Guarding of Machinery Convention, 1963 (No. 119) - Nicaragua (RATIFICATION: 1981)

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In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on occupational safety and health, the Committee considers it appropriate to examine Conventions Nos 13 (white lead), 45 (underground work (women)), 115 (radiation), 119 (guarding of machinery), 127 (maximum weight), 136 (benzene) and 139 (occupational cancer) together.

Application in practice of Conventions Nos 13, 115, 119, 127, 136 and 139.The Committee notes the general and sectoral information provided by the Government in its report on the number of violations identified during inspections and follow-up inspections, as well as the corrective action taken by them in respect of occupational safety and health conditions between 2018 and the first semester of 2021. The Committee requests the Government to continue providing information on the application in practice of the ratified occupational safety and health Conventions, including the number, nature and cause of occupational accidents and diseases notified, and information on the inspection activities and violations identified, as well as the penalties imposed.

A.Protection against specific risks

1.White Lead (Painting) Convention, 1921 (No. 13)

Article 7 of the Convention. Statistics with regard to lead poisoning among working painters. The Committee notes that the Government indicates in its report that there are no recorded cases of lead poisoning in the Ministry of Health statistics, and that no cases of lead poisoning have been recorded in Nicaragua since the end of the 1980s. While noting the Government’s statement that workers at risk of lead poisoning are treated and diagnosed by clinics attached to the National Social Security Institute, the Committee requests the Government to continue providing information on all cases of lead poisoning recorded.

2.Guarding of Machinery Convention, 1963 (No. 119)

Articles 2 and 4 of the Convention. Prohibition of the sale, hire, transfer in any other manner and exhibition of machinery of which the dangerous parts are without appropriate guards. Obligation of the Government to take measures to ensure that effect is given to these Articles of the Convention. The Committee notes the Government’s indication that the clauses governing purchase, sale, transfer and hiring of machines are established by the persons carrying out these operations in accordance with trade, commercial and civil law.

With respect to the protective guards over dangerous parts of machinery, the Committee notes that the provisions of The Ministerial Standard on Basic Occupational Safety and Health Provisions Applicable to Electrical Installations and Equipment of 1999, facilitated by the Government, on the design of and protection provided on machines for lifting and conveying, are referenced in sections 43 (switch requirement), 44 (polarization requirement) and 45 (grounding conductor requirement). While noting the Government’s indications regarding trade, commercial and civil law, the Committee requests the Government to indicate the specific relevant provisions in these laws that prohibit the sale, hire, transfer in any manner and exhibition of machinery of which the dangerous parts are without appropriate guards, in conformity with Article 2(1) and (2) of the Convention.

Article 15. Appropriate inspection services and penalties. With reference to its previous comments, the Committee notes the provisions on safety requirements for lifting and conveying machinery established in sections 19, 20, 21 (requirements for the use of lifting machines), 46, 47, 48 (verification of the good condition of the machinery) and 49 (safety of lifting equipment and its operation) of the Ministerial Standard of 1999, and in sections 3.1.7 (separation between machines) and 3.4.1 (requirements for the operation of hoisting apparatus) of the Technical Guide on Health and Safety Inspection. The Committee takes note of this information, which addresses its previous request.

3.Maximum weight Convention, 1967 (No. 127)

Article 7 of the Convention. Young persons and women. With regard to its earlier comments, the Committee notes the Government’s indication that compliance with Ministerial Agreement No. JCHG-08-06-10, of 2010, on the prohibition of hazardous work for young persons and the list of types of hazardous work, of which paragraph (e) prohibits physical loads for children under the age of 18 years, is ensured through the implementation, evaluation and monitoring of special care programmes for young workers. The Government reports that to protect the rights of young workers, compliance with the Ministerial Agreement is monitored by the Departmental Labour Inspectorate. Section 1 of the Ministerial Decision provides that inspectors shall be empowered to take cognizance of violations and impose penalties in conformity with the provisions of Section 6 of Act No. 474 of 2003 amending Chapter VI, part one, of the Labour Code.

The Committee further notes that the Government reports on the formulation, in April 2018, of a Decision of the National Occupational Safety and Health Council – pending publication – which establishes the maximum weights recommended for men and women (section 16) and prohibits workers under the age of 18 years from the manual transport of loads the weight of which involve physical effort and activity beyond the worker’s psychophysical strength (section 24). The Government indicates that the said Decision amends the Ministerial Decision on Occupational Safety and Health of 2002 with respect to the maximum load that can be transported manually by a worker. The Committee requests the Government to indicate whether the Decision of the National Occupational Safety and Health Council, amending the Ministerial Decision on Occupational Safety and Health as regards the maximum load that can be transported manually by a worker, has been published and is now in force. Regarding the assignment of young workers to the manual transport of loads, the Committee refers to its comments under the Worst Forms of Child Labour Convention, 1999 (No. 182).

4.Benzene Convention, 1971 (No. 136)

Articles 2 and 4 of the Convention. Use of harmless or less harmful substitute products instead of benzene or products containing benzene. Prohibition of the use of benzene and of products containing benzene in certain work processes, including its use as a solvent or diluent. With reference to its previous comments, the Committee notes that the Government reports that while the use of benzene is not currently restricted or prohibited, the only use of benzene approved by the National Commission for the Registration and Monitoring of Toxic Substances (CNRCST) is for chemical analysis in laboratories. The Government adds that in order to import benzene, the enterprise or natural person must be registered and hold a valid importer’s licence with the CNRCST and must also complete an importation permit each time the product enters the country. The Committee further notes that the Government reports that it does not have a list of work in which the use of benzene is prohibited. While taking note of the information provided by the Government on the use of benzene for the sole purpose of chemical analysis carried out in laboratories and with reference to its comments on Article 2 of the Occupational Cancer Convention, 1974 (No. 139), the Committee requests the Government to provide information on the measures taken to ensure the adoption of laws and regulations that guarantee the prohibition of the use of benzene or products containing benzene in certain work, and that the prohibition includes the use of benzene and of products containing benzene as a solvent or diluent, except where the process is carried out in an enclosed system or where there are other equally safe methods of work.

Article 6. Maximum concentration of benzene in the air in places of employment which shall not exceed a maximum ceiling value of 25 parts per million (80 mg/m3). With reference to its earlier comments on the measures adopted to ensure that the concentration of benzene in the air of places of employment does not exceed the maximum ceiling, the Committee notes that the Government refers to section 114 of Act No. 618 of 2007, the General Occupational Safety and Health Act, which establishes the obligation to assess occupational health hazards for workers in places of employment. The Committee observes that under section 144 of Act No. 618 of 2007, such assessment shall be undertaken at least once yearly, and shall be updated in various cases, for example when there are changes in processes, or in the choice of chemicals and other substances, affecting the degree of exposure of the workers to such agents. The Committee also notes that section 130 of Act No. 618 of 2007 provides that where the maximum ceiling is exceeded, the employer shall rectify the installations or adopt the necessary technical measures to eliminate or reduce the chemical contaminants in the workplace. The Committee takes note of this information, which addresses its previous request.

Article 14(a) and (b). Measures necessary to give effect to the Convention. Authorities responsible for ensuring compliance. The Committee notes the information provided by the Government on the measures adopted by the CNRCST. It notes that Act No. 941 of 2016, establishing the National Commission for the Registration and Monitoring of Toxic Substances, which abrogates Decree No. 04-2014 of 2014, establishing the National Commission for the Registration and Monitoring of Toxic Substances, mandates the CNRCST to undertake the regulation of chemical substances for industrial use such as benzene, and to formulate policies, action and activities related to the appropriate handling of chemical substances, for the purpose of monitoring and preventing diseases caused by exposure to hazardous and toxic substances (Article 4).

The Committee also notes that the CNRCST has an inspection unit which is responsible for undertaking inspections of laboratories that use benzene in various chemical analyses. The Committee requests the Government to indicate the regulations adopted in respect of benzene and products containing benzene, as well as the policies, action and activities concerning benzene since the creation of the National Commission for the Registration and Monitoring of Toxic Substances, under Act No. 941 of 2016.

5.Occupational Cancer Convention, 1974 (No. 139)

Articles 1 and 3 of the Convention. Determination of carcinogenic substances and agents and establishment of an appropriate system of records. With reference to its previous comments, the Committee notes that the Government indicates that the prohibition or restriction of agricultural, domestic and professional pesticides is effected through a thorough assessment of their environmental, sanitary and agricultural effects and of those of substitute substances, carried out by the CNRCST. The Government adds that the decision to prohibit or restrict is made public by announcement in the Official Gazette.

With regard to measures for the protection of workers, the Committee notes that the CNRCST undertakes surveillance and control of enterprises that use potentially carcinogenic substances and chemicals in general. The Committee notes, in response to its previous comments regarding the National Registry of Pesticides and Toxic, Hazardous and Other Similar Substances, that the Government reports that the Registry is still operating, under the aegis of the CNRCST, which has been monitoring authorized industrial chemical substances since 2014. While taking note of the procedure for the prohibition and restriction of pesticides, the Committee requests the Government to indicate the decisions determining the carcinogenic substances or agents for which exposure at work is prohibited or subject to authorization or control. The Committee also requests the Government to continue providing information on the measures taken to protect workers from the risks of exposure to carcinogenic substances or agents, as well as on the development and operation of the National Registry of Pesticides and Toxic, Hazardous and Other Similar Substances with regard to workers exposed to carcinogenic substances.

Article 2(2). Duration and degree of exposure. With reference to its previous comments, the Committee notes that the Government provides no information on the provisions concerning the exposure limit values established by the Ministry of Labour in conformity with section 129 of Act No. 618 of 2017, the General Occupational Safety and Health Act. The Committee urges the Government to provide detailed information on the provisions concerning the exposure limit values established by the Ministry of Labour under the abovementioned section 129.

Article 4. Obligation to inform workers of the dangers involved in working with carcinogenic substances. With reference to its previous comments, the Committee notes the obligations concerning workers’ training set out in the following sections of Act No. 618 of 2007: 19 (information provided through training programmes), 20 (frequency of the programmes), 21 (content of the programmes), 22 (qualifications of persons responsible for the training activities), and 176 (information on the hazards of application and use of pesticides and chemical substances). The Committee takes note of this information, which addresses its previous request.

B.Protection in specific branches of activity

Underground Work (Women) convention, 1935 (No. 45)

The Committee recalls that at its 334th Session (October-November 2018), the Governing Body of the ILO decided, on the recommendation of the Standards Review Mechanism Tripartite Working Group, to classify Convention No. 45 as an outdated standard, and to place on the agenda of the 112th Session (2024) of the International Labour Conference an item concerning the abrogation of the Convention. The Governing Body also requested the Office to ensure follow-up for Member States currently bound by Convention No. 45 to promote ratification of up-to-date occupational safety and health instruments, in particular the Safety and Health in Mines Convention, 1995 (No. 176), and to launch a campaign to promote ratification of that Convention. The Committeeencourages the Government to give effect to the decision taken at the 334th Session of the Governing Body (October-November 2018) approving the recommendations of the Standards Review Mechanism Tripartite Working Group, and to consider ratification of more up-to-date instruments in this area.

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Articles 2 and 4 of the Convention. Prohibition of the sale, hire, transfer in any other manner and exhibition of machinery of which the dangerous parts are without appropriate guards. Obligation of the Government to take measures to ensure that effect is given to these Articles of the Convention. With reference to its previous comments, the Committee notes the Government’s indications that those who purchase, sell, transfer and hire machinery establish the terms of such transactions in accordance with trade, commercial and civil law, but notes that the Government does not provide specific information on the sections of this legislation that give effect to the Convention. The Committee emphasizes that, although these transactions are carried out between individuals, it is up to the Government to take legislative or other equally effective measures necessary to ensure compliance with the Convention. The Committee therefore once again requests the Government to provide detailed information on the sections of the legislation that give effect to each paragraph of Articles 2 and 4 of the Convention, including information regarding the obligations of the vendor, the person letting out on hire or transferring the machinery, or the exhibitor, and on the prohibition contained in Article 2(1) of the Convention. The Committee also once again asks the Government to provide information on the application of these provisions in practice.

Competent authority and requirements. In its previous report, the Government referred to the ministerial regulations on the minimum safety and health requirements relating to work equipment published on 9 April 1996, section 3(a)(2) of which provides that work equipment made available to workers shall meet the safety requirements established by the competent administrative authority for the trade of work equipment. The Committee noted that this provision refers to “the safety requirements established by the competent administrative authority”. It requested the Government to provide a copy of the regulations on the safety requirements to which the Government refers in its report and information on the authorities responsible for monitoring the application of those regulations. Noting that the Government did not provide the information requested, the Committee once again requests it to provide information on the safety requirements established by the competent administrative authority to which the abovementioned ministerial regulations refer and to provide information on the authorities responsible for monitoring the application of those regulations.

Article 15(1). Enforcement measures and penalties. The Committee reiterates its request to the Government to provide information on the application of Article 15(1) of the Convention and in particular in relation to Articles 2 and 4.

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Legislation. The Committee notes with interest Act No. 618, the General Occupational Safety and Health Act, published in La Gaceta, Diario Oficial, No. 133, of 13 July 2007, and Decree No. 96-2007 issued under the Act. It welcomes the fact that section 5 of the Act provides that “the standards, decisions, and instructions prepared and published by the Ministry of Labour shall comply with the principles of preventive policies set out in the present Act, and in the international Conventions of the International Labour Organization (ILO) and the Labour Code”. Observing that these instruments appear to facilitate the ratification of the Occupational Safety and Health Convention, 1981 (No. 155), its Protocol of 2002, and the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187), the Committee draws the Government’s attention to paragraphs 295 and 296 of its General Survey on Convention No. 155. The Committee invites the Government to provide information on any developments in this respect.

Articles 2 and 4 of the Convention. Prohibition of the sale, hire, transfer in any other manner and exhibition of machinery of which the dangerous parts are without appropriate guards. With reference to its previous comments, the Committee notes that the Government refers to the Ministerial Standard on minimum health and safety provisions for equipment used at work, published on 9 April 1996, section 3(a)(2) of which provides that the equipment used for work that is placed at the disposal of workers shall comply with the safety requirements established by the competent administrative authority for work equipment to be freely commercially available. The Committee notes that this provision refers to “the safety requirements established by the competent administrative authority”, but that the Government’s report does not indicate these requirements. As a result, the Committee is not able to ascertain whether the safety requirements established by the competent authority give effect to Articles 2 and 4 of the Convention. The Committee therefore requests the Government to provide copies of any provisions that specify the “safety requirements” mentioned by the Government in its report and information on the competent authorities which monitor their application. The committee also requests the Government to provide detailed information on the measures taken to give effect to each paragraph under Article 2 of the Convention and Article 4, including information regarding the obligations of the vendor, the person letting out on hire or transferring the machinery in any other manner, or the exhibitor; and the prohibition contained in Article 2(1) of the Convention. The Committee also asks the Government to provide information on the application of Articles 2 and 4 of the Convention in practice.

Articles 6, 7 and 11. Use of machinery any dangerous part of which is without appropriate guards. Prohibition of the use of machinery without guards. The Committee notes the information provided by the Government indicating that Annex 1 to the Ministerial Standard referred to above, in paragraphs 6–11 respecting “Protection measures and safety guards on equipment used for work” and Annex 2 of the Ministerial Standard set out in law these Articles of the Convention.

Article 15, paragraph 1. Measures of application and penalties. In its previous comments, the Committee requested the Government to indicate the measures taken to ensure the effective application of the provisions of the Convention. The Committee notes that the Government refers to sections 322 and 326 of the General Occupational Safety and Health Act and observes that these provisions refer to the obligations of the employer, as subsection 1 refers to the obligations and penalties deriving from the provisions of the Convention. The Committee wishes to point out that certain provisions of the Convention, such as Articles 2 and 4, establish obligations for other persons, such as the vendor, the person letting out on hire or transferring the machinery in any other manner, the exhibitor and their respective agents. The Committee therefore reiterates its request to the Government to provide information on the application of Article 15, paragraph 1, of the Convention, particularly in conjunction with Articles 2 and 4 of the Convention.

Article 15, paragraph 2. The Committee requests the Government to provide information on the activities of the labour inspection services in relation to Articles 6 and 7 of the Convention.

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The Committee notes the information provided by the Government in its latest reports for the years 2002 and 2004, and the ministerial standards and resolutions provided with these reports.

1. The Committee notes that, in its report for the period which ended in May 1997, the Government referred to many provisions of the national legislation of a general nature and which therefore give partial effect to the provisions of the Convention. For example, under paragraph 6, Annex I, of the Ministerial Standard on minimum health and safety provisions for equipment used at work, of 4 March 1996, where the moving parts of equipment (machines, apparatus, etc.) give rise to the risk of aggressive mechanical contact, they shall be equipped with guards or devices which prevent access to dangerous areas; and, in accordance with Annex II of the Ministerial Standard on minimum health and safety provisions for equipment used at work, equipment (including machines) shall not be used without the protective guards provided for the operation concerned (paragraph 1), it shall be ascertained that the protective devices and conditions for use are adequate before using equipment (paragraph 2) and the appropriate precautions shall be adopted and individual protective devices used when accessible dangerous elements cannot be totally protected. The Committee notes these provisions. It requests the Government to indicate the provisions of the national legislation or equally effective measures which ensure, in compliance with the Convention, the prohibition of the sale, hire, transfer in any other manner or exhibition (Articles 2 and 4) and the use (Articles 6 and 7) of machinery any dangerous part of which is without appropriate guards.

2. Article 11. The Committee notes that sections 4 and 5 of the Ministerial Standard on minimum health and safety provisions for equipment used at work, of 1992, provide, among other measures, for the obligation of workers to use equipment under conditions and in the manner which complies with specific instructions. The Committee recalls that, under this provision of the Convention, no worker shall use, or be required to use any machinery without the guards provided being in position. The Committee requests the Government to indicate the measures adopted to give full effect to this Article of the Convention.

3. Article 15, paragraph 1. The Committee requests the Government to indicate the measures taken to ensure the effective application of the provisions of the Convention, including the appropriate penalties.

4. The Committee requests the Government to provide information on the programmes relating to the application of the Convention to which it refers in its report.

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The Committee notes that, 15 years after ratification, national legislation contains no provisions giving effect to most of the provisions of the Convention and that the Government continues to refer, in a general manner, to some preliminary draft texts which take into account the Committee's observations.

The Committee notes that in its report for the period ending 30 June 1992, the Government referred to a number of activities carried out by the General Directorate of Occupational Health and Safety for the purpose of identifying hazardous situations and promulgating control measures. The Committee trusts that in the framework of these activities the body in question will be able to take specific measures to formulate provisions which give effect to the Convention.

The Committee hopes that the Government will do everything possible not to postpone the adoption of the measures needed to guarantee application of the Convention. The Committee requests the Government to keep it informed of progress towards this target.

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In the comments that it has been making since 1984 the Committee has noted that the provisions of the Labour Code contain measures of a general order which do not give effect to most of the provisions of the Convention. Over the same period, the Government has referred to implementing regulations which are to be adopted to guarantee the application of the Convention, but which have not yet been adopted.

In its last report the Government states, on the one hand, that implementing regulations which give effect to the provisions of the Convention have never existed and that it has no knowledge of draft legislation being prepared for that purpose. On the other hand, the Government states that it has received technical advice from the Ibero-American Cooperation Institute which has in part been related to the preparation of draft ministerial decisions and agreements to regulate those aspects of safety and health questions which have not yet been regulated.

The Committee notes that, 12 years after its ratification, the national legislation does not yet contain provisions which give effect to most of the provisions of the Convention and that, once again, the Government refers in a general manner to "preliminary draft texts which have taken into account the Committee's comments".

The Committee requests the Government to take the necessary measures to give effect to the Convention and requests the Government to supply information on the progress achieved in this respect.

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With reference to its previous comments, the Committee notes that there is no explicit provision in the national legislation to give effect to the Convention.

The Government expressed its intention of preparing draft regulations to apply the whole of the Convention. In its last report, the Government states that it has sent copies of the regulations that have been adopted. The Committee notes that they were not attached to the report.

The Committee requests the Government to supply a copy of these regulations with its next report.