Nicaragua - Rights of People with Disability to Work and Employment

CONTRIBUTION ON THE OCCASION OF THE DRAFT GENERAL COMMENT OF THE COMMITTEE ON THE RIGHTS OF PERSONS WITH DISABILITIES ON THE RIGHT TO WORK AND EMPLOYMENT

AT THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

MARCH 15, 2021

1. Reference

On 10 February 2021, the Office of the United Nations High Commissioner for Human Rights submitted the Draft General Observation of the Committee on the Rights of Persons with Disabilities regarding the Right to Work and Employment, in accordance with article 27 of the Convention on the Rights of Persons with Disabilities. The deadline for submitting contributions is March 15, 2021.

2. General Considerations of the Observation Project

The Nicaraguan Ombudsman for Human Rights considers that the Draft Observation has been developed in accordance with the provisions of the International Human Rights Instruments governing the human right to work and employment¹, and in particular with its own regulations to guarantee this right to persons with disabilities, in accordance with article 27 of the Convention on the Rights of Persons with Disabilities.

The Institution considers that the normative content of Article 27 is structured in such a way that it addresses the essential elements for making this right a reality, in line with General Comments of the United Nations Treaty Bodies.²

3. Good Practices
   of the State of Nicaragua

The right to work is conceived in the Republic of Nicaragua as an essential right for the realization of other human rights and to guarantee its exercise and enjoyment among the population, is to contribute to the respect for human dignity of all, without discrimination.

The State of Nicaragua has demonstrated the importance it attaches to the right to work and employment for all persons within the national territory and in particular for persons with disabilities, as it allows them to become major actors in national development, but above all, it gives them the necessary conditions to contribute to their development and that of their family.

1. Constitutional Guarantees of Nicaraguans with regard to the Right to Work and Employment

The Political Constitution of the Republic of Nicaragua (1987), the product of the Sandinista People's Revolution (1979), is an emblematic constitutional text that contemplates and regulates the fundamental rights of the Nicaraguan nation, in accordance with the International Instruments of Human Rights. Therefore, in the national territory, Nicaraguans have the constitutional right to work, according to their human nature.³

Constitutional reforms promoted throughout history, in order to adjust the text to new contexts, have ensured that persons with disabilities are seen as essential actors of the Nicaraguan nation, without discrimination.

In 2014, the Government of Reconciliation and National Unity (GRUN), as part of the Second Stage of the Sandinista People's Revolution, promoted a constitutional reform that recognized respect for individual diversity without discrimination, as well as respect and equal rights for persons with disabilities.⁴

Nicaragua's Political Constitution contains a number of provisions on employment and work, as well as respect for the rights of persons with disabilities, which constitute best practices for providing guarantees to this group, that has been historically violated and excluded by neoliberal governments:

Article 56 of the constitutional text establishes that the State will pay special attention in all its programs to the disabled and the relatives of the fallen and victims of war in general.

In turn, Article 62 establishes, the State will seek to advance programs for the benefit of the disabled for their physical, psychosocial and professional rehabilitation and for their employment.

Title IV Rights, Duties and Guarantees of the Nicaraguan People, Chapter 5 refers to labor rights, Articles 80 to 88 reads as follows:

• Work is a right and a social responsibility. The work of Nicaraguans is the fundamental means of meeting the needs of society and the individual and is a source of the nation's wealth and prosperity. The State shall seek the full and productive occupation of all Nicaraguans, under conditions guaranteeing the fundamental rights of the person (Article 80).

• Workers have the right to participate in the management of enterprises, through their organizations and in accordance with the law (Article 81).

• Workers are entitled to working conditions that particular ensure (Article 82):

1. Equal pay for equal work under the same conditions, appropriate to their social responsibility, without discrimination on political, religious, social, sex or any other reason, which ensures a well-being compatible with human dignity.

2. To be remunerated in legal tender at your workplace.

3. The protection of the minimum wage and social benefits, except for the protection of the family and in the terms established by law.

4. Working conditions that guarantee physical integrity, health, hygiene and the reduction of occupational risks in order to ensure occupational safety for the worker, effective.

5. Eight-hour workday, weekly rest, vacation, remuneration for national holidays and salary for the thirteenth month in accordance with the law.

6. Stability at work in accordance with the law and equal opportunity to be promoted, without further limitations than the factors of time, service, capacity, efficiency and responsibility.

7. Social security for comprehensive protection and livelihoods in cases of disability, old age, occupational risks, sickness and maternity; and for their relatives in cases of death, in the form and conditions determined by the law.

• The right to strike is recognized (Article 83).

• The work of minors is prohibited, in tasks that may affect the normal development or their compulsory training cycle. Children and adolescents will be protected from any form of economic and social exploitation. (Article 84).

• Workers have the right to cultural, scientific and technical training; the State shall facilitate it through special programs. (Article 85).

• Every Nicaraguan has the right to freely choose and practice his profession or trade and to choose a place of work, with no more requirements than the academic degree and that it may fulfil a social function (Article 86).

• There is full freedom of association in Nicaragua. Workers shall be voluntarily organised in trade unions and may be constituted in accordance with the law. No worker is obliged to belong to a particular trade union, nor to renounce to one he or she belongs too. Full trade union autonomy is recognized, and the trade union jurisdiction is respected. (Article 87)

• The inalienable right of workers is guaranteed so that, in defense of their individual or collective interests, they may subscribe with employers (Article 88):

1. Individual contracts.

2. Collective agreements. Both in accordance with the law.

2. National Planning with a Human Rights Approach: Plans and Programs of the Government of Reconciliation and National Unity (GRUN).

The people of Nicaragua elected the Government of Reconciliation and National Unity (GRUN) in 2006, which initiated a process of structural change, through a model inspired by Christian principles and values, socialism and solidarity, with forms of work respectful of human rights and committed to groups historically marginalized by neoliberal policies.

Since 2007, the Government of Nicaragua has worked to reduce poverty, achieve a more equitable society based on rights and values; its objective being structural transformation to overcome the exclusion and unlock the potential for human development of the excluded, including the poor, women, young people, indigenous and Afro-descendant peoples, as well as people with disabilities.

The Government of Nicaragua has guided its action through human rights and sustainable development planning through the National Human Development Plan (PNDH) from 2009 to 2011; the National Human Development Plan (PNDH) from 2012 to 2016; as well as the current axes of the National Human Development Program (PNDH) for 2018 to 2021.

The current axes of the National Human Development Program contemplate, as a part of social development, guaranteeing a culture of respect, protection and attention to the fundamental rights of people with disabilities, facilitating their social, educational and labor inclusion, under conditions of equity. In turn, labor rights refer to:

1. Promotion of the stability and development of work and employment in the medium and long term, to reduce unemployment and underemployment.

2. Negotiation of wages and promotion of decent employment and labor productivity, to contribute to social and labor stability.

3. Develop the knowledge and skills needed for the good performance of workers.

4. Strengthen a culture of prevention of occupational risks and diseases in the workplace, in order to ensure the occupational health and safety of workers.

The sixth axis refers to work and prosperity in the following terms:

1. Promote policies for the generation of jobs in all forms, promoting formality.

2. Dignify and promote the generation of self-employment to establish personal and family businesses and offer services.

3. Promote entrepreneurship, small businesses development and associativity among people in order to energize employment.

4. Ensure access to social security benefits and collective conventions for workers.

3. Progressive advances in the enjoyment and fulfillment of the right to work and employment of persons with disabilities in Nicaragua

In Nicaragua, the Government of Reconciliation and National Unity (GRUN) has implemented Public Policies aimed at ensuring non-discrimination for persons with disabilities and has promoted the adoption of measures to enable the exercise and enjoyment of their right to earn a living through work, freely chosen and accepted by themselves and to preserve it, as part of their progress within society.

As part of the political will of the Government of Nicaragua and its real commitment toward persons with disabilities, Nicaragua signed the Convention on the Rights of Persons with Disabilities, on 30 March 2007 and has promoted the updating of the national legal framework, in line with the Political Constitution of the Republic of Nicaragua and international human rights instruments.

Pursuant to the above, on 13 April 2011, the National Assembly of Nicaragua adopted Law No. 763 "Law on the Rights of Persons with Disabilities" and its regulations, Decree No. 11-2014; articles that positively affect the right to work and employment of persons with disabilities.

Today, the national legal order ensures⁵ that persons with disabilities are protected throughout the national territory and above all:

• Prohibits employment discrimination

• Ensures non-slavery or servitude.

• Recognizes Equal Opportunities and Remuneration for Work of Equal Value.

• Regulates employment for people with disabilities in the public sector

• Establishes the obligation of reasonable adjustments for persons with disabilities in the workplace.

• Defines the incentives for the promotion of employment in the private sector.

• Ensures the exercise of trade union rights.

1. Technical and Professional Education

The National Institute of Technology (INATEC) implements within its Institutional Study Curriculum, the topics of Entrepreneurship, Business Management, Self-Esteem, Attitude, Responsibility and Hygiene and Health, as a cross-cutting axis in all trainings, in order to contribute to the socio-laboral development of people with disabilities and their best performance in the community.

There is the Department of Professional Rehabilitation, whose objective is to professionally rehabilitate target groups with skills that respond to the demand of the labor market in order to insert them into the socio-laboral and productive life of the country.

• People with Visual Disabilities are constantly trained in the areas of: Telephonist Receptionist, Motivation and Self Esteem, Small Business Administration, Computer Science, Fabrics, hammocks, Bags, Baskets and others, Massages, English, Packaging Shrimp, Bakery and Cigars, sanding.

• People with disabilities were trained in specialties of: Bakery, Carpentry, Foamy Crafts, Floral Arrangement, PC Repair and Maintenance, Piñata Preparation, Cutting and Sowing, Pastry and Decoration, Basic Gasoline Engine Maintenance, General Beauty, Homemade Sorbet, Cell Phone Repair, Hammock Preparation, Self-Esteem, Techniques and Decoration and Tuning, Neck Transformation, Sleeves and Skirts, Basic Plumbing, Preparation of Preserves and Nectars, General Jewelry, Typical Nicaraguan Food, Flower Making and Floral Arrangements, Introduction to Professional Rehabilitation, Business Management, Accounting and Business Profile Development, Wine Making, Horticulture, Computing with JAWS Application, Application of Acrylic Nails, Family Orchards, Commodity Bakery, Basic English, Motorcycle Repair, Crafts, Dairy Preparation, Barbershop, among others.

2. Public Employment Service of the Ministry of Labor (Availability)

The Government of Reconciliation and National Unity (GRUN), through the Public Employment Service of the Ministry of Labor has guaranteed a specialized service aimed at supporting persons with disabilities in order to enable them to identify and access available employment.

3. Accessibility of persons with disabilities to and conservation
   of employment.

In the Republic of Nicaragua, the Ministry of Labor is the institution responsible for ensuring that persons with disabilities can work on an equal footing with other persons, enjoying their labor rights, in accordance with article 34 of the Law on the Rights of Persons with Disabilities.

Under the above, the Ministry of Labor encourages employers to make reasonable adjustments, adapting the environment and working conditions based on the needs of persons with disabilities, for the exercise of their employment rights and verifying that promotions and are given on the basis of equal opportunities, taking into account capacity and performance within the company, without considering the reasons related to disability.

In line with this, in Nicaragua, any employer whether a public or private entity must take the following actions in compliance with article 25 of the Regulations of the Law on the Rights of Persons with Disabilities and which are monitored by the Ministry of Labor and failure to comply with them constitutes a serious violation:

1. Adjust your recruitment criteria and requirements by avoiding any cause related to people's disability;

2. Promote inclusive attitudes towards people with disabilities among workers;

3. Adapt the environment and working conditions based on the needs of persons with disabilities;

4. When an active duty worker acquires a disability, he or she will be kept in the same job he was in, before acquiring the disability or placed in another position according to his or her ability, and a pension will ultimately be granted;

5. Verify that job promotions, relocation and termination of the employment relationship are taken into account by the ability and performance of individuals within the company, without regard to disability-related reasons;

6. Take the necessary measures to eliminate the rules and practices contrary to equal opportunities and the establishment of measures to avoid any form of discrimination on the basis of disability;

7. Develop and promote information activities, awareness-raising campaigns and as many others as are necessary for the promotion of equal opportunities and non-discrimination;

In the particular case of the National Police and the Nicaraguan Army, they have established Recruitment Protocols that allow persons with some degree of disability to participate on an equal footing to carry out activities that have no direct relationship with operational activities related to the maintenance and restoration of order, public security and the defense of the nation.

National legislation regulates that under no circumstances may persons with disabilities be discriminated against in order to qualify for a position in the Civil Service, and only the capacity of the candidate aspiring to the position must be assessed.

With regard to measures to support labor insertion, the Ministry of Labor, the National Institute of Technology, the Nicaraguan Institute of Social Security and other public institutions, support the employment of persons with disabilities, through individual and collective technical and vocational training policies, self-employment, promoting business opportunities, the establishment of cooperatives and the starting of their own companies.

The Ministry of Labor carries out special support measures, such as: vocational training, grants, cooperation agreements to facilitate labor integration of persons with disabilities; as well as socio-laboral research to improve the integration and improvement of their working conditions.

In this case, the Nicaraguan Institute of Social Security may not suspend or cancel any benefits received by persons with disabilities and may continue to work and pay their individual account, in compliance with article 27 of the Regulations of the Law on the Rights of Persons with Disabilities.

Likewise, in order to ensure access to the health services of the children of workers born with permanent disabilities, resolution 97/295 was approved on 3 December 2015, which in its numeral 1 provides: "Health coverage is granted for the children of rightholders born with a permanent disability".

4. Protection of persons with disabilities at work and promotion of decent employment.

A good practice of the State of Nicaragua in terms of recruitment is that persons with disabilities, under the principle of equal opportunities and on the basis of the nature of the employment activity to which they are hired, have the right not to be discriminated against on the basis of their status, in order to qualify for employment. In the job interview, the employer must take into account only the capacities necessary to fulfill the activities of the job he or she is opting for, on an equal footing with other applicants to the required position, in compliance with section 36 of the Law on the Rights of Persons with Disabilities.

The State of Nicaragua, through the Ministry of Labor has guaranteed access to all Nicaraguan citizens to all services offered by the Public Employment Service such as: registration, intermediation, individual and group employment orientation, development of labor skills for increased employability. The incorporation of persons with disabilities is processed on the basis of Law No. 763 "Law on the Rights of Persons with Disabilities", registering in the period 2014-2018, a labor insertion of 666 people with different types of disability. All these services are provided without any discrimination.

The Government of Reconciliation and National Unity through the Ministry of Labor guarantees measures to protect the human rights of workers, through labor consultancies in person, by telephone, by email and in writing; it also provides training on labor legislation through the "Territorial Labor Commissions", which aim to empower workers to be architects in defending their rights. Ensuring effective articulation with social labor movements serving workers has also been consolidated with the aim of ensuring speed and access to administrative labor justice according to the territorial location where the employment relationship was concluded.

The labor legislation in force in the State of Nicaragua, in particular Law No. 664, "General Labor Inspection Law", is of national application, by means of which inspection plans and programs of care and protection of labor rights are implemented on an equal opportunity and treatment in all processes, in strict adherence to Nicaraguan labor legislation, as well as the safe performance of workers under Law No. 618 "General Law on Occupational Hygiene and Safety."

In this sense, the Ministry of Labor, through its Labor Inspectors, ensures that all national, municipal, state and private institutions and enterprises with fifty or more workers include at least two per cent of persons with disabilities in their respective payrolls. In the case of companies with a payroll of more than ten workers and less than fifty, at least one person with a disability must be employed.

The State of Nicaragua through the Ministry of Health promotes the "All with Voice" Program, which has been a fundamental pillar of people with disabilities, who are cared for not only in their health, but also equipped with tools (auxiliary appliances, wheelchairs, walk-ins, canes) and to be independent and create their own ventures. The country also has eight audiological clinics and three prosthetic workshops.

As a particular aspect, the Ministry of Education, the National Institute of Technology and the National Council of Universities, in coordination with the State and Private Universities employs visually and hearing-impaired persons for the teaching of Nicaraguan sign language and Braille writing systems.

However, it has been emblematic that the State of Nicaragua should include persons with disabilities as a priority in socio-economic credit-access programs, including existing national and municipal programmes. Similarly, regional and municipal governments have included persons with disabilities in these types of programs and in their local development agendas, in accordance with the Law.

A good practices of the State of Nicaragua is the celebration of the Expo Fair at the National level: “Nicaragua Blessed Strength, Endeavors that Inspire", with the aim of giving opportunities to all, allowing entrepreneurs with disabilities to present their products and show their examples of improvement.

Through the Ministry of Family, Community, Cooperative and Associative Economy (MEFCCA), 768 ventures are registered as driven by people with disabilities, and strengthened through this Ministry, which performs support and motivational actions for the growth of businesses, strengthening capacities in productive processes, adding value to improve the quality of products, improving presentation, promotion, marketing and business management.

In the same manner, the Ministry of Family Economy, has promoted economic activities carried out by people with disabilities in sales of handicrafts, jewelry, textiles, crafts, piñata making, furniture, among others, defining support strategies and training according to their needs, allowing them to improve the quality of their products, presentation and promotion, that had an effective impact on the added value at the time of marketing of their products.

The Ministry of Family Economy is responsible for implementing the Food Production Bonus Program, which has been successful in poverty reduction and protecting the food security of people in rural areas and with a priority toward people with disabilities, currently changing the dynamic, by moving to a Microcredit Program through solidarity groups and currently transformed into the Entrepreneurship Program where the population is treated in a comprehensive way in order to provide tools to meet the needs of the family.

A good practice of the Supreme Electoral Council(CSE) which has been the incorporation into its collective working agreement, Clause 22, which provides financial support, special permits with wages, labor benefits and transport, for those workers who have in their family nucleus people with disabilities.

The Republic of Nicaragua has a "Guide for the Employment Inclusion of Persons with Disabilities" as a tool that explains and guides employers, both in the public and private sectors, the process of labor inclusion of persons with disabilities, framed in the social and human duty of the application of the right to work without discrimination, as a result of coordinated work between the Ministry of Labor of the Republic of Nicaragua and the Cabinet of Persons with Disabilities.

The Ministry of Labor has undertaken training and education processes for both the public and private sectors to publicize the Guide and its implementation.

The Nicaraguan Ombudsman for Human Rights considers that the good practices of the State of Nicaragua described above have allowed for the progressive advancement of the enjoyment and fulfillment of the right to work and employment with an approach tailored to the needs of persons with disabilities, ensuring their non-discrimination, in accordance with the national legal framework and international human rights instruments.