Medical Examination of Young Persons (Industry) Convention, 1946 (No. 77) - Nicaragua (Ratification: 1976)

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

Article 2 of the Convention. Medical examination for admission to employment of children and young persons under 18 years of age. In its previous comments, the Committee noted that, under section 66(a) of the Ministerial Decision of 24 November 2000, an employer may not authorize children or young persons under 16 years of age to perform tasks that involve the use of pesticides. The Committee pointed out that it can be inferred from this that young persons over 16 years of age may carry out tasks involving the use of pesticides or other chemicals. The Committee noted that Ministerial Agreement No. VGC-AM-0020-10-06, issuing a list of dangerous jobs applicable in Nicaragua, enumerates in detail the types of work that are prohibited for minors under 18 years of age and includes jobs that involve exposure to chemical contaminants. The Committee asked the Government to take the necessary steps to harmonize the provisions of the Ministerial Decision of 24 November 2000 on the employment of young persons over 16 years of age in jobs that involve the use of pesticides or other chemicals with those of Ministerial Agreement No. VGC-AM-0020-10-06 issuing the list of dangerous jobs applicable in Nicaragua.

The Committee notes with interest the adoption of Ministerial Agreement No. JCHG-08-06-10 published in Official Gazette No. 158 of 19 August 2010, which prohibits minors under 18 years of age from carrying out dangerous jobs (section 1). Work involving exposure to physical, chemical and biological contaminants (section 5) is among the types of work that are prohibited. As regards the ambiguity between the recent law and the provisions of the Ministerial Decision of 24 November 2000 on the employment of young persons over 16 years of age in jobs that involve the use of pesticides or other chemicals, the Committee takes due note of the Government’s explanations. The Committee notes that section 1 of Ministerial Agreement No. JCHG-08-06-10 instructs all labour inspectorate departments to be aware of the prohibition in question and requires them to sanction this contravention accordingly. The Committee notes the Government’s explanation that this section means that Ministerial Agreement No. JCHG-08-06-10 takes primacy over any other law which might derogate therefrom. In addition, the Committee notes the Government’s indication that, in case of doubt over the interpretation of the Agreement, section 2 provides that it should be applied and interpreted in favour of the minor under 18 years of age, thereby echoing a fundamental principle of the Labour Code.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report. It requests the Government to provide information on the following point.

Article 2 of the Convention. Medical examination for admission to employment of children and young persons under 18 years of age. In its previous comments, the Committee noted that, under section 66(a) of the Ministerial Decision of 24 November 2000, an employer may not authorize children or young persons under 16 years of age to perform tasks that involve the use of pesticides. The Committee pointed out that it can be inferred from this that young persons over 16 years of age may carry out tasks involving the use of pesticides or other chemicals. The Committee notes that Ministerial Agreement No. VGC-AM-0020-10-06, issuing a list of dangerous jobs applicable in Nicaragua, enumerates in detail the types of work that are prohibited for minors under 18 years of age and includes jobs that involve exposure to chemical contaminants. In order to ensure that the law is unambiguous on this point, the Committee would be grateful if the Government would take the necessary steps to harmonize the provisions of the Ministerial Decision of 24 November 2000 on the employment of young persons over 16 years of age in jobs that involve the use of pesticides or other chemicals with those of Ministerial Agreement No. VGC-AM-0020-10-06 issuing the list of dangerous jobs applicable in Nicaragua.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report. It notes with interest the adoption of General Act No. 618 on occupational health and safety and Decree No. 96-2007 issuing the regulations thereto. It observes that both contain provisions that apply to medical examination.

Article 2 of the Convention. Medical examination for admission for employment of children and young persons under 18 years of age. In its previous comments, the Committee noted that it could be inferred from section 46 of the Ministerial Decision of 24 November 2000 that young persons over 16 years of age may carry out tasks involving the use of pesticides or other chemicals. It observed that the medical examinations established by sections 46 and 48 of the Ministerial Decision of 24 November 2000 deal only with workers whose tasks involve the handling of pesticides or other chemicals, and that under section 50 of the Ministerial Decision, the examination does not take place until 90 days after the work begins. The Committee reminded the Government that the medical examinations established in Article 2, paragraph 1, of the Convention are intended to determine whether children and young persons are deemed fit for the tasks they will have to perform and that the examinations must therefore be conducted before admission to employment and regardless of the type of tasks involved, and asked it to take the necessary steps to give effect to the Convention on this point. The Committee notes with satisfaction that Ministerial Agreement No. VGC-AM-002-10-06 of 27 October 2006 issuing a list of dangerous jobs applicable in Nicaragua prohibits the employment of persons under 18 years of age in tasks that involve exposure to chemical pollutants including pesticides or other chemicals.

The Committee raises other matters in a request addressed directly to the Government.

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

In its previous comments, the Committee noted with regret that, 28 years after its ratification, the Convention was still not effectively applied in Nicaragua. In this respect, the Committee notes the information provided by the Government in its report and, in particular, that section 78 of the Ministerial Decision of 28 July 2000 on health in industrial workplaces prohibits the employment of minors and young persons (children between the ages of 14 and 18 years - section 130 of the Labour Code) in work involving exposure to physical, chemical and biological pollutants. It also notes that this Ministerial Decision applies to all work centres, both public and private, in which work of an industrial, agricultural, commercial or any other nature is performed. The Committee notes that the Ministerial Decision of 28 July 2000 only covers certain of the categories of work specified in Article 1, paragraph 2(b) and (c), of the Convention. Furthermore, the Committee once again notes that the Ministerial Decision of 24 November 2000 on safety and health in relation to the use, handling and application of pesticides and other agrochemicals does not appear to give full effect to the following provisions of the Convention.

1. Article 2. Medical examination for fitness for employment of children and young persons under 18 years of age. In its previous comments, the Committee noted that, under the terms of section 66(a) of the Ministerial Decision of 24 November 2000, employers may not authorize children or young persons under 16 years of age to perform work involving the use of pesticides. The Committee also noted that, in accordance with the Ministerial Decision of 24 November 2000, employers have to ensure that systematic occupational medical examinations (pre-employment, periodical and readmission) are carried out where workers are exposed to pesticides or other agrochemicals. With regard to pre-employment medical examinations, section 48 provides that these are compulsory and must be carried out for all workers applying for jobs that involve the handling of pesticides or other agrochemicals. Furthermore, section 50 of the Decision provides that the medical examination shall be compulsory for each and every worker who has worked for 90 days continuously; in addition to the general examinations described above, this medical examination shall be carried out for workers exposed to pesticides and other agrochemicals.

The Committee reminds the Government that, a contrario, it may be deduced from section 46 of the Ministerial Decision of 24 November 2000 that the employment of young persons over 16 years of age is not prohibited on work involving the use of pesticides and other chemicals. In this respect, it once again reminds the Government that, under the terms of Article 2 of the Convention, children and young persons under 18 years of age shall not be admitted to employment by an industrial enterprises unless they have been found fit for the work on which they are to be employed by a thorough medical examination. In the first place, the Committee once again recalls that the medical examination, which is an absolute requirement for a child or young person under 18 years of age to be admitted to employment, does not only apply to workers whose work involves the handling of pesticides or other chemicals. Secondly, in view of the fact that, under the terms of section 50 of the Decision, the medical examination is not carried out until 90 days after the work begins, it is not a medical examination for admission to employment. The purpose of the medical examinations provided for in Article 2, paragraph 1, of the Convention is to determine whether children and young persons are fit for the work in which they are to be engaged and such examinations therefore have to be carried out before admission to employment and regardless of the type of work to be performed, and consequently for all activities covered by the definition "industrial undertakings" contained in Article 1, paragraph 2, of the Convention. The Committee therefore once again requests the Government to take the necessary measures to adopt regulations giving effect to the Convention.

2. Article 3 (periodical medical examinations until the age of 18 years) and Article 4 (medical examination and re-examinations for fitness for employment until the age of 21 years in occupations which involve high health risks).In its previous comments, the Committee noted that, under section 46 of the Ministerial Decision of 24 November 2000, periodical examinations, in the same way as medical examinations for fitness for employment, are only required in the event of the exposure of workers to pesticides and other agrochemicals. In this respect, the Committee reminded the Government that the medical examinations provided for in Article 3 have to be carried out at intervals of not more than one year irrespective of the work in question and that those provided for in Article 4 have to be required until at least the age of 21 years. The Committee once again urges the Government to take the necessary measures as soon as possible to give effect to these Articles of the Convention.

3. Finally, the Committee noted previously that the above Ministerial Decision contains no provisions on the application of the following Articles of the Convention: Article 5 (medical examination to involve no cost for the child or young person or his or her parents) and Article 6, paragraph 1 (appropriate measures for physical and vocational rehabilitation of children and young persons shown by medical examination to be unsuited to certain types of work or to have handicaps or limitations). The Committee once again urges the Government to take the necessary steps rapidly to adopt legislation giving full effect to the above provisions of the Convention. It also once again requests it to keep the Committee informed of any progress achieved in this respect and to send copies of the legislation when it has been adopted.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report and the information sent in reply to its previous comments. The Committee notes with regret that, 28 years after, the ratification is not effectively applied in the country. It would like to draw the Government’s attention to the following matters.

The Committee notes that, according to the Government, the Ministerial Resolution of 24 November 2000 on safety and health which applies to the use, handling and application of pesticides and other agro-chemicals, does not apply to agriculture. The Government specifies that according to article 1 of the Resolution, the latter’s objective and scope is the establishment of the minimum safety and health measures for the use and handling of pesticides that need to be adopted to ensure the health of workers in performing tasks that involve the use of pesticides and other agro-chemicals. According to article 2, the provisions of the Resolution apply to all workplaces, whether public or private, that carry on industrial work and that use and handle pesticides and other agro-chemicals. The Committee notes this information. It nonetheless considers that the Ministerial Resolution does not appear to give effect to the following provisions of the Convention.

1. Article 2 of the Convention. Medical examination of fitness for employment of young persons under 18 years of age. The Committee takes note of article 66(a) of the Ministerial Resolution of 24 November 2000 which forbids employers to allow minors of 16 years of age to work with pesticides. It observes that there is no provision preventing adolescents over 16 years of age from working with pesticides. The Committee recalls that, according to Article 2 of the Convention, persons under 18 years of age may not be admitted to employment in industrial undertakings unless they have been found fit for the work by a thorough medical examination. The Committee takes note of Chapter XI (articles 46 to 53) of the abovementioned Resolution which deals with medical supervision. It notes in particular that, according to article 46, employers must ensure that systematic occupational medical examinations (pre-employment, periodical and readmission) are carried out where workers are exposed to pesticides or other agro-chemicals. With regard to pre-employment medical examinations, article 48 provides that these are compulsory and must be undergone by all workers wishing to be employed in jobs that involve the handling of pesticides or other agro-chemicals. Furthermore, article 50 of the Resolution stipulates that "the medical examination shall be compulsory for each and every worker who has worked for 90 days continuously; and shall be carried out for workers exposed to pesticides and other agro-chemicals in addition to the general examinations described above". The Committee observes first, that the medical examination, the purpose of which is to set a requirement for the admission to employment of minors under 18 years of age, covers only workers who work with pesticides or other agro-chemicals. Secondly, since it is not carried out until 90 days after the work begins, the examination is not one for admission to employment. The Committee therefore reiterates that the medical examinations provided in Article 2, paragraph 1, of the Convention, seek to determine whether minors are fit for the work in which they are to be employed, and must be carried out regardless of the type of work. The Committee accordingly urges the Government to take the necessary steps to draft and adopt regulations on this matter.

2. Article 3 - periodical medical examinations until the age of 18 years, and Article 4 - periodical examination until the age of 21 years for work involving high health risks. The Committee notes that pursuant to article 46 of the Ministerial Resolution of 24 November 2000, occupational medical examinations, including periodical ones, are carried out only when workers are exposed to pesticides and other agro-chemicals. Consequently, the Committee reminds the Government that the medical examinations provided for in Articles 3 and 4 of the Convention should be carried out regardless of the type of work. The Committee urges the Government to take the necessary measures as soon as possible to give effect to these Articles of the Convention.

3. Lastly, the Committee notes that the abovementioned Ministerial Resolution contains no provisions on the application of the following Articles of the Convention: Article 5 (medical examination involving no expense for the child or young person or his parents), and Article 6, paragraph 1, (appropriate measures for vocational guidance and physical and vocational rehabilitation of minors shown by medical examination to be unsuited to certain types of work or to have handicaps or limitations). The Committee urges the Government to take the necessary steps in the near future to draft and adopt regulations that give full effect to the abovementioned provisions of the Convention. Please also keep the Committee informed on this matter and send copies of the regulations as soon as they are adopted.

[The Government is asked to reply in detail to the present comments in 2005.]

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information provided by the Government in reply to its previous comments. It notes the adoption of the Ministerial Resolution of 28 July 2000, respecting health in industrial workplaces and the adoption of the Ministerial Resolution of 24 November 2000 respecting safety and health in the utilization, handling and application of pesticides and other chemicals in agriculture. It notes that, according to the Government, the above texts give effect to the Convention.

With regard to the Ministerial Resolution applicable in agriculture, the Committee takes this opportunity to emphasize that, under Article 1, paragraph 1, read in conjunction with paragraph 3, of the Convention, the agricultural sector is not covered by the scope of the Convention. As a consequence, the Ministerial Resolution of 24 November 2000 respecting safety and health in the utilization, handling and application of pesticides and other chemicals in agriculture cannot serve as a legal basis for giving effect to the provisions of the Convention. The Committee also notes the provisions contained in the Ministerial Resolution of 28 July 2000 respecting health in industrial workplaces, Chapter VIII, sections 8-14 of which address health surveillance, and Chapter X, sections 17-20, which cover occupational medical examinations. The Committee notes that section 8, read in conjunction with section 18, provides for a compulsory prior medical examination for workers whose functions may expose them to specific risks adverse to their health. The Committee considers that the nature and scope of this text does not correspond to the requirements of the Convention, since Article 2, paragraph 1, of the Convention provides for medical examination of children and young workers as a condition of admission to employment generally and not only to those occupations considered dangerous to health.

The Committee also notes that, according to the Government, the Child Inspection Directorate is the body responsible for authorizing work by young persons between 14 and 16 years of age, with the agreement of their parents or guardians. Nevertheless, in no case does the Government refer to the obligation for such children and young persons to undergo a medical examination prior to their employment.

The Committee recalls that, under the terms of the Convention, children and young persons under 18 years of age shall not be admitted to employment by an industrial enterprise unless they have been found fit for the work on which they are to be employed by a thorough medical examination. This examination must also be carried out regularly up to the age of 18 years at intervals of not more than one year (Article 3, paragraphs 1 and 2). Furthermore, where the work performed involves high health risks, the medical examination for fitness for employment shall be required until the age of 21 years (Article 4). The Convention also provides that such medical examination shall not involve the child or young person or their parents in any expense (Article 5) and that appropriate measures shall be taken by the competent authority for vocational guidance and physical and vocational rehabilitation of children and young persons found by medical examination to be unsuited to certain types of work or to have physical handicaps or limitations (Article 6, paragraph 1).

It is not therefore through the adoption of laws or regulations which provide for medical examinations for adult workers who are to perform work involving hazards that the provisions of the Convention can be applied.

The Committee recalls that for many years it has been requesting the Government to take the necessary measures to give effect to the provisions of the Convention. It hopes that the Government will take the necessary measures on an urgent basis to give effect to the Convention. It suggests, where appropriate, that the Government might request the technical assistance of the ILO for this purpose.

[The Government is asked to reply in detail to the present comments in 2004.]

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s reports.

For many years, the Committee has been drawing the Government’s attention to the need to adopt provisions to ensure the application of the Convention. In its previous observation, the Committee noted the establishment of the National Occupational Safety and Health Council which is the Government’s advisory body on matters of protection and promotion of the health and safety of workers. The Committee notes that this Council is in process of adopting the necessary regulations to remedy the shortcomings in national legislation. It notes, however, that according to the latest information supplied by the Government, there have been no changes in legislation. The Committee is therefore bound to conclude that the National Occupational Safety and Health Council has not yet taken the measures needed to adopt regulations which would, inter alia, apply the provisions of the Convention. The Committee therefore urges the Government to take the necessary measures to ensure full conformity of national legislation with the prescriptions of the Convention.

[The Government is asked to report in detail in 2002.]

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information supplied by the Government in its report.

For several years the Committee has been drawing the Government's attention to the need to adopt specific standards to ensure the application of the provisions of the Convention. In its report for 1980, the Government indicated that a committee to amend the Labour Code would be undertaking the task of revising the Code so that it would give full effect to the provisions of the Convention. Thereafter, on several occasions, the Government stated its intention of having the Labour Code revised for the above-mentioned purpose. In 1991 the draft code was submitted to the International Labour Office for comment. The Committee noted the draft and pointed out that it contained no provisions giving effect to the Convention.

In its latest report the Government makes no mention whatsoever of the above draft and gives information on the adoption of the Ministerial Decision of 26 July 1993 on occupational safety and health, and on the establishment, pursuant to article 4(1) of the above Decision, of the National Occupational Safety and Health Council which is the Government's advisory body on matters of protection and promotion of the health and safety of workers. The above Council, after noting the Committee's comments will present recommendations, according to the Government, on measures to be taken.

The Committee notes this information with interest. It hopes that the measures in question will be taken shortly and that they will give full effect to the provisions of the Convention.

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

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

The Committee notes the information supplied by the Government in its last report.

In comments it has been making for a number of years, the Committee has drawn the Government's attention to the absence of specific laws or regulations to give effect to the provisions of the Convention.

The Government has stated on several occasions in its reports that it intends to revise the Labour Code to take account of the provisions of the Convention.

The Committee has noted the draft Labour Code which was sent to the International Labour Office for comment. The Committee notes that the above draft contains no provisions to give effect to the provisions of the Convention.

The Committee hopes that the Government will make every effort not to delay adoption of the necessary measures to give effect to the provisions of the Convention.

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

The Committee takes note of the information provided by the Government in its report which refers to the adoption of a resolution of 29 September 1988 of the General Directorate of Occupational Health and Safety, to regulate the work of children in the tobacco "pre-industrial sector", which contains a short provision concerning medical examinations for fitness for employment. Since the nature and scope of this text meet the requirements of the Convention only to a limited extent, the Committee notes with regret that the necessary legislative measures to give full effect to the Convention, and which have been the subject of its comments for several years, have still not been adopted. It trusts that the Government's next report will state that such measures have been adopted and will provide the information called for by the report form on the implementation of the provisions of the Convention.