Solicitud directa (CEACR) - Adopción: 2018, Publicación: 108ª reunión CIT (2019)

Convenio sobre las trabajadoras y los trabajadores domésticos, 2011 (núm. 189) - Nicaragua (Ratificación : 2013)

Otros comentarios sobre C189

Solicitud directa

2018
2017

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Article 1(c) of the Convention. Definition of domestic work and domestic worker. The Committee notes, in response to its previous comments, the Government’s indication that the labour legislation is applicable to all domestic workers, including occasional domestic workers. However, the Committee observes that section 145 of the Labour Code defines domestic workers as those who “perform household tasks for an individual or family in their home and in a regular and continuous manner, without the service provided directly generating any profit or business for the employer”. The Committee observes that the inclusion of the terms “regular and continuous” in the definition of domestic worker could give rise to interpretations under which workers who perform domestic work only occasionally or sporadically are not considered to be domestic workers. Consequently, the Committee requests the Government to adopt the necessary measures to amend section 145 of the Labour Code so that domestic workers who perform domestic work occasionally or sporadically, but on an occupational basis, are explicitly included in the definition of domestic work.

Article 3(2)(c). Abolition of child labour. In its previous comments, the Committee requested the Government to supply information on the measures adopted with a view to eliminating child labour in domestic work, including the number of inspections conducted in households where young persons are engaged in domestic work. The Committee notes the Government’s indication that 78 special inspections were conducted in households where young persons worked in 2017. However, the Committee observes that the Government has not specified which of these inspections were conducted in the domestic work sector. Nor does it indicate the sanctions imposed in cases in which domestic child labour was identified. The Committee also notes the Government’s indication that awareness-raising action has been carried out, which included the education of 1,807 young domestic workers in labour rights. The Committee requests the Government to continue providing detailed information on the measures adopted or envisaged with a view to guaranteeing in practice the abolition of child domestic labour. The Committee also requests the Government to provide updated information on the number of inspections conducted in homes where cases of child domestic labour are identified, their outcomes and the penalties imposed.

Article 5. Abuse, harassment and violence. In response to its previous comments, the Committee notes the Government’s indication that complaints of harassment, abuse or violence filed by domestics workers are dealt with by the General Labour Inspectorate by means of an immediate assistance, verification and resolution process. The Committee observes that under section 174 of the Penal Code perpetrators of sexual harassment incur a prison sentence of one to three years; and section 17(c) and (p) of the Labour Code establish the requirement for the employer to refrain from mistreating and prejudicing the dignity and decency of workers, and ensuring that workers are not victims of harassment or sexual blackmail. In this regard, the Committee refers to its 2014 comments on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in which it recalled the need to amend the Labour Code so that the provisions relating to sexual harassment expressly cover both quid pro quo and hostile working environment sexual harassment and to establish adequate penalties for the offenders, whether they are employers or workers. The Committee refers to its comments on Convention No. 111, particularly those in which it once again requested the Government to take the necessary measures to include in the Labour Code a definition of sexual harassment that expressly covers both quid prod quo and hostile working environment sexual harassment covering all aspects of employment and occupation, as well as a mechanism that provides compensation for victims and penalties for offenders. The Committee also requests the Government to supply statistical information, disaggregated by sex, on the number of complaints of harassment, abuse and violence in the context of domestic work presented before the various competent bodies, their outcomes, the penalties imposed on the perpetrators and the compensation awarded.

Articles 6 and 17(2) and (3). Fair terms of employment and decent living conditions. Labour inspection. Access to household premises. In its previous comments, the Committee requested the Government to indicate whether any monitoring mechanism or procedure existed to ensure the conformity of the working conditions of adult domestic workers with the national legislation. The Committee also requested the Government to provide information on the manner in which effect is given to Article 17 of the Convention. The Committee notes the Government’s reference to the technical guide for labour inspection, which is the methodological tool used to conduct labour inspections. The Government indicates that the guide provides information to labour inspectors on the procedures to be followed to monitor compliance with labour legislation in the domestic work sector. The Committee requests the Government to provide information on the specific measures adopted or envisaged with regard to labour inspection that take due account of the specific characteristics of domestic work, including information on the training of labour inspectors and statistical information on the number of labour inspections in the sector, the number of violations detected and the penalties imposed.

Article 7. Information on terms and conditions of employment. In response to the Committee’s previous comments, the Government once again refers to section 24(b) of the Labour Code, which establishes that employment contracts for domestic work may be concluded verbally. The second subparagraph of this section provides that the employer must supply a written record within the first three days of employment containing the starting date of the employment relationship, the service to be provided or the work to be carried out and the agreed wages. The Government indicates that section 24 of the Labour Code does not deprive domestic workers of the rights arising out of the services they provide and labour legislation, as it is the employers’ responsibility to comply with these standards. However, the Committee observes that the written record does not include information on all of the elements set out in Article 7 of the Convention. In this respect, the Committee recalls that, under Article 7 of the Convention, 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 in accordance with national laws, regulations or collective agreements, in particular: (a) the name and address of the employer and of the worker; (b) the address of the usual workplace or workplaces; (c) the starting date and, where the contract is for a specified period of time, its duration; (d) the type of work to be performed; (e) the remuneration, method of calculation and periodicity of payments; (f) the normal hours of work; (g) paid annual leave, and daily and weekly rest periods; (h) the provision of food and accommodation, if applicable; (i) the period of probation or trial period, if applicable; (j) the terms of repatriation, if applicable; and (k) terms and conditions relating to the termination of employment, including any period of notice by either the domestic worker or the employer.” Lastly, the Committee notes the Government’s indication that programmes to promote and disseminate labour rights have been implemented at the national level as well as a free call centre that provides employment guidance to the whole population. The Committee encourages the Government to adopt the necessary measures to ensure that domestic workers are informed of their conditions of employment in an appropriate, verifiable and easily understandable manner and preferably, where possible, through written contracts in accordance with national laws or collective agreements, including at least all of the elements set out in Article 7 of the Convention. The Committee suggests that the Government might consider the possibility of developing a model employment contract for domestic work, in consultation with the most representative employers’ and workers’ and the representative organizations of domestic workers and their employers, where such organizations exist.

Article 8. Migrant domestic workers. In response to its previous comments, the Committee notes the Government’s indication that there is currently no treaty, agreement or procedure in place for the recruitment of Nicaraguan migrant domestic workers abroad. The Government adds that there is only a migration management procedure for Nicaraguan workers who emigrate to Costa Rica to engage in temporary work in the agricultural, agro-industrial and construction sectors. The Committee urges the Government to adopt the necessary measures to guarantee that Nicaraguan migrant domestic workers who are recruited in one country for domestic work in another receive a written job offer or contract of employment that is enforceable in the country in which the work is to be performed, addressing the terms and conditions of employment referred to in Article 7, prior to crossing national borders for the purpose of taking up the domestic work to which the offer or contract applies (Article 8(1)). The Committee also requests the Government to take measures to cooperate with other States to ensure the effective application of the provisions of this Convention to migrant domestic workers (Article 8(3)). Lastly, it requests the Government to indicate the conditions under which migrant domestic workers are entitled to repatriation on the expiry or termination of the employment contract for which they were recruited (Article 8(4)).

Article 9. Freedom to reach agreement with the employer on whether to reside in the household. Keeping possession of travel and identity documents. In its previous comments, the Committee requested the Government to provide information on the measures taken to ensure that domestic workers are free to reach an agreement with their employer on whether or not to reside in the household where they work. The Committee also requested the Government to provide information on the measures taken or envisaged to ensure that migrant domestic workers have the right to keep in their possession their travel and identity documents. In this regard, the Government indicates that migrant domestic workers who work outside the country are under the jurisdiction of the laws of the country in which they are working. The Government adds that there are no monitoring and enforcement mechanisms in place to guarantee the labour and migration rights of such workers. The Committee notes that the Government has not provided information on the measures adopted to guarantee that domestic workers are free to reach agreement with their employer on whether to reside in the household in which they work. The Committee reiterates its request to the Government to provide information on the measures taken to ensure that domestic workers are free to reach agreement with their employer on whether to reside in the household where they work. The Committee also requests the Government to indicate the measures adopted or envisaged to guarantee that those workers who reside in the household in which they work, including migrant workers from other countries, are not obliged to remain in the household or with household members during periods of daily and weekly rest or annual leave, and are entitled to keep in their possession their travel and identity documents.

Article 10. Equal treatment between domestic workers and workers generally in relation to normal hours of work. In its previous comments, the Committee requested the Government to provide information on the normal hours of work of adult domestic workers, overtime compensation and paid annual leave to ensure equal treatment between domestic workers and workers generally. It also requested 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, so that these periods are regarded as paid hours of work. The Committee notes the Government’s reference to section 51 of the Labour Code, which establishes for all workers a maximum working day of eight hours a day and 48 hours a week; a maximum night period of seven hours a day and 42 hours a week; and mixed day and night hours of seven-and-a-half hours a day and 45 hours a week. However, the Committee notes that section 147 of the Labour Code provides that domestic workers shall be entitled to an absolute minimum of 12 hours of daily rest, including a continuous period of eight hours at night. The Committee observes that this provision could be interpreted to mean that the maximum working day for domestic work is 12 hours, as domestic workers are only entitled to 12 hours of rest, rather than the maximum working day of eight hours for all other categories of workers. Regarding overtime compensation, the Government refers to section 62 of the Labour Code, which provides that “hours of overtime and those during which the worker works on a day of rest or compensation for any reason, shall be paid 100 per cent more than the agreed amount for the respective normal working day”. Lastly, the Committee observes that the Government has not indicated how it 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 to respond to possible calls, so that these periods are regarded as hours of paid work. The Committee requests the Government to take the necessary measures to amend section 147 of the Labour Code to guarantee equal conditions in terms of normal hours of work between domestic workers and workers generally. The Committee also reiterates its request to the Government to provide information on how it 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, so that these periods shall be regarded as hours of paid work.

Article 12(2). Payment in kind. In response to the Committee’s previous comments, the Government refers to section 86 of the Labour Code, which prohibits payment in kind. The Government also indicates that the labour legislation recognizes domestic workers’ right to receive the minimum wage established by the minimum wage board along with quality food and a room, when the domestic worker sleeps in the house where he or she works. The Committee notes that section 146 of the Labour Code provides that “the remuneration of workers in domestic service comprises, in addition to the payment in money, quality food and the provision of a room, when the worker sleeps in the house in which he or she works. For the payment of benefits, food and accommodation provided to the domestic worker shall be taken into account with an estimated value equivalent to 50 per cent of the wages received in money.” In this regard, the Committee recalls that Paragraph 14(d) of the Domestic Workers Recommendation, 2011 (No. 201), provides that “when provision is made for the payment in kind of a limited proportion of remuneration, Members should consider ensuring that, when a domestic worker is required to live in accommodation provided by the household, no deduction may be made from the remuneration with respect to that accommodation, unless otherwise agreed to by the worker”. The Committee requests the Government to take the necessary steps to amend section 146 of the Labour Code with a view to ensuring that, when a domestic worker is required to live in the employer’s household, no deduction may be made from the remuneration with respect to that accommodation, unless otherwise agreed to by the worker.

Article 13. Right to a safe and healthy working environment. In its previous comments, the Committee requested the Government to indicate whether the provisions of Title V of the Labour Code on occupational safety and health and occupational risks are applicable to domestic workers. It also requested the Government to indicate the measures adopted, with due regard for the specific characteristics of domestic work, to ensure the occupational safety and health of domestic workers. The Committee notes the Government’s indication that the employer is required to register the domestic worker with the social security system and, in the case of non-compliance, shall assume responsibility for any common illness of the domestic worker contracted as a result of contact with the employer or persons living in the house. However, the Committee notes that the Government has not indicated whether the provisions of Title V of the Labour Code are applicable to the domestic work sector. The Committee therefore reiterates its request to the Government to indicate whether the provisions of Title V of the Labour Code on occupational safety and health and occupational risks are applicable to domestic workers. The Committee also once again requests the Government to provide information on the measures adopted or envisaged, with due regard for the specific characteristics of domestic work, to ensure the occupational safety and health of domestic workers.

Article 14. Social security. The Committee notes the Government’s reiteration that, under the Labour Code, employers are required to register domestic workers with the social security scheme. The Government reports that, since 2012, the Nicaraguan Social Security Institute (INSS), through the General Directorate of Registration, has developed technical advice and assistance plans for domestic workers with the aim of guaranteeing their inclusion in the compulsory social security scheme to ensure that those workers and their family units are protected against the social contingencies of invalidity, old age, death, occupational risks, sickness and maternity. The Committee also notes with interest the various measures adopted to: promote the registration of domestic workers in the social security scheme, such as visits to homes to verify and/or properly enrol domestic workers in social security; guidance and education for domestic workers and their employers regarding the requirements and rights of social security; simplification of the monthly wage reporting process that the employer must undertake for the monthly payment of worker–employer contributions; and the promotion and delivery of insurance and benefit cards for domestic workers, which can be presented to health-care institutions to receive health care or claim maternity allowance. The Government indicates that, as a result of such actions, the number of insured domestic workers increased from 4,666 in December 2011 to 27,221 in May 2018. The Committee requests the Government to continue providing detailed information on the measures adopted with a view to promoting the registration of domestic workers in the social security system. The Committee also requests the Government to continue supplying statistical information, disaggregated by sex, on the number of domestic workers registered with the social security scheme.

Article 15. Private employment agencies. In its previous comments, the Committee requested the Government to provide information on the measures taken or envisaged to provide adequate protection for, and prevent abuses against, domestic workers recruited or placed in Nicaragua by private employment agencies. It also requested the Government to supply information on the consultations held with the most representative organizations of employers and workers with regard to the implementation of measures envisaged to protect domestic workers recruited or placed by private employment agencies against abusive practices. The Committee also requested 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 requested the Government to provide information on the number of offences detected and other penalties imposed. In this regard, the Committee notes the Government’s general indication in its report that labour inspections are conducted in the various private employment agencies in collaboration with the Employment Directorate and the General Labour Inspectorate in order to prevent wrongdoing and abuses by private employment agencies. The Committee therefore reiterates its request to the Government to provide information on the measures taken or contemplated to provide adequate protection in practice for, and prevent abuses against, domestic workers recruited or placed in Nicaragua by private employment agencies. It also reiterates its request to the Government to supply information on the consultations held with the most representative organizations of employers and workers with regard to the implementation of such measures. It also reiterates its request to the Government to indicate whether any mechanism or procedures for the investigation of complaints have 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 once again requests the Government to provide statistical information on the number of offences detected and penalties imposed.

Article 16. Access to the justice system. In response to its previous comments, the Committee notes the Government’s indication that the Ministry of Labour has established an immediate assistance, verification and resolution process for complaints of violations of the labour rights of domestic workers. The Government indicates that through this procedure assistance is provided to domestic workers during the inspection, conciliation and judicial process. The Committee requests the Government to provide detailed information on how this process functions in practice.