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

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 3(d) of the Convention. Nursing breaks. The Committee notes the information provided by the Government in response to its previous comment clarifying that, even though section 143(2) of the Labour Code provides for a break of 15 minutes every three hours for nursing, it is a national practice accepted by the Ministry of Labour that women workers can come to work an hour later or leave an hour before their established working time. The Committee also notes the information that various collective agreements provide for longer breaks, in conformity with Article 3(d) of the Convention, which provides for two breaks of half an hour in a working day. The Committee observes that, although it is a common practice, the sectoral nature of collective agreements and their limitation in time does not ensure that effect is given to Article 3(d) for all women workers covered by the Convention. In view of the above, the Committee expects that the Government will take all the necessary measures to adapt the national legislation respecting nursing breaks, and particularly section 143(2) of the Labour Code, so as to bring it into full conformity with the national practice and with Article 3(d) of the Convention.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the Government’s report, the statistical information provided, the observations of 2011 from the Trade Union Unification Confederation (CUS), and the Government’s reply to them.

Article 3 (d) of the Convention. Nursing breaks. In its previous comments the Committee emphasized that section 143(2) of the Labour Code, which provides for a 15-minute break every three hours for nursing (breastfeeding), is not in conformity with Article 3(d) of the Convention, which provides for two breaks of half an hour in a working day. The Committee notes the Government’s indications that: (1) in the public sector, nursing mothers have one hour per day for breastfeeding; and (2) in the private sector, collective agreements usually provide for longer breaks than those stipulated by the national legislation. In view of the above, the Committee requests the Government to indicate which legislative provisions allow nursing mothers working in the public sector a nursing break of one hour per day. It also requests the Government to send copies of collective agreements containing provisions on nursing breaks. Lastly, the Government is requested to amend section 143(2) of the Labour Code to bring it into full conformity with national practice and with Article 3(d) of the Convention.

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

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.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 3(d) of the Convention. In answer to the Committee’s comments, the Government indicates that in the course of the discussions that took place in the National Assembly in the context of the adoption of the Labour Code, women’s organizations stated that they were in favour of a 15-minute pause every three hours to allow breastfeeding at the workplace, in accordance with the provisions of section 143(2) of the Code. The Government adds that the social partners have the possibility, through collective agreements, of agreeing to other arrangements regarding working conditions such as a reduction of working time in order to take account of the particularities of the occupation. The Committee takes note of this information. However, it is bound to observe once again that the abovementioned provision of the Labour Code is inconsistent with the Convention, which provides that a female employee shall in any case, if she is nursing her child, be allowed half an hour twice a day for this purpose. The Committee therefore hopes that the Government will reconsider this matter and will take the necessary steps in the near future to bring section 143 of the Labour Code into line with Article 3(d) of the Convention.

Furthermore, in so far as the Convention does not specify that pauses for breastfeeding must be taken at the place of work, the Committee again requests the Government to provide information on the effect given in practice to section 143, including subsection 1, and to specify any measures in place for its enforcement.

Article 4. In its previous comments the Committee noted that under section 144 of the Labour Code, female employees who are pregnant or who have taken maternity leave may not be dismissed unless due cause has previously been established by the Minister for Labour. The Committee understands from the Government’s reply indicating that the Minister for Labour does not authorize the dismissal of women who are pregnant or who are on maternity leave, that this provision of the Labour Code is not applied in practice. It therefore hopes that there will be no obstacle to the Government’s taking the necessary steps to have section 144 of the Labour Code either formally repealed or at least restricted in scope, in order to give effect to Article 4 of the Convention under which it is unlawful for an employer to dismiss a women worker while she is on maternity leave or at such time as the period of notice would expire during the leave.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Article 3(c) of the Convention. (a). With reference to its previous comments, the Committee notes the report sent by the Government and the statistical information appended thereto. It notes in particular that at the end of 2000, the National Social Security Institute had 308,531 direct members and 894,740 dependants, i.e. a total of 1,203,271 persons covered. The Committee also notes a significant increase in the number of confinements covered by sickness and maternity insurance under the integrated scheme during the period from 1998 to 2000, and the increase, equally significant, in the number of insured persons who received maternity benefit. The Committee observes, however, that although it covers 76 per cent of workers the integrated social security scheme, which includes maternity protection, continues to apply to only part of the country. The Committee is therefore bound once again to point out that in the regions to which application of the integrated scheme has not yet been extended, the employer continues to bear directly the cost of cash maternity benefits, whereas the Convention requires these benefits to be provided either out of public funds or guaranteed by an insurance system. The Committee therefore hopes that the Government will continue to do its utmost to extend the provision of maternity benefits by the social security scheme to the whole country in order to cover all the women workers protected by the Convention. It trusts that the Government will be in a position to indicate progress in this respect in its next report.

(b). The Committee notes from the information in the Government’s report that since 1999 six new medical establishments have been created to provide preventive and remedial care to women who belong to the integrated social security scheme, bringing the total number of such establishments in the country to 47. It also notes that according to the statistics sent by the Government, medical insurance establishments had 195,228 members in 2000, i.e. an increase of 9.6 per cent over the previous year, although these persons did not account for the total membership of the integrated insurance scheme. The Committee also notes the information supplied by the Government on the various types of care dispensed to pregnant women in 2000 by medical insurance establishments, showing a clear increase in the number of consultations and confinements as compared to previous years. According to the statistics sent by the Government, the medical insurance establishments covered 9,023 confinements in 2000, which appears to be a relatively small number in view of Nicaragua’s population and birth rate. In these circumstances, the Committee hopes that the Government’s next report will contain information on the measures taken or envisaged to develop the medical infrastructure so that, in practice, all women workers covered by the Convention receive the free care prescribed by its provisions.

The Committee also requests the Government to continue to provide information on the practical implementation of the social security scheme in respect of maternity benefits both in cash and in kind, including statistics on the regions covered and the number of employed persons covered by the scheme as compared to the total number of employed persons.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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

Referring to its observation, the Committee wishes to draw the Government’s attention to the following points.

Article 3(d) of the Convention. In answer to the Committee’s comments, the Government indicates that in the course of the discussions that took place in the National Assembly in the context of the adoption of the Labour Code, women’s organizations stated that they were in favour of a 15-minute pause every three hours to allow breastfeeding at the workplace, in accordance with the provisions of section 143(2) of the Code. The Government adds that the social partners have the possibility, through collective agreements, of agreeing to other arrangements regarding working conditions such as a reduction of working time in order to take account of the particularities of the occupation. The Committee takes note of this information. However, it is bound to observe once again that the abovementioned provision of the Labour Code is inconsistent with the Convention, which provides that a female employee shall in any case, if she is nursing her child, be allowed half an hour twice a day for this purpose. The Committee therefore hopes that the Government will reconsider this matter and will take the necessary steps in the near future to bring section 143 of the Labour Code into line with Article 3(d) of the Convention.

Furthermore, in so far as the Convention does not specify that pauses for breastfeeding must be taken at the place of work, the Committee again requests the Government to provide information on the effect given in practice to section 143, including subsection 1, and to specify any measures in place for its enforcement.

Article 4. In its previous comments the Committee noted that under section 144 of the Labour Code, female employees who are pregnant or who have taken maternity leave may not be dismissed unless due cause has previously been established by the Minister for Labour. The Committee understands from the Government’s reply indicating that the Minister for Labour does not authorize the dismissal of women who are pregnant or who are on maternity leave, that this provision of the Labour Code is not applied in practice. It therefore hopes that there will be no obstacle to the Government’s taking the necessary steps to have section 144 of the Labour Code either formally repealed or at least restricted in scope, in order to give effect to Article 4 of the Convention under which it is unlawful for an employer to dismiss a women worker while she is on maternity leave or at such time as the period of notice would expire during the leave.

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

Article 3(c) of the Convention. (a). With reference to its previous comments, the Committee notes the report sent by the Government and the statistical information appended thereto. It notes in particular that at the end of 2000, the National Social Security Institute had 308,531 direct members and 894,740 dependants, i.e. a total of 1,203,271 persons covered. The Committee also notes a significant increase in the number of confinements covered by sickness and maternity insurance under the integrated scheme during the period from 1998 to 2000, and the increase, equally significant, in the number of insured persons who received maternity benefit. The Committee observes, however, that although it covers 76 per cent of workers the integrated social security scheme, which includes maternity protection, continues to apply to only part of the country. The Committee is therefore bound once again to point out that in the regions to which application of the integrated scheme has not yet been extended, the employer continues to bear directly the cost of cash maternity benefits, whereas the Convention requires these benefits to be provided either out of public funds or guaranteed by an insurance system. The Committee therefore hopes that the Government will continue to do its utmost to extend the provision of maternity benefits by the social security scheme to the whole country in order to cover all the women workers protected by the Convention. It trusts that the Government will be in a position to indicate progress in this respect in its next report.

(b). The Committee notes from the information in the Government’s report that since 1999 six new medical establishments have been created to provide preventive and remedial care to women who belong to the integrated social security scheme, bringing the total number of such establishments in the country to 47. It also notes that according to the statistics sent by the Government, medical insurance establishments had 195,228 members in 2000, i.e. an increase of 9.6 per cent over the previous year, although these persons did not account for the total membership of the integrated insurance scheme. The Committee also notes the information supplied by the Government on the various types of care dispensed to pregnant women in 2000 by medical insurance establishments, showing a clear increase in the number of consultations and confinements as compared to previous years. According to the statistics sent by the Government, the medical insurance establishments covered 9,023 confinements in 2000, which appears to be a relatively small number in view of Nicaragua’s population and birth rate. In these circumstances, the Committee hopes that the Government’s next report will contain information on the measures taken or envisaged to develop the medical infrastructure so that, in practice, all women workers covered by the Convention receive the free care prescribed by its provisions.

The Committee also requests the Government to continue to provide information on the practical implementation of the social security scheme in respect of maternity benefits both in cash and in kind, including statistics on the regions covered and the number of employed persons covered by the scheme as compared to the total number of employed persons.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information contained in the Government's last report and, in particular, the adoption of Act No. 185 of 30 October 1996 respecting the Labour Code. The Committee wishes to draw the Government's attention to the following points.

Article 3(c) of the Convention. The Committee notes that, under section 89 of the Act on social security, the Minister of Health guarantees preventive and curative medical care to the whole of the population as well as the integral maternity protection and child protection through the integrated national health system. Under these conditions, the Committee would be grateful if the Government would define the nature of care guaranteed by the integrated national health system to female employees before, during and after confinement. Please also provide information in respect of the practical application of the integrated national health system by specifying the regions covered.

Article 3(d). The Committee notes that under section 143(2) of the Labour Code, a female employee who is nursing her child is allowed 15 minutes every three hours at her workplace for that purpose, whereas this provision of the Convention provides that a female employee shall, in any case, if she is nursing her child be allowed half an hour twice a day for this purpose. Under these circumstances, the Committee trusts that the Government shall re-examine the question and take the necessary measures to bring section 143 of the Labour Code into full conformity with the provisions of the Convention.

Section 143(1) of the Labour Code also lays down the obligation for the employer to provide female employees who are nursing a child with suitable premises for this purpose as well as chairs or seats and, when more than 30 women are employed in the enterprise, to prepare or construct suitable premises for female employees who are nursing a child. The Committee notes with interest these provisions designed to improve the conditions in which female employees may nurse a child. Nevertheless, the Committee notes that the nursing breaks should be taken at the workplace. Taking into account that the Convention does not specify that nursing breaks must be taken at the workplace, the Committee would be grateful if the Government would provide information in respect of the practical application of section 143 of the Labour Code and, where necessary, to specify the supervisory measures envisaged in this respect.

Article 4. Under section 144 of the Labour Code, female employees who are pregnant or who have taken maternity leave may not be dismissed unless due cause has previously been established by the Minister for Labour. In this respect, the Committee is bound to recall to the Government that under this provision of the Convention it shall not be lawful for an employer to give notice of dismissal to a female employee who is absent from her work for reasons of maternity leave or at such a time that the notice would expire during such absence. The Committee hopes that the Government will re-examine this question and take the necessary measures to complete its legislation by adopting a provision to give full effect to the Convention in this regard.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Article 3(c) of the Convention. The Committee refers to its previous comments and notes that the Government provides no further information in respect of the extension of the social security scheme. The Committee recalls in this regard that the costs of maternity cash benefits for women who are not covered by the social security scheme continue to be provided directly by the employer whereas this provision of the Convention lays down that cost of benefits must be provided either out of public funds or guaranteed by a system of social insurance. The Committee trusts that the Government will make every effort to extend maternity benefits provided for under the social security scheme throughout the whole of the territory in order to cover all female employees protected by the Convention. The Committee requests the Government to indicate any progress achieved in this respect and to provide information, in particular, statistical data in respect of the geographic cover of the social security scheme with regard to maternity benefits.

Moreover, a request regarding certain points is being addressed directly to the Government.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Article 3(c) of the Convention. With reference to its previous comments, the Committee notes the Government's statement that the situation has not changed and that no extension of the social security scheme is anticipated in the immediate future. The Committee recalls that the cost of maternity cash benefits for women not yet covered by the social security scheme continue to be assumed directly by the employer, which is contrary to this provision of the Convention. In these circumstances, it again expresses the hope that the Government will be able to review the situation and do its utmost to extend the social security scheme gradually throughout the national territory to cover all categories of women workers covered by the Convention. It asks the Government to report on all progress made in this matter and to provide information, including statistics, on the geographical coverage of the social security scheme.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

In its last report the Government indicates that it is conscious of the validity of the Committee's previous comments, although the present economic situation in the country does not allow it to assume the cost of cash benefits for women not yet covered by the social security scheme. The Committee notes this statement; it nevertheless reiterates its hope that the extension of the social security scheme might take place gradually, so that maternity cash benefits be paid throughout the national territory in conformity with Article 3(c) of the Convention "by means of a system of insurance", and not by the employer.

The Committee therefore asks the Government to provide, in its next report, information on any further extension of the social security scheme (maternity cash benefit) to all women workers employed in industrial and commercial undertakings covered by this instrument. Please also supply any statistical information on the geographical coverage of the social security scheme, as far as maternity cash benefits are concerned.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 3(c) of the Convention (maternity allowance). In its earlier comments the Committee has noted that medical assistance for maternity was provided for the whole population, whether the women concerned were covered by the social security scheme or not, but that the employer still had to assume directly the cost of cash benefit for women not yet covered by insurance, which is contrary to the above-mentioned provision of the Convention. The Committee has therefore expressed the hope that the extension of the social security scheme might take place gradually so as to apply to all the classes of women workers covered by the Convention.

In reply to these comments, the Government states that the social security scheme has been extended at the national level, but only in respect of invalidity, death and occupational risks. The Committee takes note of this progress, but again expresses the hope that the extension of the social security scheme to cover the contingency of maternity may take place shortly so that the allowance provided for by the Convention may be paid, by virtue of the insurance scheme, to all women workers covered by this instrument throughout its territory.