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Previous comments: C.118 direct request; C.121 direct request; C.128 direct request.
In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on social security, the Committee considers it appropriate to examine Conventions Nos 102, 118, 121, 128 and 130 together.
The Committee notes the Government’s report and the observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), in respect of which the Committee requests the Government to provide its comments in its next reports.
Articles 1, 71(3) and 72(2) of Convention No. 102. Article 4 of Convention No. 121. Articles 7, 14 and 20 of Convention No. 128. Article 7 of Convention No. 130. Coverage of the social security system and general responsibility of the State for the proper administration of social security institutions and services and for the sustainable financing of social security benefits. The Committee notes the indication by the ASTAC in its observations that the number of insured workers is under 50 per cent of the economically active population and that this rate is approximately 13 per cent in the agricultural sector. It adds that in many cases employers do not register their workers, deduct the amount of the contributions from their wages and do not transfer them to the social security system. It reports that, due to the low registration rates, the Ecuadorian Social Security Institute (IESS) is experiencing a financial crisis, resulting in inefficiency in the provision of benefits. The Committee also notes the statistical data contained in the National Employment, Underemployment and Unemployment Survey (ENEMDU), according to which the occupied population consists of 8,008,824 persons, while the population in formal employment, and therefore who are subject to compulsory registration with the social security system, is 2,773,750. In the rural sector, the data shows that persons engaged in “underemployment” or “other than formal employment” are more numerous than workers in formal employment. During the first quarter of 2022, the informal sector accounted for 73.2 per cent in rural areas. While hoping that the Government will provide its comments concerning the observations of the ASTAC, and taking into account the statistics of the National Employment, Underemployment and Unemployment Survey, the Committee requests the Government to provide full statistical data including the current coverage of the social security system in terms of numbers of beneficiaries, disaggregated by branch and the various economic sectors, including the informal economy, in relation to the total number of workers, as indicated in the report forms for Conventions Nos 102, 121, 128 and 130.
Article 5 of Convention No. 118. Payment of benefits abroad.The Committee notes that the Government’s report does not provide information in reply to its previous comments on the manner in which benefits in the branches (a) to (d), (f) and (g), which have been accepted by Ecuador, are paid to beneficiaries living outside Ecuador. It therefore once again requests the Government to provide: (i) information on the national laws and regulations that give effect to the Convention and on the existence of bilateral agreements on this subject, with an indication of the manner in which the payment of benefits is ensured for beneficiaries abroad; and (ii) statistics on the benefits paid in this regard, disaggregated by the type and number of beneficiaries, type of benefit, amount paid and country of residence of the beneficiaries.
Articles 13, 14 and 18 (in conjunction with Articles 19 and 20) of Convention No. 121. Amount of periodical payments. The Committee notes the information provided by the Government in relation to its previous comments, clarifying that the average of previous earnings is used for the calculation of all benefits. The Committee observes that Articles 19(1) and (6) and 20(1) and (4) provide guidance on the basis that can be used or with which calculations must be compared in relation to average earnings. Taking into account the information provided by the Government indicating that benefits are calculated on the basis of average of previous earnings, the Committee requests the Government to: (i) indicate whether a ceiling is applied to contributions or the payment of benefits; (ii) demonstrate the manner in which the calculation of the average earnings as a basis for determining the amounts of contributions meets the requirements set out in Articles 19 and 20 of the Convention.
Article 21 of Convention No. 121. Review of rates of cash benefits. The Committee notes the statistical data provided by the Government in relation to its previous comments, indicating the number of beneficiaries and the total amount of benefits of each type paid over the past ten years. The Committee recalls that, in accordance with Article 21 of the Convention, the rates of cash benefits shall be reviewed following substantial changes in the general level of earnings or cost of living. The Committee therefore considers it necessary to provide further statistical data required in the report form as a basis for assessing the real impact of the adjustments of pensions and other long-term cash benefits, taking into account changes in the general level of earnings and in the cost of living in the country. The Committee once again requests the Government to provide specific statistical data required to assess the application of Article 21 of Convention No. 121 in relation to the rates of adjustment of benefits.
Part VII (Miscellaneous provisions), Article 38 of Convention No. 128. Coverage of agricultural workers. The Committee notes with interest the information provided by the Government in reply to its previous comment that Decision No. 636/2021 of the Executive Board envisages the provision of health, invalidity, old-age and survivors’ benefits to agricultural workers covered by the rural social security scheme. The Committee therefore encourages the Government to provide further information on the manner in which the new provisions give effect to the Convention in relation to the provision of invalidity, old-age and survivors’ benefits to agricultural workers, with a view to bringing to an end the temporary exclusion authorized by Article 38(2) of the Convention.

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Article 5 of the Convention (in conjunction with Article 10). Payment of benefits abroad. Further to its previous comments, the Government indicates that while there has not been much progress in this regard, that it is working to ensure that benefits are provided abroad. In practice, benefits paid to insured persons are deposited in their duly accredited bank accounts, and most banks have branches in other countries, or agreements with banks abroad. The Committee hopes that the Government will soon be in a position to provide information on the progress achieved with a view to the adoption of a legislative provision which guarantees that Articles 5 and 10 are applied in both law and practice.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:
Repetition
With reference to its previous observation, the Committee notes the indication contained in the Government’s report of 2007 that the Constitutional Tribunal declared several provisions of the Social Security Act of 2001 unconstitutional. In order to clarify the situation in law, the Committee reiterates its request to the Government to provide, in its next detailed report due in 2012, information on the extent to which the amended legislation gives effect to each of the provisions of the Convention, as well as the statistical information requested in the report form. Please supply also any regulations that have been adopted to apply the new Act.
Article 5 of the Convention (in conjunction with Article 10). Payment of benefits abroad. The Government confirms in its report that the payment abroad of old-age, invalidity and survivors’ benefits, and of workers’ compensation in cases of accidents, occupational diseases or the death of the worker, is made in each individual case on the basis of a resolution issued by the Benefits Committee of the Ecuadorean Social Security Institute (IESS). Referring to the conclusion of the Multilateral Ibero-American Social Security Convention and the Andean Instrument of Social Security (Decision No. 583) establishing the principle of equality of treatment and exportability of benefits among the ratifying parties, the Government also indicates that where bilateral social security agreements have been concluded, special liaison offices have been created with respect to the transfer of benefits abroad. The Committee once again requests the Government to legitimize the practice of authorizing the payment of benefits abroad by adopting a specific provision ensuring that Articles 5 and 10 are applied both in law and in practice, as it had previously expressed the intention of doing. The Committee asks the Government to send information on the progress made in this regard in its next detailed report due in 2012. The Committee recalls in this respect that the scope of obligations assumed by Ecuador under Convention No. 118 goes beyond the circle of the countries party to the Andean Instrument of Social Security or the Multilateral Ibero-American Social Security Convention. By ratifying Convention No. 118, the Government has undertaken to guarantee, in accordance with its Articles 5 and 10, payment of the above benefits to the nationals of any other Member which has accepted the obligations of the Convention in respect of a given branch, as well as to its own nationals and to refugees and stateless persons, in the event of residence abroad, irrespective of the new country of residence or the conclusion of any reciprocity agreement.
The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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With reference to its previous observation, the Committee notes the indication contained in the Government’s report of 2007 that the Constitutional Tribunal declared several provisions of the Social Security Act of 2001 unconstitutional. In order to clarify the situation in law, the Committee reiterates its request to the Government to provide, in its next detailed report due in 2012, information on the extent to which the amended legislation gives effect to each of the provisions of the Convention, as well as the statistical information requested in the report form. Please supply also any regulations that have been adopted to apply the new Act.
Article 5 of the Convention (in conjunction with Article 10). Payment of benefits abroad. The Government confirms in its report that the payment abroad of old-age, invalidity and survivors’ benefits, and of workers’ compensation in cases of accidents, occupational diseases or the death of the worker, is made in each individual case on the basis of a resolution issued by the Benefits Committee of the Ecuadorean Social Security Institute (IESS). Referring to the conclusion of the Multilateral Ibero-American Social Security Convention and the Andean Instrument of Social Security (Decision No. 583) establishing the principle of equality of treatment and exportability of benefits among the ratifying parties, the Government also indicates that where bilateral social security agreements have been concluded, special liaison offices have been created with respect to the transfer of benefits abroad. The Committee once again requests the Government to legitimize the practice of authorizing the payment of benefits abroad by adopting a specific provision ensuring that Articles 5 and 10 are applied both in law and in practice, as it had previously expressed the intention of doing. The Committee asks the Government to send information on the progress made in this regard in its next detailed report due in 2012. The Committee recalls in this respect that the scope of obligations assumed by Ecuador under Convention No. 118 goes beyond the circle of the countries party to the Andean Instrument of Social Security or the Multilateral Ibero-American Social Security Convention. By ratifying Convention No. 118, the Government has undertaken to guarantee, in accordance with its Articles 5 and 10, payment of the above benefits to the nationals of any other Member which has accepted the obligations of the Convention in respect of a given branch, as well as to its own nationals and to refugees and stateless persons, in the event of residence abroad, irrespective of the new country of residence or the conclusion of any reciprocity agreement.

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The Committee notes the information supplied by the Government in its report. It notes the adoption on 30 November 2001 of the new Social Security Act. It asks the Government to indicate whether the new Act has come into force and, if so, to please provide detailed information on the extent to which the new legislation gives effect to each of the provisions of the Convention, as well as the information requested in the report form, including statistics. The Committee also requests the Government to supply any regulations that have been adopted to apply the new Act.

The Committee hopes that the next report will also contain information on the measures adopted to give effect to the following provisions, on which the Committee has been commenting for many years.

Article 5 of the Convention (in conjunction with Article 10). In earlier comments, the Committee noted the Government’s statement that the payment abroad of old-age, invalidity and survivors’ benefits, and of workers’ compensation in cases of accidents, occupational diseases or the death of the worker, is made in each individual case on the basis of a resolution issued by the Benefits Committee of the Ecuadorean Social Security Institute (IESS). The Committee consequently expressed the hope that the Government would confirm this practice in its legislation, as it had expressed the intention of doing.

In its previous report, the Government stated that the basis in law of the procedure ensuring payment of social benefits abroad is the Ibero-American Social Security Convention, which is an integral part of Ecuador’s legislation pursuant to Article 163 of the new Constitution. The Committee pointed out in this connection that, according to the information supplied by the Government, of the 38 countries that have ratified Convention No. 118, only five have signed the Ibero-American Social Security Convention. It would appear that implementation of the Ibero-American Convention necessarily involves the conclusion of bilateral administrative agreements between the countries concerned. In these circumstances, the Committee is bound to point out once again that, by ratifying Convention No. 118, the Government has undertaken to guarantee, in accordance with Articles 5 and 10, payment of the above benefits to the nationals of any other Member which has accepted the obligations of the Convention in respect of a given branch, as well as to its own nationals and to refugees and stateless persons, in the event of residence abroad, irrespective of the new country of residence or the conclusion of any reciprocity agreement. The Committee therefore hopes that the Government will review this matter and establish the current practice in law by means of a specific provision ensuring that Articles 5 and 10 are applied both in law and in practice. The Committee requests the Government to provide information on the progress made in this area in its next report.

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Article 5 of the Convention (in relation with Article 10). In its previous comments, the Committee noted the Government's statement that the payment abroad of old-age invalidity and survivors' benefits, as well as workers' compensation in cases of accidents, occupational diseases or the death of the worker, is made in each individual case on the basis of a resolution issued by the Benefits Committee of the Ecuadorean Social Security Institute (IESS). As a consequence, it hoped that the Government would confirm this practice in its legislation, in conformity with the intentions that it had expressed.

In its latest report, the Government states that the practice for the payment of benefits abroad has its legal basis in the Ibero-American Social Security Convention, which is an integral part of national legislation, under the terms of article 163 of the new Constitution. The Committee notes in this respect that, according to the information supplied by the Government, of the 38 countries which have ratified Convention No. 118, only five have signed the Ibero-American Social Security Convention. Furthermore, it understands that the implementation of the Ibero-American Convention necessarily involves the conclusion of bilateral administrative agreements between the countries concerned. In these conditions, the Committee is bound to recall that, by ratifying Convention No. 118, the Government has undertaken to guarantee, in accordance with Articles 5 and 10, the provision of the above benefits to its own nationals and to nationals of any other Member which has accepted the obligations of the Convention in respect of the branch in question, as well as to refugees and stateless persons, when they are resident abroad, irrespective of the new country of residence or the conclusion of any reciprocity agreement. The Committee therefore hopes that the Government will be able to re-examine the question and confirm the current practice in legislation, as it has already expressed the intention of doing on many occasions in the past, by means of an explicit provision giving effect to Articles 5 and 10 in both law and practice. It requests the Government to provide information in its next report on the progress achieved in this respect.

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Article 5 of the Convention (in conjunction with Article 10). Further to its previous comments, the Committee notes with interest the Government's statement that in practice, in each particular case, the Benefits Committee of the Ecuadorean Social Security Institute (IESS) issues a resolution detailing the name of the beneficiary as well as the amount to be paid. The resolution is sent to the appropriate social security institution which will ensure the payment abroad of old-age, invalidity, and survivors' benefits, as well as workers' compensation in case of accidents, occupational diseases or death of the worker. The Committee notes this information with interest. It hopes that the Government will be able to confirm this practice in the legislation, in conformity with the intention expressed in the report, so as to ensure in law as in practice the full application of these Articles of the Convention.

[The Government is asked to report in detail in 1998.]

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Article 5 of the Convention (in conjunction with Article 10)

The Committee notes with interest the statistical information supplied by the Government in reply to its previous direct request. It also notes the Government's statement that although there is no explicit provision in the internal rules of the Ecuadorian Social Security Institute (IESS) giving effect to this Article of the Convention, in the IESS "pensions budget" there is an item entitled "transfers abroad" which enables the IESS, at the request of the beneficiaries, to pay old-age, invalidity and survivors' benefit to nationals and foreigners residing abroad.

The Committee hopes that the Government will be able to confirm this practice in the legislation, in respect not only of the benefits mentioned above, but also of employment injury pensions and death grants, so as to give full statutory effect to Articles 5 and 10 of the Convention. These provisions ensure the payment of the above benefits both to the nationals of the Member as also to the nationals of any other Member which has accepted the obligations of the Convention in respect of the branch concerned, when they are resident abroad, as well as to refugees and stateless persons.

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Article 5 of the Convention (in conjunction with Article 10). The Committee takes note of the information supplied by the Government concerning the payment abroad of invalidity and survivors' benefits, employment injury benefits and death grants. It also notes that the Ecuadorian Social Security Institute has been asked to provide the texts of the Institute's Regulations which give effect to this provision of the Convention as well as statistical information in regard to the number and nationality of the beneficiaries of the above benefits. The Committee hopes that this information will be supplied to it in the near future.

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