Seafarers' Annual Leave with Pay Convention, 1976 (No. 146) - Nicaragua (Ratification: 1981)

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

Article 4(1) of the Convention. Proportional leave. In its previous comment, the Committee requested the Government to indicate whether a seafarer is entitled to claim, prior to the expiry of the six-month period of continuous service giving right to 15 days of leave, leave with pay of a duration proportionate to his or her length of service. In this respect, the Committee wishes to draw the Government’s attention to the fact that this matter is now governed by Standard A2.4(2), of the Maritime Labour Convention, 2006 (MLC, 2006), which provides that the annual leave with pay entitlement of seafarers shall be calculated on the basis of a minimum of 2.5 calendar days per month of employment. This means that, irrespective of the duration of the seafarer’s engagement, he or she is entitled to 2.5 days of leave for each month of effective service. The Committee therefore once again requests the Government to provide the information on this question and to indicate how effect is given to this requirement of the Convention.

Article 5(3). Calculation of length of service. The Committee notes the information provided by the Government that there are no collective agreements or other arrangements covering this matter. In this respect, it observes that section 79 of the Labour Code provides that work stoppages due to sickness, authorized absence or any other valid reason shall not be deducted from the total period of service. The Committee therefore requests the Government to indicate whether the words “any other valid reason” in this section covers authorized absence to attend an approved maritime vocational training course, absence for reasons of employment injury or maternity.

Articles 9 and 10. Substitution of the annual leave by a cash payment and time and place when the annual leave shall be taken. Recalling that section 169 of the Labour Code, to which the Government refers in its report, does not address either the substitution of annual leave by a cash payment, or the time or place when the annual leave shall be taken, the Committee once again requests the Government to: (i) indicate the manner in which it is ensured that it is only in exceptional cases that the annual leave due under this Convention may be replaced by a cash payment at least equivalent to the remuneration provided for in Article 7; and (ii) indicate how it is ensured that seafarers are not required without their consent to take the annual leave due to them at a place other than that where they were engaged or recruited, whichever is nearer their home.

Article 12. Recall during leave. In the absence of a reply to its previous comment on this point, the Committee once again requests the Government to adopt the necessary measures to ensure that seafarers on annual leave can only be recalled in cases of extreme urgency and with due notice.

Part IV of the report form. Application in practice. The Committee requests the Government to provide information on the application of the Convention in practice, including extracts from reports of the inspection services and information on the number of seafarers covered by the measures giving effect to the Convention, as well as, where appropriate, the number of violations of the relevant provisions reported by maritime labour inspectors and the measures taken as a result.

Finally, the Committee takes this opportunity to recall that most of the provisions of this Convention have been reproduced, without significant changes, in Regulation 2.4, Standard A2.4 and Guideline B2.4 of the MLC, 2006, and that accordingly ensuring compliance with Convention No. 146 will facilitate the implementation of corresponding provisions of the MLC, 2006. The Committee requests the Government to keep the Office informed of any new developments relating to the process of the ratification and effective implementation of the MLC, 2006.

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

Article 4, paragraph 1, of the Convention. The Committee notes that under section 76 of the Labour Code a worker is entitled to 15 days of paid leave for every six months of continuous service with the same employer. Referring also to its previous comments, the Committee asks the Government to clarify whether a seafarer has the right to claim a proportionate part of his annual leave before the expiration of the six-month period.

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

The Committee notes the Government's reply to its previous comments and the adoption of Law No. 185/1996 on the Labour Code.

Article 3, paragraph 3, and Article 4, paragraph 1, of the Convention. The Committee notes that under section 76 of the Labour Code a worker is entitled to 15 days of paid leave for every six months of continuous service with the same employer. The Committee notes that while this would result in 30 days of paid leave per year in conformity with the Convention, the requirement that this is due on completion of six months of continuous service with the same employer would be contrary to the requirements of Article 4, paragraph 1, of the Convention regarding the right to proportional leave for periods of service that are less than the required period for full entitlement. The Committee recalls the Government's earlier indication that proportionate leave is granted whatever the reason for termination of employment. It wishes to refer to Article 1 of the Convention which does not limit laws and regulations as the only means of giving effect to the provisions of the Convention. The Committee would be grateful if the Government would provide particulars, such as terms of collective agreements, that in practice ensure respect for entitlement to proportionate paid leave as required by Article 4, paragraph 1, of the Convention.

Article 5, paragraph 3, and Article 6. The Committee notes that section 79 of the new Labour Code provides for work interruptions due to sickness, leave of absence or for any other valid reasons not to be deducted from the total period of service. The Committee would be grateful if the Government would indicate whether the terms "any other valid reasons" in section 79 of the new Code include absence from work to attend an approved maritime vocational training course (which is referred to as an obligation of the worker in section 18(h) of the new Labour Code), injury as opposed to illness, maternity, temporary shore leave granted to a seafarer while on articles, and compensatory leave of any kind. Please indicate if other arrangements such as applicable collective agreements otherwise give effect to the requirements of these Articles of the Convention and communicate copies of such agreements if any.

Article 7, paragraph 1. Please indicate whether under sections 78 and 84 of the new Code the cash equivalent of any part of the remuneration which is paid in kind is included in the normal salary paid during annual leave.

Article 7, paragraph 2. Please indicate the provision of the laws or regulations or terms of applicable collective agreement that ensure that the normal remuneration due to a seafarer is paid in advance as required by this paragraph of Article 7.

Article 9. Please indicate how it is ensured that it is only in exceptional cases that the substitution of annual leave due under this Convention may be made by cash payment at least equivalent to the remuneration provided for in Article 7.

Article 10, paragraphs 2 and 3. Please indicate how it is ensured that seafarers are not required to take annual leave at a place other than where they were engaged or recruited, whichever is nearer their home, unless the seafarers consent or except under the provisions of a collective agreement or of national laws or regulations.

Article 12. Please indicate how it is ensured that a seafarer on annual leave shall not be recalled unless in cases of extreme emergency and with due notice.

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

In its previous comment, the Committee noted the Government's intention to include in the new Labour Code provisions to implement the Convention; it appeared that specific provisions for seafarers' annual leave were not considered appropriate, since the numbers involved were so small. In its latest report, the Government states that a committee of lawyers of the Ministry of Construction and Transport and the Ministry of Labour is being set up to draft specific provisions to deal with the Committee's comments as to Articles 3(3), 4(1), 5(3), 6, 7(2) and (3), 9, 10(2) and (3) and 12 of the Convention. The Committee hopes appropriate measures will now be taken to ensure the Convention is duly applied, and that the next report will include details.

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

Further to its previous comments, the Committee notes that, because the maritime sector is so small in Nicaragua, there is no specific legislation and there are no collective agreements relating to the Convention. The Government states that in practice 30 days' annual leave is granted in accordance with the Labour Code, and proportionate leave is given whatever the reason for termination of employment. It indicates that the Statute on Rights and Guarantees of Nicaraguans has been repealed from January 1987.

The Committee notes with interest the Government's indication that a new Labour Code will make the necessary reforms to implement the present Convention. It recalls that in its earlier comments it raised certain aspects of the Labour Code which did not seem to comply with Articles 3(3), 4(1), 5(3), 6, 7(2) and (3), 9, 10(2) and (3) and 12 of the Convention. The Committee hopes the new Labour Code, together with other appropriate measures, will ensure the Convention is duly applied on these points. It hopes also that the Government will make all appropriate use of the Office's advisory services in this connection.