Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Nicaragua (Ratification: 1967)

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The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2023, in which the IOE reiterates comments made in the discussion that was held in the Committee on the Application of Standards (the Conference Committee) in June 2023 on the application of the Convention by Nicaragua. The IOE also indicated that several employer delegates to the 2023 International Labour Conference would file a complaint under article 26 of the Constitution of the ILO, alleging non-compliance by Nicaragua with the present Convention, as well as with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The Committee notes that the said complaint was declared receivable by the Governing Body at its 349th Session (October–November 2023) and that its content would be examined by the Governing Body at its March 2024 session.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 111th Session , June 2023)

The Committee notes the detailed discussion held in the Committee on the Application of Standards (the Conference Committee) at the 111th Session of the International Labour Conference, June 2023, regarding the application of the Convention. The Conference Committee noted with deep concern the climate of violence, insecurity, and intimidation in the country, which is propitious for acts of discrimination in employment and occupation based on political opinion. The Conference Committee also noted the arbitrary detentions and the continuing reports of human rights violations and abuses, including gender-based discrimination. Taking account of the discussion, the Conference Committee urged the Government, in consultation with the social partners, to:

• take immediate measures to end the climate of violence, insecurity and intimidation in the country,
• adopt the necessary measures to eliminate discrimination in employment and occupation and provide adequate protection for workers in the event of discrimination on the basis of political opinion;
• refrain from discrimination on political grounds, ensure that no penalties are imposed and provide adequate protection in the event of discrimination on the basis of political opinion;
• provide adequate remedies including the restoration of citizenship and the return of seized assets to those who have been discriminated against on the grounds of political opinion;
• provide information on any additional measure taken to eliminate discrimination on political grounds and on the outcome of any investigation conducted into complaints made to the administrative or judicial authorities for acts of discrimination on the basis of political opinion;
• indicate the extent to which the provision of the Labour Code (section 17(p)) also covers the “hostile work environment”;
• provide details of any administrative complaint or legal action filed with the labour or criminal courts under the provisions of the Labour Code or Criminal Code in respect of sexual and quid pro quo harassment; as well as of the penalties imposed where complaints submitted to the Ministry of Labour are upheld and identified as acts of sexual harassment.

The Conference Committee also requested the Government to continue to:

• take all measures to ensure in practice the elimination of violence and harassment in the world of work and to provide information to the Committee of Experts on all measures adopted regarding sexual harassment, including awareness-raising and prevention;
• take specific measures in practice to protect indigenous and Afro-descendant peoples against racial discrimination in employment and occupation and provide information on all measures adopted or envisaged to protect indigenous and Afro-descendant peoples against racial discrimination in employment and occupation;
• provide information on the outcomes of the many actions taken relating to the national policy of equality of opportunity and treatment;
• provide information on the type of violations identified relating to the application of the Convention, the corrective measures introduced and the penalties imposed.

The Conference Committee reminded the Government that it can avail itself of ILO technical assistance, if needed. The Conference Committee requested the Government to report, in consultation with the social partners, on the progress achieved in the implementation of the Convention before 1 September 2023.

In its final statement before the Conference Committee (and in its report), the Government took note of the conclusions but considered that they had been adopted for politically motivated reasons and expressed concern in that regard. The Government stressed its rejection of interference, influence and unequal treatment and affirmed that in Nicaragua, women, indigenous persons, persons of African descent and all men and women without discrimination, are protected and safeguarded and that the country protects all Nicaraguan women and men seeking labour stability and peace with employment and dignified lives.

The Committee urges the Government to give effect to the recommendations of the Conference Committee without delay.

Article 1(1)(a) of the Convention. Discrimination on the basis of sex. Sexual harassment. In its report the Government provides the following statistical information: (1) in 2020, 44 cases of sexual and quid pro quo harassment were filed with the criminal courts (25 concluded); in 2021, 37 cases (30 concluded); in 2022, 58 cases (37 concluded) and up to March 2023, 15 cases (5 resolutions); (2) the Labour and Social Welfare Courts upheld a claim of sexual harassment against a domestic worker who had been harassed by another employee (judgement No. 447/2021); (3) the Ministry of Labour dealt with 272 complaints of mistreatment and harassment at work related to non-compliance with holiday schedules, payment of overtime hours, special permissions and verbal dismissals; (4) a total of 6,609 inspections were conducted regarding equality and non-discrimination at work; and (5) between January 2018 and March 2023, 13 complaints were lodged under the administrative procedure for addressing sexual and workplace harassment in the judiciary, two of which concerned acts of sexual harassment, one of which was resolved with the termination of the harasser’s employment contract. Regarding measures on awareness-raising and prevention of sexual harassment, the Government indicates that talks were held to provide training for courts, judges, directors, judicial and administrative staff from all circumscriptions, and that in 2022, a second round of training was completed for 2,710 judiciary officials, with a total of 74 workshops, aimed at preventing gender-based violence including both workplace and sexual harassment. While noting this information, the Committee observes that it does not make clear whether the cases of sexual harassment to which the Government refers include cases of sexual harassment derived from a “hostile work environment”, that is, behaviour that creates an intimidating, hostile or degrading environment for the person targeted. The Committee also notes that in its concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) noted with concern reports of cases of gender-based violence, including psychological violence by employers and sexual harassment against many women working in the textile industry and recommended that the Government reinforce labour inspections to investigate and adequately punish such cases (CEDAW/C/NIC/PCO/7-10, 30 October 2023, paragraphs 37 and 38).

The Committee requests the Government to: (i) take the measures required to prevent and address cases of sexual harassment in the textile industry without delay; (ii) provide detailed information on the application in practice of section 17(p) of the Labour Code to cover cases of sexual harassment derived from a “hostile work environment”; (iii) continue reporting on any administrative or judicial complaint lodged with the criminal or labour courts under the provisions of the Labour or Penal Codes in relation to sexual or quid pro quo harassment, and on the penalties imposed and redress provided accordingly; and (iv) report on all measures regarding awareness-raising and training on prevention and treatment of sexual harassment aimed at employers and workers and their respective organizations, as well as the persons and authorities that address such cases.

Discrimination on the basis of political opinion. The Committee notes that the Government provided information orally to the Conference Committee regarding the legislation of the country, including on section 27 of the Constitution, which prohibits, inter alia, discrimination based on political opinion. The Government indicates that Special Act No. 779 refers to the subject of political discrimination and that the organization of access to power is governed by the Constitution of Nicaragua, by the electoral process and by Electoral Act No. 331. In its report, the Government states that between January 2018 and March 2023, two cases of discrimination on the grounds of political opinion were filed with the Labour and Social Welfare Courts: (1) a case of discriminatory dismissal against a woman worker whose politics aligned with the Government in which the court found for the defendant and upheld her claim for compensation in its entirety (judgment No. 113/2019); and (2) a case of discrimination on grounds of political opinion against a woman worker, whose employment contract was affected by collective suspension measures, and in which the worker’s claim for reinstatement was upheld in its entirety (judgment 06/2020).

The Committee observes with deep concern that the reports of United Nations bodies highlight the continuation of serious political discrimination in the country. The Group of Human Rights Experts on Nicaragua (GHREN) in its report and detailed conclusions of March 2023, indicates that: (1) serious and systematic human rights violations and abuses have been committed against a sector of the Nicaraguan population, including violations of the right to participate in public affairs and of the freedoms of expression, opinion, association, assembly, conscience and religion; (2) such violations and abuses constitute a systematic and generalized attack against a civilian population through a discriminatory policy that includes the perpetration of human rights violations and crimes under international law and that have not only resulted in the destruction of the civic and democratic space in Nicaragua but, after thorough verification, indeed reveal that crimes against humanity continue to be perpetrated; (3) health workers who defied the order not to provide assistance to persons taking part in the 2018 demonstrations have suffered reprisals, including detention, threats, harassment and dismissal, while students and teachers considered as Government opponents were subject, inter alia, to arbitrary expulsion, cancelled scholarships, unfair dismissal and were refused matriculation; (4) there are reasonable grounds to believe that the authorities have sought to silence journalists, men and women, using, among other methods, physical aggression of journalists during their work, constant surveillance of media installations and of their points of access, restrictions and censure rendering the work of various media impossible, orders to shut down dozens of communication media, and numerous detentions and interrogations; and (5) there would have been various unfair dismissals of officials in the justice system, judges threatened with dismissal unless they confirm charges, pressure on public servants to pay membership dues to the Sandinista National Liberation Front (FSLN) under threat of harassment and reprisals, and career advances to reward judges responsible for cases against persons considered to be Government opponents (see document A/HRC/52/63, paragraphs 31, 123, 124 and 126; and document A/HRC/52/CRP.5, paragraphs 167–183, 412–424, 557, 637, 792, 796, 799, 801, 806, 811 and 853–862).

Similarly, the Committee observes that in resolution A/HRC/RES/52/2 of 3 April 2023, the United Nations Human Rights Council: (1) expressed grave concern at the “deterioration of democracy, the rule of law, the separation of the powers and the situation of human rights in Nicaragua, in particular with regard to the enjoyment of civil and political rights”; (2) expressed concern at the worsening restrictions on civic and democratic space and the repression of dissent in Nicaragua, which includes acts of intimidation, harassment and unlawful or arbitrary surveillance of persons who express views that are critical of the Government of Nicaragua”; (3) urgently called on the Authorities in Nicaragua “to cease immediately the use of arbitrary arrests and detentions, as well as of threats and other forms of intimidation or alternative measures of detention, as a means to repress dissent; and (4) called on the Government of Nicaragua to prevent and publicly condemn, investigate, punish and abstain from any acts of intimidation, harassment or reprisal against […] any individual critical of the Government, including against those who cooperate or seek to cooperate with international and regional bodies. By the same resolution, the Human Rights Council renewed the mandate of the GHREN for two years (A/HRC/RES/52/2, paragraphs 1, 2, 5, 12 and 15). The Committee also notes that in September 2023 the Chairperson of the GHREN gave an update to the Human Rights Council on the situation in the country, indicating that the general human rights environment had worsened and persecution of dissidents by the Government had escalated (see Human Rights Council press communiqué of 12 September 2023). Likewise, the Committee observes that the CEDAW, in its concluding observations, notes with concern the information about impunity for gender-based violence, including against women in detention for political reasons (CEDAW/C/NIC/PCO/7-10, of 30 October 2023, paragraph 27).

The Committee also notes with deep concern that the Inter-American Court of Human Rights (IAHCR), through its annual report for 2022 and various press communiqués from 2023, signalled a context of repression and human rights violations in the country (see IACHR Annual Report, 2022, Chapter IV.B, paragraphs 175 and 177; and press communiqués Nos 24/23, 67/23 and 123/23). The Committee notes that the IACHR and its Special Rapporteurship on Economic, Social, Cultural and Environmental Rights (REDESCA) expressed concern at the violations of the social security rights of Nicaraguans arbitrarily deprived of their nationality; according to information received, the State decided decision to remove all older persons who have been declared stateless and “traitors to the country” from the Nicaraguan Institute of Social Security (INSS) registry (see the REDESCA report on Poverty, Climate Change and Economic, Social, Cultural and Environmental Rights in Central America and Mexico, in the context of Human Mobility (“Pobreza, Cambio Climático y DESCA en Centro América y México, en el Contexto de Movilidad Humana”), and IACHR press communiqué 61/23 of 14 April 2023). The Committee also observes that during 2023 the Inter-American Court of Human Rights issued several resolutions on Provisional Measures related to the political situation in the country (such as the resolutions of 8 February, 22 March, 27 June and 25 September 2023).

The Committee emphasizes that protection against discrimination on the basis of political opinion in employment and occupation implies protection in respect of the activities of expressing or demonstrating opposition to established political principles and opinions, including political affiliation. The Committee affirms that the general obligation to conform to an established ideology or to sign an oath of political allegiance is discriminatory (General Survey on Equality in Employment and Occupation, 1988, paragraph 57, and General Survey on fundamental Conventions, 2012, paragraph 805). The Committee deplores that, according to United Nations bodies and the IACHR, human rights violations are continuing and worsening in the country. The Committee reiterates that a climate of violence, insecurity and intimidation as described by the United Nations bodies and the IACHR encourages the commission of serious acts of discrimination in employment and occupation against persons expressing their political opinion. In this regard, the Committee deplores the fact that the above institutions refer, inter alia, to acts that could amount to serious discrimination in employment and occupation against persons considered as in opposition to the Government, including acts of harassment and threats during, or in relation to the individuals’ employment, unfair dismissals, discrimination in appointments or promotions, preventing access to education and vocational training, and exclusion from social security systems.

The Committee strongly urges the Government to adopt all necessary measures to give effect to the Committee’s observations in respect of discrimination in employment and occupation and, in particular to eliminate discrimination on political grounds and provide appropriate protection to workers in cases of discrimination on the basis of political opinion. The Committee requests the Government to provide information on the result of all investigations concluded in relation to complaints lodged with the administrative or judicial authorities regarding acts of discrimination on the basis of political opinion.

Discrimination on the basis of race. Indigenous peoples. The Committee observes that in its oral statement to the Conference Committee, and also in its report, the Government notes that the Caribbean Coast is a priority area for human and socioeconomic development, including the creation of employment for indigenous families and families of African descent. Among the action adopted, the Government highlights: (1) the National Plan against Poverty for Human Development, 2021-2026, which includes, among other actions, teachers’ training as part of the bilingual intercultural transformation at pre-school, primary and secondary levels of education; strengthened partnerships and cooperative management and financing through a microcredit programme to promote entrepreneurship on the Caribbean coast; the promotion of agroforestry systems using crops strategically selected; assistance for families managing fowl and pigs for sustainable production; and by providing financial support for technology; and (2) the extension of technical education and training coverage through the technical colleges – Bluefields, Héroes y Mártires de Puerto Cabeza, Bernardino Díaz Ochoa de Siuna, Waspam, Corn Island, Bonanza and Rosita – where students of different ethnicities, and of African descent can study in their own languages. The Committee observes that the CEDAW, in its concluding observations, notes with concern that: (1) indigenous and Afro-descendant women face intersecting forms of discrimination and have limited access to education, employment and economic opportunities; (2) the impact of non-recognition of indigenous lands on the livelihoods of indigenous women; and (3) the limited access of indigenous women to higher education (CEDAW/C/NIC/PCO/7-10 of 30 October 2023, paragraphs 35 and 45). Likewise, the Committee notes from its report that the GHREN considers it important to further investigate violations and abuses committee against indigenous peoples and rural workers, and aspects related to corruption and the instrumentalization of the State apparatus, as well as the confiscation of assets (see document A/HRC/52/63, paragraph 9). The Committee requests the Government to: (i) report on any measures adopted to prevent and eliminate all forms of discrimination in employment and occupation against indigenous women; (ii) promote the access of indigenous women to education, employment and economic opportunities, including to the material resources required for the performance of their traditional occupations; and (iii) continue to report on any other measure adopted or envisaged to protect indigenous and Afro-descendent peoples against racial discrimination in employment and occupation.

Article 2. National policy on equality of opportunity and treatment. Public service and private sector. The Committee again requests the Government to provide information on the outcomes of the many actions taken relating to the national policy of equality of opportunity and treatment (for example, statistics on the labour market participation rate for women and men; the number of anti-discrimination activities undertaken; and the number of participants currently in training).

Enforcement. Labour inspection. The Government reports that of the 83,576 labour inspections conducted between 2018 and 2023, 8,854 (around 10 per cent) concerned offences related to equality and non-discrimination. The Committee requests the Government to provide detailed information on: (i) the prohibited grounds of discrimination alleged in the cases examined by the labour inspection, as well as any penalty imposed, and redress granted in cases that have been upheld; and (ii) any decision relating to cases of discrimination in employment and occupation adopted by the law courts.

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