Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8) - Nicaragua (Ratification: 1934)

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

Article 1(1) of the Convention. Scope of application – Definition of the term “seafarer”. The Committee has been drawing the Government’s attention for a number of years to the need to take measures to ensure the application of the Convention to masters and officers, who are currently excluded from the definition of “maritime workers” under section 161 of the Labour Code. In its last report, the Government again states that masters and officers having an employment relationship with an employer qualify as workers. The Committee observes, however, that section 163 of the Labour Code to which reference is made in the Government’s report, expressly refers to “maritime workers” – a term that is defined in section 161 to mean all persons employed on board a ship with the exception of masters and officers. The Committee is therefore bound to conclude that, in its current reading, Chapter III of Title VIII Special Labour Conditions of the Labour Code (sections 161 to 166) implements only partially the basic requirement of the Convention. The Committee expresses once more the hope that the Government, in accordance with the assurances given in an earlier report, will consider the possibility of amending section 161 of the Labour Code with a view to bringing it into full conformity with the Convention, or envisage other measures, for instance a suitable amendment to the Maritime Transport Act (Act No. 399 of 2001) and its Regulations (Decree No. 4877 of 2006), in order to ensure that masters and officers are entitled to unemployment indemnity in the event of shipwreck, as prescribed by the Convention.

Article 2(2). Payment of the unemployment indemnity. In the absence of the Government’s reply, the Committee is obliged to reiterate that section 166 of the Labour Code gives only partial effect to Article 2(2) of the Convention since it provides for the payment of an indemnity in general terms without specifying neither the nature of the indemnity nor the conditions under which it is granted. The Committee recalls that the Convention requires that the unemployment indemnity due to the seafarer in every case of the loss or foundering of the vessel be paid for the days during which the seafarer remains in fact unemployed, for a period of at least two months. The Committee therefore again asks the Government to take all the necessary measures to ensure that the rate and duration of the unemployment indemnity payable to seafarers in case of shipwreck are specified in accordance with the requirements of this Article of the Convention.

Finally, the Committee recalls that most of the provisions of the Convention have been incorporated in Regulation 2.6, Standard A2.6 and Guideline B2.6 of the Maritime Labour Convention, 2006 (MLC, 2006), and therefore ensuring compliance with the Convention would facilitate compliance with the corresponding requirements of the MLC, 2006. The Committee requests the Government to keep the Office informed of any further developments regarding the process of ratification and effective implementation of the MLC, 2006.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 1, paragraph 1, of the Convention. In its previous comments, the Committee drew the Government’s attention to section 161 of the Labour Code, which excludes masters and officers from the definition of maritime workers. It also noted that the indemnity envisaged in section 166 of the Labour Code in the event of shipwreck only appears to be payable to maritime workers, within the meaning of this term under the Labour Code, and not therefore to masters and officers, whereas the Convention does not authorize such exclusions, as it applies to all persons employed on any vessel engaged in maritime navigation. In its latest report, the Government indicates that, under the terms of section 2 of the Labour Code, the latter is applicable to all persons resident in Nicaragua. It adds that, by virtue of section 10 of the Labour Code, the masters of vessels have specific obligations towards other workers in their capacity as representatives of the employer. The Committee notes this information, through which the Government appears to wish to establish the application of the Labour Code to masters and officers of vessels. However, it notes that, while these provisions are of the general nature, the sections of the Labour Code specifically covering maritime employment and shipwreck explicitly provide for the exclusion of masters and officers from the definition of maritime workers (section 161 of the Code). The Committee would therefore be grateful if the Government would provide information in its next report demonstrating that masters and officers employed on vessels which have been shipwrecked receive, for all the days during which they in fact remain unemployed and independently of whether they reside in Nicaragua or not, an indemnity at the same rate as the wages payable under the contract, but which may be limited to two months’ wages. In any case, the Committee hopes that, in accordance with the assurances given in its previous report, the Government will envisage the possibility of issuing regulations under section 161 of the Labour Code with a view to bringing this provision into conformity with the Convention. The Committee also wishes to emphasize in this regard that the payment to seafarers of the unemployment benefits provided by the Convention must not be made conditional upon residence in the country.

Article 2, paragraph 2. The Committee notes that the Government’s report does not contain a reply to its previous comments. It is therefore bound to recall once again that the provisions of the national legislation (section 166 of the Labour Code) are not sufficient to ensure the application of Article 2, paragraph 2, of the Convention. Indeed, the above provision of the Labour Code is confined to securing, where appropriate, payment to the seafarer of an indemnity in accordance with the legislation, without specifying either the nature of the indemnity or the conditions under which it is granted, whereas the Convention provides that the unemployment indemnity due to the seafarer in every case of the loss or foundering of the vessel shall be paid for the days during which the seafarer remains in fact unemployed, for a period of at least two months. Under these conditions, the Committee once again hopes that the Government will re-examine the matter favourably and will take all the necessary measures to determine the means of application of section 167 above so as to secure in practice the protection afforded by this provision of the Convention.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

Article 1, paragraph 1, of the Convention. In its previous comments, the Committee drew the Government’s attention to section 161 of the Labour Code which excludes masters and officers from the definition of the term "seamen", whereas this provision of the Convention does not permit such exclusions when determining the persons entitled to receive an unemployment indemnity in the event of the loss or foundering of a vessel. In its latest report, the Government indicates that masters and officers who are engaged in managerial and administrative duties are considered to be "trusted" workers and may in this capacity benefit from the indemnity envisaged in section 47 of the Labour Code. The Committee notes this information. It observes in this respect that the indemnity envisaged in section 47 is intended as compensation when it is impossible to reinstate "trusted" workers who have been wrongfully dismissed. This indemnity cannot therefore be considered as an unemployment indemnity within the meaning of the Convention. The Committee therefore trusts that the Government will adopt the necessary amendments to section 161 of the Labour Code in the very near future so as to ensure that masters and officers benefit from the protection afforded by the Convention in the event of the loss or foundering of their ship.

Article 2, paragraph 2. In reply to the Committee’s previous comments, the Government refers to several fundamental principles set forth in the Labour Code. Some of these principles relate to the direct application of international Conventions ratified by Nicaragua. While noting this information, the Committee reminds the Government that the provisions of the national legislation (section 167 of the Labour Code) are not sufficient to ensure the application of Article 2, paragraph 2, of the Convention. Indeed, the above provision of the Labour Code is confined to securing, where appropriate, payment to the seaman of an indemnity in accordance with the legislation, without specifying either the nature of the indemnity nor the conditions under which it is granted, while the Convention provides that the unemployment indemnity due to the seaman in every case of the loss or foundering of the vessel shall be paid for the days during which the seaman remains in fact unemployed for a period of at least two months. In these conditions, the Committee trusts that the Government will make the necessary amendments to section 167 of the Labour Code so as to ensure that the national legislation explicitly guarantees seamen the protection envisaged by this provision of the Convention.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the information communicated by the Government in its last report. It also notes the adoption of the new Labour Code (Act No. 185 of 30 October 1996), of which Book I, Title VIII, Chapter III, governs work on the sea. In this connection the Committee wishes to draw the Government's attention to the following points.

1. Article 1, paragraph 1, of the Convention. The Committee notes that section 161 of the Labour Code maintains the exclusion of captains and officers from the definition of the term "seamen", whereas this provision of the Convention does not permit such exclusion for purpose of entitlement to an indemnity in the event of shipwreck. It notes however that the Government envisages the possibility of aligning this section of the Labour Code with the provisions of the Convention. Consequently, it expresses the hope that in its next report the Government will indicate the measures adopted to give full effect to the Convention on this point.

2. Article 2, paragraph 2. The Committee notes with regret that despite the comments it has been making for many years, section 166 of the Labour Code though it provides for the payment of an indemnity to a seaman in the event of shipwreck in conformity with the law, it does not specify, as required by Article 2, paragraph 2, of the Convention, that the indemnity must not be less than two months' wages. The Committee therefore trusts that the Government will reconsider the question and adopt the necessary measures to amend the provisions of section 166 of the Labour Code, so that the legislation guarantees the entitlement of seamen, in the event of loss or foundering of the vessel, to payment of an indemnity for all the days of the period of unemployment arising from the shipwreck for at least two months, in conformity with this provision of the Convention.

[The Government is asked to report in detail in 2001.]

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

1. Article 2 of the Convention. For some time, the Committee has been commenting on the fact that the provisions of the Labour Code (section 155 in relation with sections 116 and 117) are not sufficient to ensure an unemployment indemnity in case of shipwreck for a minimum of two months. In its report, the Government provides a copy of the text of Chapter III of the new Labour Code, concerning work on the sea (and navigable waterways), adopted by the National Assembly but which does not appear to have entered into force. The Committee notes this information. It again points out that section 172 of Chapter III guarantees only that the seaman shall receive an indemnity in accordance with the law. The Committee recalls that under Article 2 of the Convention the unemployment indemnity due to seamen in every case of loss or foundering of any vessel shall be paid for the days during which the seaman remains unemployed, for a minimum of two months. The Committee hopes that the Government will take the necessary measures in the near future to give full effect to the Convention on this point. It would appreciate receiving information on any progress made in this respect.

2. Article 1, paragraph 1, of the Convention. The Committee notes that article 167 of the aforementioned Chapter III excludes captains and officers from the definition of seamen, whereas Article 1 does not permit such an exclusion for purposes of entitlement to an indemnity in case of shipwreck. The Committee requests information on what measures have been taken or are envisaged to amend Chapter III on this point.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

Article 2 of the Convention. In previous comments the Committee has drawn the Government's attention to the fact that the existing provisions of the Labour Code (section 155 in relation with sections 116 and 117) were not sufficient to ensure that the unemployment indemnity due to seamen, irrespective of the type of contract, in every case of loss or foundering of any vessel, shall be paid for the days during which the seaman remains unemployed, for a minimum of two months. In its report, the Government states that Chapter III, concerning work on the sea and navigable waterways, has been adopted by the National Assembly, and that section 174 of said chapter ensures an indemnity in case of shipwreck. The Committee notes this information. It points out that section 174, as quoted in the Government's report, guarantees an indemnity in accordance with the law, and does not specify a minimum of two months' wages, as provided under Article 2 of the Convention. The Committee requests further information on what measures have been taken or are envisaged, such as further amendments to the Labour Code, to give full effect to the Convention on this point. It also asks the Government to indicate whether the new Chapter III of the Labour Code has come into force, and to provide the full text to the Committee as soon as possible.

[The Government is asked to report in detail in 1996.]

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

In its previous comment the Committee drew the Government's attention to the fact that the present provisions of the Labour Code (Article 155 in relation with Articles 116 and 117) are not sufficient to ensure that full effect is given to Article 2 of the Convention, which provides that the unemployment indemnity due to seamen, irrespective of the type of contract, in every case of loss or foundering of any vessel, shall be paid for the days during which the seaman remains unemployed at the same rate as the wages payable under the contract, but the indemnity may be limited to two months' wages if the period of unemployment is longer than two months.

In its last report, the Government states that a draft Labour Code is being prepared by the Ministry of Labour with the participation of the social partners and with the assistance of the ILO with a view to aligning the national legislation with the provisions of ratified Conventions.

The Committee takes note of this information. It trusts that the new Labour Code will be adopted in the near future and will give full effect to the provisions of the Convention.

Observation (CEACR) - adopted 1987, published 74th ILC session (1987)

With reference to its previous comments, the Committee takes note of the information supplied by the Government in its report to the effect that the Juridical Department of the Ministry of Labour is preparing draft reforms based on the comments of the Committee, which will be transmitted to the Office when they have been revised by the higher authorities in the Ministry. The Committee expresses the hope that in the near future the Government will complete the reform of the Labour Code, which was announced a few years ago, and will give full effect to the Convention. The Committee recalls that the present provisions of the Labour Code (Article 155 in relation with Articles 116 and 117) are not sufficient to ensure that full effect is given to Article 2 of the Convention, which provides that the unemployment indemnity due to seamen, irrespective of the type of contract, in every case of loss or foundering of any vessel, shall be paid for the days during which the seaman remains unemployed at the same rate as the wages payable under the contract, but the indemnity may be limited to two months' wages if the period of unemployment is longer than two months.