Hours of Work (Industry) Convention, 1919 (No. 1) - Nicaragua (RATIFICATION: 1934)

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In order to provide an overview of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work in industry) and 30 (hours of work in commerce and offices) in the same comment.

Article 2(b) of Convention No. 1 and Article 4 of Convention No. 30. Variable distribution of hours of work throughout the week. In relation to its previous comments, the Committee notes the Government’s indications in its reports that: (i) in the 2018–21 period, more than 50,000 labour inspections were carried out and 1,092 internal regulations were authorized, in order to ensure compliance with the relevant labour legislation in force; (ii) section 63(3) of the Labour Code provides that, by mutual agreement, the eight hours of actual daily work may be distributed in discontinuous periods, with the aim of providing workers with a day or part of a day as rest in addition to the seventh-day rest prescribed in section 64 of the Code; and (iii) if the parties agree to distribute weekly hours of work into longer working days, the working day agreed upon shall guarantee workers the right to enjoy their daily and weekly rest, in accordance with the provisions of the national legislation. The Committee notes that, in the event of variable distribution of hours of work throughout the week, section 63(2) of the Labour Code prescribes a daily limit on hours of work higher than that established in Article 2(b) of Convention No. 1. The Committee also recalls the Government’s indication that Judgment No. 1748 of 24 October 2012 of the Constitutional Division of the Supreme Court – which established that employers and workers can agree on a “four-by-four” work-week (that is, fours days of work followed by four days of rest), provided that the working week does not exceed 48 hours – has been considered as generally applicable (erga omnes), and so the Ministry of Labour must comply with it and respect the cases in which workers and employers agree to work according to this arrangement. In this regard, the Committee notes that, in authorizing the compressed work-week, the above-mentioned judgment does not establish daily limits on working hours, as required by both Conventions (one hour in excess of the normal eight hours, under Convention No. 1, and two hours in excess of the normal eight hours, under Convention No. 30). The Committee therefore requests the Government to indicate the manner in which it is ensured that the agreements concluded between employers and workers on the variable distribution of hours of work throughout the week are in strict conformity with the daily limits established in Article 2(b) of Convention No. 1 and Article 4 of Convention No. 30. The Committee also requests the Government to provide information on the above-mentioned agreements, where they exist, including the number of agreements and the maximum daily and weekly hours of work fixed by them.

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In order to provide an overview of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work in industry) and 30 (hours of work in commerce and offices) in the same comment.

Articles 3 and 6(1)(b) of Convention No. 1 and Article 7(2) of Convention No. 30. Exceptions to the limit on hours of work. In relation to its previous comment, the Committee notes that the Government does not provide any information in its report on section 57 of the Labour Code, which provides that work done outside normal working hours constitutes additional hours (overtime) but work done to rectify errors that can be attributed to the worker does not. The Committee recalls that the Conventions in question only allow exceptions to the limit on working hours: in case of accident, actual or threatened, force majeure, or urgent work to machinery or plant; in order to prevent the loss of perishable goods or avoid endangering the technical results of the work; in order to allow for special work such as stocktaking and the preparation of balance sheets, settlement days, liquidations, and the balancing and closing of accounts; and in order to deal with cases of abnormal pressure of work. The Committee therefore urges the Government to take the necessary steps to ensure that the above-mentioned section is amended, in order to guarantee that the national legislation only allows the limits on daily and weekly hours of work to be exceeded in the circumstances specified in the Conventions, and to provide information on the measures taken in this regard.

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

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Article 2(b) of the Convention. Compressed work week. The Committee recalls its previous comment in which it requested the Government to provide additional information on the situation of an enterprise operating on the basis of a compressed work week (that is four consecutive days of work with daily shifts of 11 hours and 40 minutes, followed by four days of rest), the legality of which was recently examined by the Supreme Court. In its latest report, the Government refers to two decisions of the Constitutional Division of the Supreme Court, Decision No. 1748 of 24 October 2012 and Decision No. 1054 of 20 June 2012, which both upheld the legality of the “four-by-four” or compressed work-week arrangement as long as the overall weekly limit of 48 hours is not exceeded. More concretely, the Supreme Court recognized the legality of flexible working days that exceed eight hours per day provided that they do not total more than 48 hours in a week, taking also into account economic and social realities, the benefits for employers and workers and the general interest of the country. The Government further explains that the Court’s decision seems to have been based on the fact that the compressed working time arrangement in question was a “discontinuous” working day – within the meaning of sections 55 and 63 of the Labour Code – due to the fact that employees were entitled to a 35-minute rest. The Government indicates that following the decision of the Supreme Court, it intends to authorize any similar arrangements that may be concluded between employers and workers.

While noting the Government’s explanations, the Committee is obliged to recall that the Convention lays down a double limit of eight hours in a day and 48 hours in a week and that these limitations should be viewed as strict maximum limits which are not liable to variation or waiver at the free will of the parties. The Committee wishes also to refer to paragraph 213 of the 2005 General Survey on hours of work in which it concluded that “compressed work-week arrangements, where work is performed by two teams in 12-hour shifts, would appear to be incompatible with the requirements of both Conventions Nos 1 and 30, because the daily work may exceed the nine-hour and ten-hour limits prescribed by these two Conventions”. The Committee recognizes that modern flexible working time arrangements tend to call into question the relevance of the restrictions imposed by the Convention on the maximum duration of daily and weekly working hours but wishes to emphasize the importance of reasonable limits and protective safeguards in devising such flexible arrangements. The Committee accordingly hopes that in authorizing compressed work week or other similar arrangements, the Government will pay special attention to ensure that the implementation of such arrangements does not contravene core standards prescribed by the Convention.

Articles 3 and 6(1)(b). Additional hours. The Committee previously noted that the rectification of mistakes for which a worker is held responsible under section 57 of the Labour Code is not a valid ground for authorizing exceptions to the normal limits on hours of work. The Committee accordingly requests the Government to take the necessary steps to amend the legislation in such a way as to respect the requirements of the Convention on this point, and more generally, ensure that overtime work – whether voluntary or not – is only authorized in the limited cases prescribed by the Convention.

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Article 1 of the Convention. Scope of application. The Committee notes that section 61(e) of the Labour Code excludes workers employed in the land transport sector from the limitations on working hours laid down by the Code. It draws the Government’s attention to the fact that, in conformity with Article 1, paragraph 1(d), the Convention applies, among other sectors, to the transportation of persons or goods by road. The Committee therefore requests the Government to send copies of the provisions applicable to this category of workers with regard to working hours. Moreover, the Committee notes that, under the terms of section 61(f) of the Labour Code, the provisions of the Code regarding working hours are not applicable to workers who are not subject to such rules by virtue of the nature of the work which they perform. The Committee requests the Government to indicate the types of work covered by this exclusion.

Article 2(b). Unequal distribution of weekly working hours. The Committee notes that section 63 of the Labour Code authorizes, by means of an agreement between the employer and workers, the distribution of weekly working hours in such a way that hours of work are longer on certain days to enable workers to have the whole or part of an additional weekly rest day. In this case, the number of overtime hours may not exceed two per day. However, the Committee draws the Government’s attention to the provisions of Article 2(b) of the Convention, which states that if the hours on one or more days of the week are less than eight, the eight-hour limit may be exceeded on the remaining days of the week, provided that this limit is not exceeded by more than one hour per day. The Committee hopes that the Government will take steps as soon as possible to limit daily working hours to a maximum of nine hours per day in the context of the application of section 63 of the Labour Code.

Article 6(a). Intermittent work. The Committee notes that, under section 61(c) of the Labour Code, persons performing work which is intermittent or merely requires their presence – as defined on a case-by-case basis by the Ministry of Labour – are not subject to the limitations on working hours imposed by the Code. The Committee requests the Government to indicate whether the Ministry of Labour has issued any regulations to implement this provision and, if so, to provide copies. If intermittent work is indeed defined on a case-by-case basis, the Government is requested to indicate the criteria used for this purpose and to supply specific examples.

Articles 3 and 6, paragraph 1(b). Additional hours. The Committee notes that, under section 57 of the Labour Code, additional hours undertaken by workers to rectify mistakes for which they are held responsible are not considered as overtime and are therefore not subject to the limits laid down by the Code and do not qualify for a higher rate of pay. It draws the Government’s attention to the fact that the rectification of mistakes for which a worker is held responsible does not form part of the special cases where the Convention allows the normal limits on working hours, namely eight hours per day and 48 hours per week, to be exceeded. It hopes that the Government will take the necessary steps to amend the legislation in such a way as to respect the requirements of the Convention on this point.

Furthermore, the Committee notes that section 59 of the Labour Code states that workers are not required to carry out overtime work, except in certain cases such as the prevention or elimination of the consequences of disasters or accidents likely to be detrimental to production or the provision of services. It recalls that the Convention imposes limits on overtime work, irrespective of whether or not workers have given their consent in this regard. Apart from the special cases covered by Article 3 of the Convention, which largely correspond to those provided for by section 59 of the Labour Code, overtime work in the context of temporary exceptions is permitted, in conformity with Article 6, paragraph 2, of the Convention, to deal with exceptional cases of pressure of work. The Committee hopes that the Government will adopt legal provisions stating explicitly that overtime work, whether or not it is voluntary, is only authorized in the cases provided for by the Convention.

Moreover, the Committee notes that section 60 of the Labour Code governs the performance of a double day’s work by a worker in cases involving the unforeseen absence of other employees whose work may not be interrupted. It requests the Government to supply further information on the types of work defined as work which may not be interrupted.

Part V of the report form. The Committee requests the Government to give a general description of the way in which the Convention is applied in practice, including, for example, extracts from reports of the inspection services indicating the number and nature of contraventions reported, and further details on the number of workers covered by the legislation on working hours.

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The Committee notes with interest the information in the Government's report on the application of the Convention. With reference to its observation of 1993, it notes that Act No. 185 of 30 October 1996 makes several amendments to the Labour Code, one of which is that a maximum of three hours per day and nine hours per week of overtime has been set (section 58), which constitutes real progress in the application of Articles 6 and 7 of the Convention. The Committee also notes the detailed information supplied by the Government in accordance with Part VI of the report form and asks it to continue to supply such information to allow the Committee better to assess how effect is given to the provisions of the Convention.

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The Committee notes with regret that the Government's report contains no information.

Further to the comments it has been making for many years, the Committee recalls that any amendments to the legislation should determine, after consultation with the employers' and workers' organizations, the circumstances in which additional hours may be worked and the maximum number of additional hours authorized, in conformity with Article 6, paragraphs 1(b) and 2, of this Convention, and Article 7, paragraphs 2(c), 2(d) and 3, and Article 8 of the Hours of Work (Commerce and Offices) Convention (No. 30), 1930.

It also asks the Government to provide information in its next report on the manner in which the Convention is applied providing, for example, as required by point VI of the report form, extracts from reports of the inspection services and particulars of the number of additional hours worked in the cases provided for in the Convention, together with any other useful information.

It asks the Government to keep it informed of any developments in this respect.

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The Committee notes that the Government's report contains no reply to previous comments. It must therefore repeat its previous observation which read as follows:

The Committee has noted the information provided by the Government in its report, which, in particular, indicates that a preliminary draft revision of the legislation was under consideration on the basis of the comments of the Committee.

The Committee trusts that the draft will be adopted in the near future and that it will lay down, after consultation with the employers' and workers' organisations concerned, the circumstances in which additional hours may be worked and the maximum number of additional hours authorised, in conformity with Article 6, paragraphs 1(b) and 2 of the Convention.

The Committee requests the Government to provide in its next report detailed information on any developments in relation to this question.