities Act (No. 648 of 12 March 2008), action for the advancement and training of women in various sectors has been undertaken. Various government institutions are also being supported in the implementation of programmes aimed at women in urban and rural sectors with a view to technical training and the development of small enterprises. The Government adds that the regulations implementing Act No. 648 (Decree No. 29-2010 of 16 June 2010) establish that the Nicaraguan Institute for Women (INIM) will monitor the implementation of the Act. INIM has assumed the role of coordination for equality policies. The Committee notes the gender indicators used by the Government to determine the situation of women and men who have received training and been integrated into the labour market. The Government also indicates that the “Programme for the promotion of gender equity and the elimination of violence” (currently entitled “Technical cooperation programme: sustainable social responses for the elimination of gender-based violence”), formulated by INIM, comprises two separate programmes aimed at eliminating gender-based violence and ensuring citizens’ safety. The Committee requests the Government to provide the following information:

• (i) the impact of the Equal Rights and Opportunities Act on the promotion of equal treatment for men and women in employment and occupation disaggregated by sex;
• (ii) the tasks performed by INIM in its function as coordinator of equality policies and their impact in practice; and
• (iii) the activities undertaken in the context of the “Technical cooperation programme: sustainable social responses for the elimination of gender-based violence”, and the use of gender indicators in the formulation of public policies for equality in employment and occupation and their impact.

Policy for equality of access to work and better employment opportunities. The Committee notes the Government’s indication that the Inter-Institutional Network for Equality and Non-Discrimination in Employment, which was set up in June 2008 and brings together 29 institutions and organizations, takes action to promote awareness of the tasks performed by these institutions and organizations and to share information and experiences. The network also participates in forums and fairs on various subjects such as HIV and AIDS or domestic work and makes use of these occasions to influence the integration of persons with disabilities in the labour market. With regard to pregnancy testing, the Committee notes that pursuant to Ministerial Agreement No. JCHG-005-05-07, it is prohibited to require women applying for jobs to take a pregnancy test or to make them undergo such a test without their consent in the course of employment. The agreement also prohibits any examination without prior authorization by the worker, male or female. The Government these practices thus promote the elimination of discrimination in employment. The Committee requests the Government to provide information on the impact of Ministerial Agreement No. JCHG-005-05-07 on the elimination of the requirement to take a pregnancy or HIV and AIDS test and also on the progress made regarding the protection and promotion of equality of treatment and opportunity for pregnant women, persons with disabilities and persons living with HIV and AIDS. The Committee also requests the Government to provide information on the measures taken in the context of the national employment policy adopted in 2006 and their impact.

Sexual harassment. The Committee observes that the national employment policy adopted by the Government in 2006 provides for the establishment of effective mechanisms to ensure that women workers receive due consideration and respect for their dignity, integrity and freedom in the workplace, preventing and penalizing any form of physical or verbal abuse, harassment, blackmail or psychological or sexual aggression, and also any other acts or omissions detrimental to the dignity of women workers. In its previous comments the Committee asked the Government to provide information on the measures taken and the mechanisms established to ensure that workplaces are free from sexual harassment. The Committee notes the Government’s indication that: (1) section 174 of the Penal Code makes any person found guilty of sexual harassment liable to imprisonment of one to three years; (2) section 17 of the Labour Code obliges the employer to refrain from abuse and from undermining the dignity or respectability of workers and also to ensure that workers are not exposed to sexual harassment or blackmail: (3) section 18 prohibits workers from subjecting colleagues to sexual harassment; and (4) any worker who commits sexual harassment may be dismissed on grounds of serious misconduct under section 48 of the Labour Code, in accordance with the labour administrative proceedings, and employers are subject to the General Labour Inspection Act. The Committee observes that the aforementioned provisions do not explicitly cover the two constituent forms of sexual harassment, namely: (1) quid pro quo sexual harassment; and (2) hostile working environment sexual harassment. The provisions also do not clearly establish the scope of liability of workers, employers and supervisors in cases of proven sexual harassment. Referring also to its general observation of 2002, the Committee reminds the Government that sexual harassment in the workplace undermines the dignity and well-being of workers, impairs the productivity of the enterprise and weakens the foundations of the working relationship. The Committee requests the Government to take the necessary measures to amend the Labour Code so that the provisions relating to sexual harassment expressly cover both quid pro quo sexual harassment and hostile working environment sexual harassment and adequate penalties are imposed on anyone guilty of such harassment, whether employer or worker. The Committee also requests the Government to send information on any complaints regarding sexual harassment submitted to the labour inspectorate and also any administrative or judicial decisions issued in this respect.

Export processing zones. The Committee notes the Government’s indication that the Export Processing Zone (EPZ) Tripartite Labour Commission, composed of representatives of employers’ and workers’ organizations and the Ministry of Labour, signed an agreement on 20 January 2010 with a view to promoting social policies for the comprehensive development of workers in the sector in the context of decent work. The Government adds that the EPZs employ 74,726 workers, of which 41,000 are women. The Committee requests the Government to provide information on the specific measures taken in the context of the agreement signed on 20 January 2010 by the EPZ Tripartite Labour Commission to promote equality of opportunity and treatment in the export processing zones and their impact in practice.

Indigenous peoples and ethnic communities. The Committee notes with interest the ratification on 25 August 2010 of the Indigenous and Tribal Peoples Convention, 1989 (No. 169). The Committee also notes the measures for systematizing and approving communal and territorial land ownership adopted by the Government between 2007 and 2010 pursuant to Act No. 445 concerning the demarcation of and granting of title to indigenous lands. The measures benefited a total of 214 communities (including those of the Mayangna and Miskito peoples and people of African descent), comprising 103,790 persons. The total surface area of lands in respect of which ownership title has been granted is approximately 22,479 square kilometres. The Government indicates that it is planned to conclude the process of granting ownership title in respect of all lands claimed by indigenous peoples and communities of people of Afro-descendent on the Atlantic coast in 2011. The Government also indicates that, with the object of promoting equality of opportunity and treatment for indigenous peoples and communities of people of African descent, two draft laws are being discussed: the Bill on decent and fair treatment for indigenous peoples and communities of people of African descent and the Bill concerning indigenous peoples of the Pacific Coast, Centre and North of Nicaragua. The Committee requests the Government to continue to supply information on the process of granting ownership title in respect of indigenous lands and also on any developments with regard to the abovementioned draft laws. The Committee also requests the Government to supply information on any other measures taken to promote and guarantee equality of opportunity and treatment in employment and occupation for indigenous peoples and communities of people of African descent, especially to tackle obstacles affecting access to employment for indigenous peoples identified by the National Employment Plan. In addition, the Committee requests the Government to send information on the following:

• (i) the impact of the Plan for the Development of the Caribbean Coast of Nicaragua (NICARIBE) on education, health, access to credit, land, and employment and occupation of indigenous peoples;
• (ii) statistics on school attendance levels for indigenous peoples, their situation in employment and occupation and their income, compared with those of the non-indigenous population.

Cooperation with employers’ and workers’ organizations. While noting the cooperation existing in the export processing zones, which resulted in the agreement signed by the Export Processing Zone Tripartite Labour Commission, mentioned above, the Committee notes that the Government has not sent any information on such cooperation at the national level. The Committee again requests the Government to provide information on cooperation with the social partners in the promotion of equality, particularly with regard to the adoption of measures against sexual harassment in the workplace.

Awareness raising and labour inspection. The Committee notes the Government’s statement that the inspection service of the Ministry of Labour trains employers and workers in labour rights, and that this has improved access for individuals to justice in the field of labour and also the protection of women workers’ rights. Accordingly, pay equality has been established for 12,804 women workers who were earning less than the minimum wage, and the use of prior pregnancy and HIV and AIDS tests is being monitored. The Committee requests the Government to continue to provide information on awareness-raising measures implemented in conjunction with the labour inspectorate and their impact in terms of reducing gender-based discrimination and promoting equality. The Committee also requests the Government to include information on all the measures taken with respect to discrimination in employment and occupation based on the other grounds covered by the Convention (race, colour, religion, political opinion, national extraction or social origin) and also on complaints made and penalties imposed for violations of the provisions concerning equality and non discrimination.