Demande directe (CEACR) - adoptée 1993, publiée 80ème session CIT (1993)

With reference to its previous direct request, the Committee notes the information supplied by the Government in its latest report.

1. Part V (Annual holidays with pay), Article 42 of the Convention. The Committee noted from the Government's report that a new Labour Code was to be examined by the National Assembly at its forthcoming sessions, which should make it possible to eliminate any ambiguities in the legislation, with regard to the entitlement of a worker terminating his employment to the proportion of the wage due to him in respect of holidays, whatever the circumstances and the reason for the termination of the employment relationship. The Committee also noted that legal machinery exists whereby the worker may claim payment of this wage with free legal assistance from the Ministry of Labour. The Committee hopes that the new Labour Code, with appropriate provisions, will be adopted in the near future and again asks the Government to provide a copy of it as soon as possible.

2. Article 74, paragraph 1(c). The Committee notes the provisions of sections 20, 21, 22 and 23 of the Labour Inspectors' Regulations under which labour inspectors are authorized to bring defects or abuses to the notice of the competent authorities. The Committee asks the Government to state under which provisions labour inspectors are authorized to bring to the attention of the competent authorities defects and abuses not specifically covered by the Labour Inspectors' Regulations.

Article 76. The Committee notes the Government's reference in its report to the provisions of article 27, part 1, article 82(6) and article 86 of the Political Constitution and again requests it to provide detailed information on the conditions of service of labour inspectors, indicating the measures which are in force to guarantee that inspectors enjoy stability of employment and are independent of changes of government and of improper external influences.

Article 79(a). The Committee noted that section 30(3) of the Labour Inspectors' Regulations prohibits inspectors from accepting gifts from employers or workers in the region under their supervision. The Committee recalled that the scope of the provisions of the Convention is broader and prohibits them from having any direct or indirect interest in the undertakings under their supervision. The Committee observes from the information in the Government's report that there has been no progress in this matter. The Committee again expresses the hope that measures will be taken to give effect to these provisions of the Convention and asks the Government to report on any progress made in this connection.

Article 84. The Committee again requests the Government to supply copies of periodical reports on the inspection of plantations, which were not enclosed with the last report.

Part XII (Housing), Articles 85 to 88. The Committee again requests the Government to indicate the measures taken to give effect to these provisions of the Convention.

3. The Committee notes the Government's statement in reply to its previous comments to the effect that the previous comments referred to situations which existed under the previous government and which have now been remedied. The Committee asks the Government to refer to the following comments which it has made on the application of other Conventions:

Part IV (Wages), Articles 26 to 35. See the comments made in 1992 on the application of Convention No. 95, as follows:

Further to its previous direct request, the Committee notes the Government's report and the draft Labour Code communicated to the International Labour Standards Department of the ILO by way of consultation. It would point out the following:

1. The definition of "wages" under section 67 could be improved by including the essentials of the definition given by Article 1 of the Convention according to which the term "wages" means "remuneration or earnings, however designated or calculated, capable of being expressed in terms of money and fixed by mutual agreement or by national laws or regulations, which are payable in virtue of a written or unwritten contract of employment by an employer to an employed person for work done or to be done or for services rendered or to be rendered".

2. In order to give effect to Article 15(c) of the Convention, penalties in relation to certain measures for protection of wages should be prescribed in application of section 71, for example, penalties for payment in the form of promissory notes, vouchers or coupons.

3. No provision in the draft Code gives effect to the following provisions of the Convention: (a) prohibition of payment in the form of liquor of high alcoholic content or of noxious drugs (Article 4(1)); (b) prohibition for the employer to limit in any manner the freedom of the workers to dispose of their wages (Article 6); (c) prohibition of the measures to coerce the workers to make use of works stores or services operated in connection with an undertaking (Article 7(1)); (d) prohibition of any deductions from wages with a view to ensuring a direct or indirect payment made by a worker to an employer or to an intermediary for the purpose of obtaining or retaining employment (Article 9); and (e) provision on the final settlement of wages upon the termination of a contract of employment (Article 12(2)).

The Committee hopes that the Government will reconsider the draft Labour Code taking into account the above remarks so that the draft, when adopted, will give effect to the relevant provisions of the Convention, and requests the Government to continue reporting on the progress made in this connection.

Part VIII (Workmen's compensation), Article 51. See the comments made in 1991 on the application of Convention No 12.

Part IX (Right to organize and collective bargaining). See the comments made in 1992 on the application of Convention No. 98, as follows:

The Committee takes note of the Government's report and observes that it contains information about compliance with the recommendations made by the Commission of Inquiry appointed in accordance with article 26 of the ILO Constitution to consider the complaint filed against Nicaragua concerning Conventions Nos. 87, 98 and 144.

The Committee takes due note that the Government indicates that, taking into account the observations of the Committee of Experts, the Commission of Inquiry and ILO advisers, it has prepared a draft Labour Code. In addition, with regard to tripartite consultations provided for in Convention No. 144, the Government states that extensive recourse to tripartism in different labour activities took place.

In this connection the Committee reminds the Government of its observations concerning the need to repeal Decree No. 530 of 24 September 1980, section 1 of which subjects collective agreements to the prior approval of the Ministry of Labour before they can come into force; concerning the need to promote collective bargaining; and to the effect that the authorities should refrain from any intervention or remove any obstacle that may restrict the free conclusion of collective agreements at different levels. In addition the Committee reminds the Government that, so far as successive interventions by the public authorities in wage negotiations are concerned, persuasion is preferable to dictation; it asks the Government to be good enough to indicate in its next report the measures that exist to establish the autonomy of the parties in procedures for bargaining on wage increases.

The Committee asks the Government to send it a copy of the draft Labour Code referred to. The Committee expresses the firm hope that at its next session it may be able to record tangible results in the matter of bringing the law into conformity with the Convention, and that the future Labour Code will embody the recommendations made by the Commission of Inquiry in its report.

Part X (Freedom of association). See the comments made in 1992 on the application of Convention No. 87, as follows:

The Committee takes note of the Government's report and observes that it contains information concerning compliance with the recommendations made by the Commission of Inquiry appointed under article 26 of the ILO Constitution to examine the complaint against Nicaragua concerning the application of Conventions Nos. 87, 98 and 144.

With regard to the information given in connection with paragraph 541 of the report of the Commission of Inquiry (amendment and updating of the Police Functions Act, the Police Code and the Code of Criminal Procedure), the Committee notes with interest that the National Assembly has promulgated Act No. 124 of 25 July 1991 on the reform of criminal procedure, which makes local judges competent to try and punish the perpetrators of minor criminal offences and district judges to try the perpetrators of offences that carry more severe penalties than correctional penalties, but provides that they may not pronounce sentence until a jury has delivered its verdict. The Committee takes note of the Government's statement that it does not propose to promulgate legislation on social communications since there is complete and unrestricted freedom to receive and disseminate information without limitation.

The Committee further notes with satisfaction, with regard to the information given by the Government in connection with the recommendation of the Commission of Inquiry concerning expropriations (paragraph 542 of the report of the Commission of Inquiry) that the properties have been returned to the leaders of COSEP.

The Committee takes due note that the Government has prepared a draft Labour Code taking into account the observations of the Committee of Experts, of the Commission of Inquiry and of the ILO advisers. As regards tripartite consultations provided for in Convention No. 144, the Committee notes the Government's statement that it has had extensive recourse to tripartism in different labour activities.

In this connection the Committee reminds the Government of its observations concerning certain provisions of or omissions from the legislation that are not in accordance with the Convention. The Committee had referred in particular to the need to:

- guarantee, by a specific provision, the right of public servants, self-employed workers in the urban and rural sectors and persons working in family workshops to associate for the defence of their occupational interests;

- abolish the requirement of an absolute majority of the workers of an enterprise or work centre for the formation of a trade union (section 189 of the Labour Code);

- amend the provision on the general prohibition of political activities by trade unions (section 204(b) of the Code);

- amend the obligation placed on trade union leaders to present to the labour authorities the registers and other documents of a trade union on application by any of the members of that union (section 36 of the Regulations on Trade Union Associations);

- lift the excesssive limitations on the exercise of the right to strike, requiring a majority of 60 per cent for calling a strike, prohibiting strikes in rural occupations when the produce may be damaged if it is not immediately available, and enabling the authorities to end a strike that has lasted 30 days through compulsory arbitration if no settlement has been reached after the date authorised for the strike (sections 225, 228 and 314 of the Code).

The Committee asks the Government to send it a copy of the draft Code in question. Since the questions raised are of great importance and it has been pressing them for many years, the Committee expresses the firm hope that at its next session it will be able to take note of tangible results with regard to the reconciliation of the legislation with the Convention and that the recommendations made by the Commission of Inquiry in its report (paragraphs 543 and 544) will be embodied in the future Labour Code.