Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Domestic Workers Convention, 2011 (No. 189) - Nicaragua (Ratification: 2013)

Article 1(c) of the Convention. Definition of domestic work and domestic worker. In its first report, the Government indicates that section 145 of the Labour Code, as amended by Act No. 666 establishing reforms and additions to Chapter I of Title VIII of the Labour Code of Nicaragua (Act No. 666) defines domestic workers as persons who provide their own services in the household, home or dwelling of a person or family “on a habitual or continuous basis”. The Committee notes that this definition appears to exclude domestic workers who work sporadically. In this regard, the Committee recalls that the definition of domestic worker established in Article 1 of the Convention only excludes sporadic workers when the domestic work they perform is not on an occupational basis. The Committee draws the Government’s attention to the preparatory work on the Convention, in which it was emphasized that the clarification referred to above was included in this provision to ensure that day labourers and similar precarious workers remain included in the definition of domestic worker (see Report IV(1), International Labour Conference, 100th Session, 2011, page 5). The Committee requests the Government to indicate the manner in which it is ensured that persons who perform domestic work occasionally or sporadically but on an occupational basis are protected by the guarantees provided for in the Convention.

Article 3(2)(c). Abolition of child labour. The Committee notes that article 84 of the Constitution prohibits the engagement of young persons in work likely to affect their normal development or their compulsory school attendance. It also notes that sections 73–75 of the Children and Young Persons Code prohibit work by children under 14 years of age, in unhealthy places which pose a risk to the life, health or physical integrity of young persons. The Committee refers to its comments on the Worst Forms of Child Labour Convention, 1999 (No. 182), and the Minimum Age Convention, 1973 (No. 138), in particular with regard to inspections conducted in premises where children and young persons work as domestic employees. The Committee requests the Government to provide information on the range of measures taken to ensure the effective promotion and protection of domestic workers by abolishing child labour, including the number of inspections conducted in households where young persons are engaged in domestic work, the number of offences reported and the penalties imposed.

Article 5. Abuse, harassment and violence. The Government indicates that section 146 of the Labour Code, as amended by Act No. 666, establishes with regard to young domestic workers that any humiliating treatment, act of discrimination or violence, duly verified by the Institute of Legal Medicine, which is committed by the employer against a young person shall require the corresponding Departmental Labour Inspectorate to apply the administrative penalties within its competence and inform the Ministry for the Family, Young Persons and Children with a view to the adoption of special protective measures for the victims and the submission of the respective complaint to the Public Prosecutor’s Office. However, the Government does not provide any information on the measures to be applied in relation to adult domestic workers. The Committee requests the Government to provide information on the measures taken by the Government in this respect and to specify the legislation whose purpose is to ensure that adult domestic workers enjoy protection against abuse, harassment and violence at work.

Article 6. Fair terms of employment and decent living conditions. The Committee notes that the Government does not provide any specific information on the application of this Article. The Government indicates that section 146 of the Labour Code, as amended, provides that remuneration for domestic workers shall include, in addition to cash payments, the provision of sufficient good-quality food and a room if the worker resides in the house where he/she works. Section 147 of the Labour Code provides for minimum daily rest of 12 hours for domestic workers, including at least eight hours at night, and one rest day for every six days of uninterrupted work. The Committee notes that although Act No. 666 provides for regular inspections in houses where young persons provide their services, the Act does not lay down any obligation for the employers of adult domestic workers to undergo periodic inspection by the Departmental Labour Inspectorate. The Committee requests the Government to indicate whether any type of monitoring is being planned or implemented to ensure the conformity of working conditions for adult domestic workers with the national legislation.

Article 7. Information on terms and conditions of employment. The Committee notes the particulars which, under the terms of section 20 of the Labour Code, must appear in a written employment contract. However, it notes that section 24 of the Labour Code provides that, for domestic work, employment contracts may be concluded verbally and, if so, the employer must provide the worker within the first three days of work with a certificate indicating the start date of the employment relationship, the services to be provided or the work to be performed, and the wages that have been fixed. This certificate is considered sufficient to demonstrate the existence of an employment relationship. In this regard, the Committee notes that the certificate that the employer must give to the worker does not include all the particulars referred to in section 20 of the Labour Code. The Committee recalls that Article 7 of the Convention provides that each Member shall take measures to ensure that domestic workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner and preferably, where possible, through written contracts. The Committee requests the Government to provide information on the measures taken to give full effect to Article 7 of the Convention.

Article 8. Migrant domestic workers. The Government indicates that the Ministry of Labour, through the Department of Labour Migration, establishes procedures for the recruitment of female temporary workers originating from Costa Rica on the basis of the bilateral agreement between Nicaragua and Costa Rica signed in December 2007. However, the Government explains that this agreement excludes domestic workers because they were reportedly opposed to being included as a group in an agreement of this kind, in view of the particular features of their recruitment. The Committee requests the Government to provide detailed information on the measures taken or contemplated to ensure compliance with Article 8(1) of the Convention, and also on any bilateral, regional or multilateral agreements that apply to domestic work. In view of the fact that a large proportion of Nicaraguan migrant women are employed as domestic workers in Costa Rica, the Committee requests the Government to describe the specific measures taken to ensure that the latter can obtain consular assistance, if necessary, and that they know their labour rights. The Committee also requests the Government to explain how effect is given to the Convention in cases where an intermediary organization handles the recruitment of domestic workers and to indicate the measures taken or contemplated by the Government to protect Nicaraguan female migrant workers in a foreign country. The Committee further requests the Government to provide information on the measures taken or contemplated to ensure compliance with Article 8(4) of the Convention concerning the right to repatriation on the expiry or termination of the employment contract.

Article 9. Freedom to reach agreement with the employer on whether to reside in the household. Keeping possession of travel and identity documents. The Committee notes that the Labour Code, as amended, does not specify whether domestic workers are free to reach agreement with their employer or potential employer on whether or not to reside in the household where they work. Furthermore, it notes that the legislation does not establish the right of domestic workers to keep their travel and identity documents in their possession. The Committee requests the Government to provide information on the measures taken to ensure that domestic workers are free to reach agreement with their employer on whether or not to reside in the household where they work. The Committee also requests the Government to provide information on the measures taken or contemplated to ensure that migrant domestic workers have the right to keep their travel and identity documents in their possession.

Article 10. Equal treatment between domestic workers and workers generally in relation to normal hours of work. The Committee notes that Act No. 666 establishes normal hours of work only with respect to young workers. However, section 147 of the Labour Code complements this by adding that domestic workers are entitled to an absolute minimum of 12 hours’ daily rest, including a continuous period of eight hours at night, subject to the exceptions established in the Labour Code. As regards overtime, the Committee notes that this is not regulated by Act No. 666 and so section 62 of the Labour Code would apply. As regards annual leave, the legislation applicable to domestic workers does not contain any specific provisions in this regard, but section 76 of the Labour Code provides for 15 days of continuous paid rest for every six months of continuous service for the same employer. Lastly, the Committee notes that Act No. 666 does not regulate the periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household. However, section 49 of the Labour Code, which applies in general terms, establishes that the working day must be considered as starting at the time when the workers arrive at the place of work or the place where they receive orders or instructions relating to the work to be done during the day, and ending at the time when the workers are free to dispose of their time as they please. The Committee requests the Government to provide information on normal hours of work for adult domestic workers, overtime compensation and paid annual leave to ensure equal treatment between domestic workers and workers generally. It also requests the Government to provide information on how the applicable legislation regulates periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls, in such a way that these periods shall be regarded as paid hours of work.

Article 12(2). Payment in kind. The Committee observes that section 149 of the Labour Code, as amended, prohibits payments in kind. Section 146 of the Labour Code provides that remuneration for domestic workers shall include, in addition to cash payments, the provision of sufficient good-quality food and a room if the worker resides in the house where he/she works. However, the second paragraph of section 146 of the Labour Code provides that, to establish the basis for calculating payments for services, account shall also be taken of food and lodging provided, with a value equivalent to 50 per cent of the wages received in cash. The Committee requests the Government to provide information on the measures taken to ensure that payments in kind are agreed to by the worker, are for the personal use and benefit of the worker, and that the monetary value attributed to them is fair and reasonable. The Committee also requests the Government to indicate whether specific measures have been taken to ensure that the calculation of food and lodging is in conformity with Article 12 of the Convention.

Article 13. Right to a safe and healthy working environment. The Government indicates in its report that effect is given to Article 13(1) and (2) of the Convention by Act No. 666. However, the Committee notes that the Labour Code, as amended, does not refer to safety and health at work, except for the general reference in section 150 of the Labour Code to “special health programmes”. In addition, it notes that section 17(q) of the Labour Code stipulates that employers are obliged to provide free lodging for workers when, as a result of the nature of the work or because of requirements imposed by the employer, workers are required to remain at the workplace, while Title V of the Labour Code regulates occupational health and hygiene and occupational risks. The Committee also notes that, under section 101 of the Labour Code, employers are obliged to adopt minimum measures regarding occupational hygiene and accident prevention, training and protection services. The Committee requests the Government to provide information on the application of Title V of the Labour Code, indicating whether this applies to domestic workers, and on the measures it intends to adopt, with due regard for the specific characteristics of domestic work, to ensure the occupational safety and health of domestic workers. The Committee also requests the Government to provide information on the measures taken or contemplated to ensure that full effect is given to Article 13.

Article 14. Social security. The Committee notes that article 74 of the Constitution provides for special protection for women during pregnancy, the right to paid leave and adequate social security benefits, and prohibits dismissal during pregnancy and the post-natal period. Article 78 of the Constitution establishes maternity and paternity protection, while article 82(7) of the Constitution establishes the right of workers to social security coverage in relation to invalidity, old age, occupational risks, sickness and maternity. In addition, section 150 of the Labour Code, as amended, lays the obligation on the employer to affiliate domestic workers to the social security scheme, whereupon they are entitled to social security benefits and special health programmes. Lastly, the Committee notes that the Social Security Act (No. 539 of 12 May 2005) includes domestic workers in its scope of application (section 5), so that they appear to be covered for the same social security benefits as other workers (old age, invalidity, death, health, occupational risks). The Committee requests the Government to indicate the manner in which it is ensured that domestic workers, including those who work for multiple employers, enjoy conditions that are not less favourable than those applicable to workers generally in respect of social security protection and to specify the benefits to which they are entitled and the applicable legislative provisions. The Committee also requests the Government to indicate the manner in which it ensures the application in practice of the abovementioned provisions and to supply statistics on the number of domestic workers who are affiliated to the social security scheme.

Article 15. Private employment agencies. The Government indicates that private employment agencies are regulated by Ministerial Decision JCHG-004-04-07 (the Decision). Under the terms of the Decision, it is the Ministry of Labour which is responsible for supervising and regulating the operation of private employment agencies concerned with arranging job placements for workers and employers (section 1). The Committee notes that, according to section 19 of the Decision relating to appropriate mechanisms and procedures for the investigation of complaints, alleged abuses and fraudulent practices, it is the Departmental Labour Inspectorate which is responsible for enforcing the Decision. Section 15 of the Decision imposes the obligation on private employment agencies to send a statistical report every month to the Directorate of Employment and Wages or to the corresponding Departmental Office of the Ministry of Labour. Lastly, section 7 of the Decision prohibits private agencies from demanding any kind of direct or indirect payment or imposing any kind of fees or charges. The Committee requests the Government to provide information on the measures taken or contemplated to provide adequate protection for, and prevent abuses against, domestic workers recruited or placed in Nicaragua by private employment agencies. It also requests the Government to supply information on consultations with the most representative organizations of employers and workers with regard to the implementation of measures provided for in Article 15 of the Convention to protect domestic workers recruited or placed by private employment agencies against abusive practices. In addition, the Committee requests the Government to indicate whether any mechanism or procedure for the investigation of complaints has been established by the Departmental Labour Inspectorate for reporting fraudulent practices by employment agencies, and to describe the operation of such a mechanism in practice. Lastly, the Committee requests the Government to provide information on the number of offences identified and other penalties imposed.

Article 16. Access to the justice system. The Government indicates in its report that all workers, including domestic workers, have effective access to labour tribunals, administrative channels and inspection services attached to the Ministry of Labour, either in person or through a representative. The Committee requests the Government to specify the different resources to which domestic workers have access and to indicate the measures it has taken to facilitate access to the justice system for domestic workers, including information and awareness-raising campaigns.

Article 17. Access to household premises. The Government does not specify any arrangements whereby the labour inspectorate has access to household premises, except for periodic inspections relating to the working conditions of young domestic workers (section 146 of the Labour Code). The Committee notes that, under section 22 of Act No. 664 (General Labour Inspection Act), labour inspectors may carry out inspections at any time of the day or night without prior warning, during the working day established by the workplace or in respect of any establishment or premises which can reasonably be supposed to be liable to inspection, in order to ensure the due application of the labour legislation. At the same time, the Committee notes that under article 26 of the Constitution, every person has the right to the inviolability of his/her home. The Committee requests the Government to provide information on the manner in which effect is given to Article 17 of the Convention.

Court decisions. The Committee requests the Government to provide examples of court decisions handed down on the basis of Act No. 666.

Observations from the social partners. The Committee observes that the Government’s report does not contain any information in this respect. The Committee requests the Government to provide information on any observations made by, or discussions held with, the social partners regarding the implementation of the Convention.