Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Civil Service and Administrative Careers Act. The Committee notes that according to the Government, the Civil Service and Administrative Careers Act lays down guarantees whereby admission, training and promotion in the public administration is open to all persons equally without discrimination and that this has facilitated the professionalization of administrative careers. The Government adds that 42 per cent of public servants are men and 58 per cent women, and that measures have been taken to improve both access to employment and remuneration in the public service. Furthermore, the job classification system provided for in the Act has already been implemented in 56 state institutions. The Government also reports that the Civil Service Appeals Committee has examined 479 cases since 2007. The Committee nonetheless observes that the Government provides no information on how the job classification system is implemented, nor does it specify how many of the cases examined by the Civil Service Appeals Committee concerned complaints for discrimination. The Committee requests the Government to provide examples of how the job classification system is implemented in practice and to report on its impact on the distribution of men and women in the public service, supplying relevant statistical information. Please also provide information on the number of complaints of discrimination filed with the Civil Service Appeals Committee, the grounds cited and the decisions handed down.

Policies to promote gender equality. The Committee notes the information provided by the Government on the educational activities concerning the Equal Rights and Opportunities Act, No. 648, carried out by the Nicaraguan Institute for Women (INIM) at municipal and regional levels. The INIM has also been engaged in coordinating equality policies and evaluating their practical effects; the activities involved include 15 diagnoses of women’s status at work in 15 municipalities and nine government institutions, the development of 13 strategies with the participation of 287 women in various municipalities with a view to incorporating women in paid activities, the preparation of a regional policy for the North Atlantic Autonomous Region and eight municipal policies, the preparation and publication of documentation and provision of material support for women to set up in business. The Government also provides information on activities conducted under the Technical Cooperation Programme “Sustainable social responses for the eradication of gender violence” and on the use of gender indicators in applying policies on equality in employment and occupation, in the course of which a gender equality baseline survey was conducted covering Nicaraguan women in 24 municipalities. The survey enabled the INIM to work on the issue of access to employment, organize meetings to evaluate the results and to explore solutions with civil society institutions. The Committee also notes the statistical information on newly created jobs, which benefited 18,400 men and 11,508 women. According to the statistics, the unemployment rate was 6.2 per cent in 2011 (5 per cent for men and 6.9 per cent for women). The Committee requests the Government to continue to provide information on the impact of the measures taken in the public sector and the private sector with a view to achieving gender equality, and to indicate the role of workers’ and employers’ organizations in these activities. It also asks the Government to continue to provide statistical information on the participation of men and women in the labour market and on specific measures taken to secure full equality for men and women in access to employment.

Non-discrimination and equal opportunities for women. The Committee notes that according to the Government, the wages of 29,879 women that were lower than the minimum wage have been raised to the statutory minimum; 54 collective agreements containing special clauses have been concluded and are benefiting 19,190 women; the observance and implementation of gender equality is being promoted through an inter-institutional network in which 29 state institutions participate, and 3,560 women workers have received training on rights at work. The Committee also notes the measures taken to integrate young people in the labour market. The Committee recalls that in its previous comments it noted the adoption of Ministerial Agreement No. JCHG-005-05-07 and asked the Government to provide information on its impact in terms of eliminating the pregnancy testing requirement and protecting and promoting equality of treatment and opportunity for pregnant women, persons with disabilities and persons living with HIV and AIDS. The Committee notes that as a result of the Ministerial Agreement, the National Assembly decided to include a provision in the Comprehensive Act Against Violence Towards Women (No. 779, February 2012) stipulating that “anyone who prevents or restricts the exercise of women’s right to work by establishing requirements pertaining to sex, age, physical appearance, marital status, motherhood status, laboratory analyses, HIV testing or pregnancy testing, or who obstructs or imposes conditions on women’s access, wages, promotion or stability in employment shall be punished with a fine of from 100 to 300 days’ salary. Where the offence arises from the employment policy of a public or private institution, the maximum penalty shall be applied to the person exercising the discrimination.” The Committee observes that this protection applies only to women and that men are not protected against mandatory HIV testing. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that men as well as women are protected against HIV testing as a requirement for access to employment. The Committee also asks the Government to provide information on the measures taken in connection with the other grounds of discrimination set forth in Article 1(1)(a) of the Convention, namely race, colour, religion, political opinion, national extraction and social status.

Sexual harassment. In its previous comments, the Committee referred to the need to amend the Labour Code so that the provisions relating to sexual harassment expressly cover both quid pro quo and hostile working environment sexual harassment and establish adequate penalties for the offenders, whether they are employers or workers. The Committee notes in this connection that in the Government’s view, the legislation is adequate as it stands since the Labour Code sets forth the rights and duties of workers and employers and the Penal Code establishes the offences and the applicable penalties (section 174). The Committee considers that both quid pro quo and hostile environment sexual harassment need to be clearly defined and expressly prohibited in order to ensure that the legislation effectively addresses all forms of sexual harassment. The Committee also considers that addressing sexual harassment through criminal proceedings alone is not normally sufficient, due to the sensitivity of the issue, the higher burden of proof, which is harder to meet, especially if there are no witnesses (which is often the case), and the fact that criminal law generally focuses on sexual assault or “immoral acts” and not the full range of behaviour that constitutes sexual harassment in employment and occupation (General Survey on fundamental Conventions, 2012, paragraphs 791 and 792). The Committee again asks the Government to take the necessary steps to amend the Labour Code so that the provisions relating to sexual harassment expressly cover both quid pro quo and hostile working environment sexual harassment and establish adequate remedies for the victims and penalties for the offenders, whether they are employers or workers. The Committee also asks the Government to provide information on any complaints of sexual harassment filed with the labour inspectorate, and on any relevant administrative or judicial decisions issued as a result.

Export processing zones. The Committee notes the information provided by the Government to the effect that the Tripartite Labour Commission on Export Processing Zones signed an employment stability agreement providing for minimum wage increases of 8, 9 and 10 per cent for the years 2011, 2012 and 2013 respectively, thus ensuring employment stability for more than 100,000 workers. The Committee also notes that in the export processing zones there are 46,805 men and 55,035 women in formal employment. The Committee requests the Government to continue to provide information on the specific measures adopted under the agreement concluded in 2010 by the Tripartite Labour Commission on Export Processing Zones with a view to promoting equality of opportunity and treatment in the zones, and on the practical effects of such measures. Please also provide information on the labour inspectorate’s activities in export processing zones and on any cases of discrimination detected by or brought to the attention of the labour inspectors.

Indigenous peoples and ethnic communities. The Committee notes the information from the Government to the effect that 17 land titles were granted to indigenous and afro-descendent peoples, covering 243 communities. Furthermore, on 2 March 2011, Act No. 757 on dignified and fair treatment for indigenous and afro-descendant peoples was adopted, the aim of which is to regulate and guarantee just and equal treatment for these peoples as regards job opportunities and access to employment in both the public and the private sectors. The Coastal Act, which protects communal property, and the Traditional Medicine Act were also adopted. The Government states that under the Caribbean Coast Development Plan, measures have been taken to improve education, for example by increasing the number of teachers in the region and increasing teachers’ wages, and producing school textbooks in indigenous languages. Due to these measures, the illiteracy rate has dropped from 58 to 18 per cent. The Government also reports that the indigenous population now has an Intercultural Health Care Model, the result of which has been a fall in the number of instances of maternal and infant mortality. Furthermore, health personnel have received training, new hospitals have been built and three health units have been overhauled. In addition, financial loans and material assistance have been granted to various indigenous groups and peoples and copies of the Labour Code in the Misquito language have been distributed. The Committee requests the Government to continue to provide information on the adoption and impact of the measures on education, health and loans designed to ensure that indigenous peoples have access to employment and occupation on an equal footing with other workers. Please also provide any information on the difficulties encountered in this regard and the measures taken to remedy them.

Cooperation with employers’ and workers’ organizations. The Committee requests the Government to provide information on any cooperation with the social partners undertaken specifically to promote equality in employment and occupation.

Awareness raising and labour inspection. The Committee requests the Government to provide information on the measures implemented in public or private institutions to raise awareness about equality of opportunity and treatment in respect of all the grounds of discrimination, particularly race, colour, religion, political opinion, national extraction and social origin. Please also provide information on actions taken by the labour inspectorate to promote equality of opportunity and treatment, and on any remedies provided and penalties imposed further to complaints of discrimination.