Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 17) sur la réparation des accidents du travail, 1925 - Nicaragua (Ratification: 1934)

The Committee recalls that Nicaragua has ratified the Conventions relating to social security protection in the event of occupational accidents and illnesses (Conventions Nos 12, 17 and 18) and protection in the event of illness (Conventions Nos 24 and 25). In view of the fact that, according to the information contained in the Government’s reports, the problems raised by the application of these Conventions are essentially of the same kind, the Committee has seen fit to formulate a general comment concerning all the social security Conventions ratified by Nicaragua. The Committee has also used the information sent by the Government in its report supplied under article 19 of the ILO Constitution in the preparation of the General Survey on social security instruments, and also the information sent by the Confederation of Trade Union Unity (CUS) concerning Conventions Nos 17, 18 and 24. In its previous comments concerning all the abovementioned Conventions, the Committee emphasized the need to extend the coverage provided by the social security system, the total number of persons affiliated to which represented some 18 per cent of the population in 2008. With this in mind, the Government indicates in its reports a progressive extension of the coverage provided by the social security system launched in 2007, which forms part of five strategic components of social security policy including, inter alia, stabilization of administrative costs, strengthening of controls connected with the effective collection of contributions, performance of actuarial studies in relation to decision-making and stimulating investment. As a result of these measures, coverage provided by the system increased by 27 per cent between 2007 and 2011.

As regards protection against occupational risks, the statistics provided by the Government in its report on Convention No. 17 show that, between 2007 and 2011, the number of protected employees and apprentices increased by 24.5 per cent and that 98.4 per cent of workers registered with the Nicaraguan Social Security Institute (INSS) are currently covered against occupational risks. In its reports on Convention No. 12, the Government mentions the conclusion of numerous agreements aiming to extend to the agricultural sector – especially agricultural, fish-farming or stock breeding cooperatives – the protection provided by the system against invalidity, old age, death and occupational risks. These agreements aimed to extend to the whole territory the coverage provided by the social security system, by reducing to ten and then to five the minimum number of employees in enterprises for the purpose of affiliation to the system (Agreement Nos 8 and 9) or by extending social insurance to the agricultural sector (Agreement No. 10). These measures resulted in a 122 per cent increase in the number of agricultural workers protected against occupational risks between 2006 and 2011. Nevertheless, according to the CUS, certain categories of workers, in respect of which Article 2 of Convention No. 17 authorizes States to make exceptions that they deem necessary (casual workers, home workers, non-manual workers whose earnings exceed a certain limit, members of the employer’s family), are rarely affiliated to the scheme providing protection against occupational accidents. Moreover, it happens that workers affected by occupational diseases do not receive the compensation to which they should be entitled. The Committee requests the Government to identify the categories of workers the coverage of whom by the system poses difficulties, and also the measures taken to resolve them.

As regards sickness insurance coverage, the Government indicates in its report on Convention No. 24 that the INSS has held information days intended for employers and workers concerning the issue of the extension of sickness insurance to all persons covered by the Convention. It also indicates in its report on Convention No. 25 that 56.8 per cent of the 51,451 agricultural workers have sickness and maternity coverage. An agreement was concluded with the Directorate of Cooperation for the Export Processing Zones with a view to promoting affiliation to the social security system for new enterprises. Efforts were made to ensure better coordination between central government and its autonomous entities and thereby achieve a better exchange of information enabling the creation of a register of newly established employers. The CUS points out that there are still many cases in which enterprises do not in practice respect the obligation to affiliate their employees to the social security system. In order to redress this situation, a plan of action was adopted for 2011, one of the objectives of which is to increase the number of inspections undertaken by the labour inspectorate in order to promote fulfilment by employers of their social security obligations, the Penal Code now explicitly penalizing offences in this area. The Committee requests the Government to provide information on the results of the plan of action and also on progress made with a view to extending coverage of the system to the export processing zones.

The Committee notes that the objective of extending the coverage provided by the social security scheme is also reflected in the inclusion of this priority under the Decent Work Country Programme (DWCP) for 2008–11. According to the DWCP, only about 26 per cent of the economically active population are covered by the INSS, especially because of the size of the informal sector, the fact that protection focuses on workers in the formal sector and the impossibility for the INSS to provide assistance to those in greatest need in the informal sector. In order to rectify this situation, the DWCP provides for the drawing up of actuarial studies and also of long-term reforms sustained on a tripartite basis and aimed at extending the coverage provided by the social security system while observing the principles of solidarity, equity and universality. The Committee notes that the information supplied by the Government shows a positive dynamic in social security necessary for achieving the level of coverage required by Convention No. 12 (Article 1), Convention No. 17 (Article 2), Convention No. 18 (Article 1), Conventions Nos 24 and 25 (Article 2). Furthermore, the Committee notes that the information, especially statistics, at its disposal show that the Government has a system for evaluating progress made on the basis of detailed data. The Committee requests the Government to supply comprehensive statistics in its next report on the current coverage provided by the system by branch in the various sectors of activity (industry, agriculture, informal economy, etc.) in relation to the total number of workers, in accordance with the questions contained in the report forms for the various Conventions concerned. The Government is also requested to send the results of the actuarial studies provided for by the DWCP, indicating the priorities adopted for the progressive extension of the coverage provided by the social security system and also any actions to this end already undertaken in the context of the DWCP. The Committee notes that, according to the information supplied by the CUS, the Ministry of Labour (MITRAB) does not adequately enforce the national legislation in practice and offending enterprises are not systematically prosecuted or the resulting penalties imposed, especially where they fail to register their employees in the social security system. According to the Committee, this is especially damaging to the sustainable management of social security institutions as the latter are required by national regulations to grant the corresponding benefits despite the non-payment of social contributions by the employers (section 109 of the General Regulations relating to the Social Security Act, read in conjunction with Decree No. 975 of 1 March 1982). In view of the above, the Committee considers it useful to intensify the dialogue with the Government and the social partners in order to enable them to fully exploit the potential of international social security standards as an instrument of social development. These standards provide that States must assume the general responsibility of ensuring the sound management of social security institutions and services with the involvement of representatives of the persons protected.

The Committee encourages the Government to fully involve the social partners in the management of social security institutions (as required, in particular, by Article 6 of Conventions Nos 24 and 25) in order to ensure transparent and durable management and hence extended coverage.

The Committee observes that its comments should be able to help countries in the formulation of an exhaustive national strategy for the development of social security. Nicaragua has already established a national policy whose main priorities coincide with the objectives established in the General Survey, aiming in particular at the extension of coverage, the quest for good governance, the collection of contributions, effective inspection and durable planning, by conducting actuarial studies. The Committee observes that the policy implemented by the Government might benefit from the addition of measures ensuring closer coordination of social security with employment policy, especially with a view to extending coverage to the informal sector, and refers the Government to the relevant developments in this area in the General Survey (paragraphs 496–534).

Finally, the Committee considers that the Government’s efforts would be better targeted if its adopted priorities included the objective for the country to match the minimum social security standards established by the up-to-date Conventions in this area and which, to date, have not been ratified by Nicaragua. It recalls that the Government, in its report under article 19 on social security instruments, provided detailed information in the form of a comparative analysis of national law and the Social Security (Minimum Standards) Convention, 1952 (No. 102). The analysis concluded that Nicaragua is in a position to ratify this Convention and to accept Parts III (Sickness benefit), V (Old-age benefit), VI (Employment injury benefit), VIII (Maternity benefit), IX (Invalidity benefit) and X (Survivors’ benefit), with the proviso of having recourse to the possibility allowed by Article 3 of Convention No. 102 to limit, for an initial period, the personal scope of application of the Convention to enterprises that employ more than 20 workers. The Committee considers that the ratification of Convention No. 102 represents a key element for guiding the process of reform by establishing minimum criteria to be achieved on the basis of international standards. The International Labour Conference, at its 100th Session, recalled that Convention No. 102 still serves as a point of reference for the progressive establishment of comprehensive social security coverage and that increasing the number of ratifications remains a key priority. The Committee therefore encourages the Government to pursue the objective of ratification of Convention No. 102 and to consider the possibility of including the ratification of this Convention among the objectives of the next DWCP, which would enable it to mobilize any technical assistance from the Office which it might need. The Committee also hopes that the programme which will cover the next period will maintain and develop the objectives pursued so far, and in so doing will take the present comments into consideration. The Committee requests the Office to ensure the dissemination, through all of its bodies, including regional ones, of the present observation to the various interested parties and to provide them with any technical support needed for this purpose.