REPRESENTATION (article 24) - SWEDEN - C121 - 1993

1. Swedish Trade Union Confederation (LO), 2. Swedish Confederation of Professional Employees (TCO), 3. International Confederation of Free Trade Unions (ICFTU)

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Report of the Committee set up to examine the representation made by the Swedish Trade Union Confederation (LO), the Swedish Confederation of Professional Employees (TCO) and the International Confederation of Free Trade Unions (ICFTU) under article 24 of the ILO Constitution alleging non-observance by Sweden of the Employment Injury Benefits Convention, 1964 (No. 121)

Report of the Committee set up to examine the representation made by the Swedish Trade Union Confederation (LO), the Swedish Confederation of Professional Employees (TCO) and the International Confederation of Free Trade Unions (ICFTU) under article 24 of the ILO Constitution alleging non-observance by Sweden of the Employment Injury Benefits Convention, 1964 (No. 121)

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

Introduction
1. By a letter dated 28 January 1993, the Swedish Trade Union Confederation (LO), the Swedish Confederation of Professional Employees (TCO) and the International Confederation of Free Trade Unions (ICFTU), referring to article 24 of the ILO Constitution, made a representation alleging non-observance by Sweden of the Employment Injury Benefits Convention, 1964 (No. 121).
2. Convention No. 121 was ratified by Sweden on 17 June 1969 and is in force for this country.
3. The relevant provisions of the ILO Constitution concerning the submission of representations are the following:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure to be followed in case of representation is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980. (Endnote 1)
5. In accordance with article 1 and article 2, paragraph 1, of these Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Sweden, and brought the representation before the Officers of the Governing Body.
6. At its 255th Session (March 1993), the Governing Body, on the recommendation of its Officers, decided that the representation was receivable and set up a Committee to examine it, composed of Mr. Dietrich Willers (Government member, Germany, Chairperson), Miss Cornélie Hak (Employer member, Netherlands) and Mr. William Brett (Worker member, United Kingdom). (Endnote 2)
7. In accordance with article 4, paragraph 1(a) and (c) of the Standing Orders, the Committee decided to invite the complainant organizations (LO, TCO and ICFTU) to furnish any supplementary information they wished to bring to the attention of the Committee by 15 April 1993, as well as to invite the Government to make its observations on the representation by 30 April 1993, it being understood that any supplementary information supplied by the complainant organizations would also be communicated to the Government.
8. The LO presented further information by a letter of 15 April 1993, a copy of which was transmitted to the Government.
9. The Government made its observations on the representation in its communications dated 15 and 28 June 1993.
10. The Committee met for the first time in March, then in June and finally, for the adoption of its report, in November 1993.
Examination of the representation
Allegations made
11. The representation alleges that the Government of Sweden has failed to secure the effective observance of Convention No. 121 as a result of --
(1) the introduction of a one-day waiting period in the sickness insurance legislation, effective from 1 April 1993;
(2) a change in the burden of proof concerning the Employment Injury Insurance Act and a more restrictive definition of employment injury.
12. These issues will be dealt with successively.
A. Introduction of a waiting period
13. The LO, TCO and ICFTU state that Sweden has failed to fulfil its obligations under Article 9, paragraph 3, of Convention No. 121 by adopting in December 1992 an amendment to the sickness insurance legislation introducing as from 1 April 1993 a one-day waiting period whereby cash benefit would not be payable during the first day of sickness. Under the Swedish legislation on employment injury benefits a coordination period of 180 days is provided for during which the employment injury benefits are paid in accordance with the sickness insurance legislation. This means that a waiting period of one day without pay is also introduced in relation to employment injury benefits.
14. The representation specifies that the introduction of such a waiting period is not in conformity with the above-mentioned provision of the Convention because Swedish legislation did not provide for a waiting period at the date of its ratification, and the Swedish Government made no declaration accompanying its ratification in accordance with Articles 2 and 9, paragraph 3(b), of the Convention.
15. According to the representation, in 1992 a study was made in the Ministry of Health and Social Affairs concerning the introduction of a waiting period which, taking into account the provisions of Convention No. 121, proposed a waiting period only in respect of the sickness insurance legislation. This recommendation was approved by the Swedish national ILO Committee on 25 August 1992. Afterwards, however, the Government came forward with a new proposition introducing a waiting period also affecting the employment injury benefits legislation.
B. Definition of employment injury and burden of proof
16. The LO, TCO and ICFTU state that Swedish law contains a general definition of employment injury which includes both "industrial accident" according to the Convention No. 121, Article 7(1), and "occupational diseases" according to Article 8 (b). The Employment Injury Insurance Act, before being amended in 1992, provided that there was a presumption of the occupational origin of the injury "unless considerable stronger reasons speak against it". In the view of the complainants, the law was then in conformity with the requirement in Article 8(b) of the Convention and with what is stated in Recommendation No. 121, Paragraph 6(2).
17. By an amendment passed in December 1992 the law has, however, been reversed concerning the burden of proof. Injury resulting from industrial accident or other harmful influence at work should, under the amended Act, be regarded as having an occupational origin (and thus to be regarded as an employment injury) "if predominant reasons speak in favour of it". The representation states that the effect of this change in the legislation will be to transfer the burden of proof in cases of employment injuries to the insured worker. Together with other parliamentary action concerning the degree of probability necessary for a factor to cause an employment injury, this will, according to the complainants, seriously restrict the scope of the general definition of employment injury; it is believed that, consequently, about half of the recent employment injury cases would not be considered as such under the new legislation. Therefore, the representation alleges that the obligations laid down by Article 8(b) of the Convention are no longer met.
18. The complainants add in this respect that a commission appointed by the Government in 1992 to investigate the question of employment injuries proposed to introduce two separate sets of rules concerning the burden of proof: (a) to keep the old presumption of occupational origin in cases of industrial accidents and occupational diseases enumerated in Convention No. 121, and (b) to introduce a higher burden of proof in all other cases of employment injuries. These proposals were approved by the Swedish ILO Committee on 25 August 1992 as being in line with the requirements of Convention No. 121. However, they were not followed by the Government, which instead introduced a higher burden of proof on the worker in all cases of employment injuries.
The Government's reply
A. Introduction of a waiting period
19. In its reply, the Government provides detailed information on the Swedish employment injury insurance scheme and health insurance scheme as well as their evolution over the last years in the context of the economic situation of the country, which was now experiencing its deepest economic crisis since 1930, and of the heavy deficit of the social security schemes.
20. The Government recalls in particular that employment injury insurance is coordinated with national health insurance as regards compensation in the event of illness for the first 180 days after an injury occurs. Under this system and in accordance with the Employment Injury Insurance Act a person injured at work will receive compensation during the coordination period, as for other kinds of illness, out of national health insurance. In the view of the Government, this "coordination period" is of great administrative importance, because entitlement to work injury compensation does not normally need to be assessed in cases where recovery takes place within this period. Starting in 1992, however, a sick pay system was introduced whereby the employer provides sick pay for the first 14 days of each illness. During this period no sickness allowance is payable out of work injury insurance. Other measures effective 1 March 1991 resulted in a reduction of the sickness benefit rate.
21. With a view to further increasing the health insurance franchise, proposals were examined in 1992 for the introduction of a two-day waiting period during which no compensation for sickness would be due. This, however, was not intended to apply to persons incurring work injuries, in accordance with the corresponding provisions of Convention No. 121. A study group within the Ministry of Health and Social Affairs elaborated proposals on the technical and legal aspects of the arrangements, which would require social insurance offices to extend work injury assessment to cases ending within the coordination period. Such an obligation would have involved, even in cases of very brief illness, a decision on sometimes very complicated issues regarding the causal connection between an alleged harmful influence at work and the injury. The additional administrative cost of assessing work injuries within the coordination period was estimated at more than 200 million Swedish kronor by the National Social Insurance Board. The above proposals were seconded by the Swedish national ILO Committee, and a Government Bill on the subject was planned for October 1992.
22. However, due to the acute economic crisis Sweden was plunged into in the second half of 1992, there was overall consensus in Parliament for heavy cuts in social security spending. The Government felt it was not possible to increase the administrative cost of employment injury insurance and therefore found itself unable, despite the provisions on waiting days of Convention No. 121, to recommend exceptions for persons incurring employment injuries. Thus, the Government Bill to introduce one waiting day for sickness benefit without any special arrangements for persons incurring employment injuries, as well as a reduction of the rate of sickness benefit for prolonged cases of illness, was passed by the Riksdag on 18 December 1992.
B. Definition of employment injury and burden of proof
23. In its reply the Government recalls that the Employment Injury Insurance Act applies to work injuries in a general sense, i. e. injuries resulting from accidents, including commuting accidents, and from other harmful influence at work, it being understood that in principle a work injury must persist over 180 days (the coordination period) in order to qualify under the said Act. The Government then explains in detail the implementation of this Act before and after the introduction of changes related to criteria for assessing work injury.
24. Under the rules applying before 1993, assessment of the individual case of injury as being due to an accident or to some other harmful influence at work proceeded in two stages. First, an inquiry was made to ascertain whether the harmful factor to which the insured person was exposed at work was capable of causing the type of injury or disease in question. The Act did not lay down any evidential requirements for this hazard assessment but, according to established practice, a likelihood of the factor concerned being capable of causing the injury was sufficient, so that relatively few work injuries were rejected on the ground that no such influence existed. The second stage was to decide whether the harmful factor was the cause of the reported injury or illness. The evidential rule for this assessment also favoured the insured, laying down that a causal connection shall be deemed to exist unless there were far stronger arguments to the contrary.
25. In the spring of 1992 a commission considered proposals to amend work injuries criteria and presented a report in which it recommended raising the criterion of assessing the harmfulness of a factor in the working environment from probability to a high degree of probability. Regarding the requirement concerning a causal connection between a harmful influence at work and the injury sustained by an insured individual, it recommended that the rules in force continue to be applied to injuries resulting from accidents and to such work-related illnesses which can be assessed as such relatively clearly in practice, for example, illnesses caused by a substance, shaking, vibrations and noise. For other types of illness a stricter evidential rule was proposed, to the effect that a connection shall be deemed to exist if most of the indications suggest that it does.
26. In the consultations that followed most of the authorities and organizations consulted opposed the recommendation for having two different rules for the assessment of causal connections. In the Government's view, the great majority of the injuries for which the commission had maintained the application of the most favourable rule would also be accepted under a stricter rule, and the Government therefore settled on proposing to the Riksdag that the stricter rule be made to apply to all injuries. Accordingly, as from 1 January 1993, the requirement for a factor in the working environment to be considered as harmful was raised from probability to a high degree of probability and the requirement of a causal connection between a harmful influence at work and the injury sustained has been tightened in such a way that a connection is deemed to exist if most of the indications suggest that it does.
27. Nevertheless, the Government considers that there has been no change of principle regarding the general concept of industrial accident in employment injury insurance, which still includes every injury attributable to work or working conditions. In its opinion, Convention No. 121, Article 8 of which offers three possibilities for the definition of occupational diseases, affords scope for the elevation of the harmfulness criteria and for a tightening of the evidential requirement. The stricter evidential rule does not mean that the duty of investigation passes to the insured. Just as hitherto, it will be for the insurance authorities to provide adequate documentation before a case is determined. On the other hand, there will be in future a requirement of positive proof, i.e. convincing evidence (medical and otherwise), before an injury can be accepted as an industrial accident.
The Committee's conclusions
A. Introduction of a waiting period
28. The Committee recalls that already in 1982 a similar representation was submitted by the complainant organizations to the ILO, when Sweden had adopted on 26 May 1982 legislation introducing a three-day waiting period for payment of sickness benefit also applicable to victims of employment injuries. This legislation, however, was soon repealed by the law of 17 December 1982. (Endnote 3)
29. The question of the admissibility of a waiting period in respect of payment of benefits for incapacity for work is dealt with in Article 9, paragraph 3, of Convention No. 121, which states:
3. The benefits shall be granted throughout the contingency: Provided that in respect of incapacity for work the cash benefit need not be paid for the first three days --
(a) where the legislation of a Member provides for a waiting period at the date on which this Convention comes into force, on condition that the Member includes in its reports upon the application of this Convention submitted under article 22 of the Constitution of the International Labour Organisation a statement that its reason for availing itself of this provision subsists; or
(b) where a declaration provided for in Article 2 is in force. (Endnote 4)
30. It should be noted in the first place that the Government does not contest in any way the content of its international obligations. The Government's initial proposals in amending the legislation took account of the corresponding provisions of the Convention and contained the necessary technical and legal arrangements ensuring that a waiting period for the payment of sickness benefits, which are in principle also paid during the coordination period of 180 days in the case of industrial accident or occupational disease, would not apply to persons incurring employment injuries. (Endnote 5) As stated in the representation and in the Government's reply, these proposals were approved by the Swedish national ILO Committee in August 1992 and a draft law was to be adopted in October.
31. If the Government subsequently did not follow through its initial proposals and decided to introduce a waiting period also applicable to benefits for incapacity due to employment injuries, this was done mainly for reasons related to the economic situation of the country and the need to restore the financial stability of the health insurance and employment injury insurance systems. In this respect the Committee took note of the detailed explanations given by the Government concerning the economic situation of the country, which is currently going through its deepest crisis since 1930.
32. In its reply the Government has also highlighted trends in social insurance expenditure, which represents one of the largest and most rapidly growing areas of public spending. According to the Government, the sickness rate reflecting the level of absenteeism, rose steeply, peaking in 1989. Between 1985 and 1992, annual work injury insurance expenditure rose from 1,800 million to about 12,000 million Swedish kronor. The constant growth of health and work injury insurance expenditure during the eighties resulted in deficits which had to be covered out of the national budget to an extent which had not been anticipated in the statutory rules on the funding of these schemes. By the end of 1992, the accumulated debt of the Work Injury Insurance Fund to the State exceeded 26,000 million Swedish kronor.
33. The Government adds that to improve this situation measures had to be taken to strengthen "the work strategy in social insurance", giving priority to measures geared to getting a person back to work over passive cash handouts. The Government specifies that the reduction of the rates of compensation from 1 March 1991 and the sick pay reform which took effect on 1 January 1992 form part of this process. The decision taken at the end of 1992 to introduce a waiting period for benefits for temporary incapacity, whether or not of an occupational origin, as well as the reduction of benefit rates for prolonged cases of illness, was also expected, in the Government's opinion, to influence the scale of absence due to sickness.
34. The Committee is aware of the difficult economic situation which Sweden is currently going through as well as of the objectives pursued by the Government through measures taken to restore the financial stability of the health and work injury insurance schemes. The Committee also understands that the main reason that the Government finally chose not to propose special arrangements eliminating a waiting period for cases of employment injuries was due to the high administrative and financial costs involved in assessing employment injuries within the coordination period.
35. The Committee is bound, however, to recall that, according to Article 9, paragraph 3, of Convention No. 121, the benefits must be provided throughout the contingency, and that a waiting period of not more than three days can be authorized only in cases specified in clauses (a) and (b) of this provision. In this respect the Committee notes that at the date on which this Convention came into force for Sweden the Swedish legislation did not provide for a waiting period in the payment of benefit for incapacity for work due to employment injury, and that at the time of its ratification Sweden did not make any declaration in accordance with Articles 2 and 9, paragraph 3(b), of the Convention.
36. In these circumstances the Committee considers that the Government has an obligation under the terms of the Convention to continue to ensure the payment of cash benefits to victims of employment injuries from the beginning and throughout the contingency, as required by Article 9, paragraph 3, of this instrument, even if it is -- as is now the case in Sweden -- for the employer to provide sick pay during the period of the first 14 days of illness. It also considers that the provisions adopted by the Government to limit the negative impact of a waiting period in cases of repeated illness or of a relapse if it occurs within five days of the termination of the previous sickness period, are not in themselves sufficient to give effect to the Convention on this point.
37. Finally, the Committee notes the Government's declaration that the very difficult economic situation which the country faces at present is expected to persist for the next few years and that measures considered necessary to meet this challenge include consideration of the introduction of a new system of health and employment injury insurance. An advisory committee which should present its proposals by the end of 1994 was appointed to study this question and to examine in particular whether the two insurance schemes should be maintained separately or merged into a unified system. The Committee consequently expresses the hope that any reform of the health and work injury insurance schemes which may result from the recommendations of the advisory committee will take fully into account the international obligations undertaken by Sweden and, in particular, those under Convention No. 121. It also hopes that the work of this committee will produce solutions with a view to abolishing the waiting period introduced from 1 April 1993 in respect of the payment of benefits for incapacity for work due to victims of employment injuries, so as to ensure payment from the first day of incapacity, in conformity with the provisions of the Convention.
B. Definition of employment injury and burden of proof
38. The Committee notes that the representation raises the question of compatibility of the new provisions adopted on 21 December 1992, amending the rules concerning the assessment of employment injury and the burden of proof, with Article 8 of the Convention.
39. Article 8 of Convention No. 121, which covers in particular the compensation of occupational diseases, states the following:
Each Member shall --
(a) prescribe a list of diseases, comprising at least the diseases enumerated in Schedule I to this Convention, which shall be regarded as occupational diseases under prescribed conditions; or
(b) include in its legislation a general definition of occupational diseases broad enough to cover at least the diseases enumerated in Schedule I to this Convention; or
(c) prescribe a list of diseases in conformity with clause (a), complemented by a general definition of occupational diseases or by other provisions for establishing the occupational origin of diseases not so listed or manifesting themselves under conditions different from those prescribed.
40. The Committee observes that Article 8 of the Convention does not contain any general definition of occupational disease, but permits member States to choose among three methods of assessing occupational diseases: (a) adoption of a list of occupational diseases (list system); (b) adoption of a general definition of occupational diseases (system of global coverage); and (c) a combination of the above two methods (mixed system). Whichever method is selected, it should in any case ensure, in line with Article 8 of the Convention, that at least all the occupational diseases enumerated in Schedule I to the Convention can give rise to compensation. (Endnote 6)
41. As adopted in 1976, the Employment Injury Insurance Act contained a general definition of employment injury. According to section 1 of Chapter 2 of the Act, "the expression 'employment injury' means any injury resulting from an accident or other harmful influence at work", and section 2 specified that "where an insured person has been exposed to the risk of an accident or other harmful influence at work, any injury he sustains shall be regarded as having been caused by the harmful influence unless there are very strong reasons to the contrary". (Endnote 7) It should be noted that, in its report under article 22 of the ILO Constitution on the application of Convention No. 121 for the period 1977-81, the Government had indicated, in reply to a direct request of the Committee of Experts on the Application of Conventions and Recommendations made in 1978, that this definition of employment injury had been adopted so as to eliminate the need for a special list of occupational diseases qualifying for compensation. The Committee recalls in this respect that the Committee of Experts, in examining the legislation of 1976, considered that this definition of employment injury was sufficiently broad to cover at least the diseases enumerated in Schedule I to the Convention, for it did not make any further comments on the question, having taken note in its report of 1982 of the information supplied by the Government on this point. (Endnote 8)
42. The Committee further examined in detail the amendments introduced by Act No. 1698 of 1992 in Chapter 2 of the Employment Injury Insurance Act of 1976, which are the subject of the representation. It notes in this respect that the definition of employment injury has not been modified and thus remains "any injury resulting from an accident or other harmful influence at work". (Endnote 9) There was also no change as regards injuries caused by infection, which continue to be regulated by special provisions. However, the Act of 1992 has introduced in section 1 of Chapter 2 a definition of the term "other harmful influence at work". According to the new provision, it means the influence of a factor which, with a high degree of probability, can cause an injury such as the insured person has suffered. The new legislation of 1992 therefore, as is recognized by the Government, has made more rigid the rules elaborated previously by the jurisprudence to determine whether or not the harmful influence to which the worker is exposed at work is capable of causing the type of injury or disease he is suffering, by requiring a high degree of probability instead of a simple probability. Moreover, the Act of 1992 has also modified the rules concerning the presumption of the occupational origin of an injury by stipulating that, where an insured person was exposed to the risk of accident or other harmful influence at work, an injury sustained by him will be considered as having been caused by the said influence if there are compelling reasons to support this conclusion.
43. The Committee notes that changes introduced by Act No. 1698 of 1992 were aimed at making stricter the conditions for entitlement to compensation of employment injuries. Nevertheless, to the extent that the definition of employment injury continues to cover "any injury resulting from an accident or other harmful influence at work", the Committee considers that the new rules in force for the determination of occupational diseases are not in themselves incompatible with the provisions of the Convention. As concerns the burden of proof of the occupational origin of the disease which, according to the complainant organizations, rests now on the worker himself, the Committee has to point out that Article 8(b) of the Convention does not imply the establishment of the presumption of the occupational origin of the disease. In fact, this provision of the Convention requires only the inclusion in legislation of a general definition of occupational diseases which should be broad enough to cover at least the diseases enumerated in Schedule I to the Convention. This is actually one of the drawbacks of the system of global coverage, even if in a number of countries using this system, the burden of proof, while legally resting on the victim, may be assumed by other persons or institutions in the process of the assessment of the disease (medical practitioner, lawyer, expert, etc.). In this respect the Committee notes from the Government's reply that a stricter evidential rule does not mean that the duty of investigation passes to the insured person, but that the insurance authorities will spontaneously continue to provide adequate documentation, notwithstanding the fact that in future there will be a requirement of positive proof (medical or otherwise) before an injury can be considered to be of occupational origin.
44. The Committee observes, however, that, according to section 1, paragraph 1, of Chapter 2 of the Act of 1976, as amended, the determination of the harmful nature of a factor in the workplace is henceforth subjected to a more rigid test: this factor has to be capable -- with a high degree of probability -- of causing injury of the type sustained by the victim, whereas previously a simple probability was sufficient. At this stage and taking into account the available information, the Committee is not in a position to evaluate with precision the impact in practice of this modification which recently entered into force on 1 January 1993. The Government's reply seems to imply that the new procedure should not affect the recognition, for purposes of compensation, of occupational diseases enumerated in Schedule I to the Convention. On the other hand, the complainants state that nearly half of the recent employment injury cases would not be considered as such under the new legislation, without, however, specifying to what extent this might be the consequence of the modification either of the rules concerning the burden of proof of the occupational origin of an injury or of the rules concerning the harmfulness of a factor to which the insured person is exposed at work.
45. Under these conditions, the Committee considers that it will be for the Committee of Experts to examine the question of the implementation in practice of the new provisions relating to the assessment of employment injuries -- in particular, those concerning the degree of probability of a factor in the working environment being capable of causing an employment injury -- as well as the impact they may have on the application of Article 8(b) of the Convention. To this end, the Government should provide in its future reports under article 22 of the ILO Constitution on the application of the Convention detailed information on the national practice resulting from the decisions of the insurance administrative authorities and of the judicial bodies, so as to make it clear that the new provisions do not affect the execution of the obligation laid down in Article 8(b) of the Convention that the general definition of occupational diseases be broad enough to cover at least those enumerated in Schedule I to this instrument. In particular, the Government's reports should also contain statistics on the compensation of these occupational diseases (such as, by type of disease, the number of cases of diseases registered and compensated, the number of cases in which the payment of compensation was refused by the insurance authorities, as well as the reasons for such refusal). Finally, the Committee would like the Government to consider, in order to avoid any risk of ambiguity, drawing the attention of the competent national authorities responsible for compensation of occupational diseases to the contents of Schedule I to the Convention.
46. The Committee notes that the complainant organizations also raise certain questions concerning the manner in which the changes in question were introduced in the legislation as well as the possible impact they may have on the application of certain other Conventions ratified by Sweden, namely the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Collective Bargaining Convention, 1981 (No. 154). In particular, the complainants mentioned the fact that the social partners had not been consulted on the Government's final proposals which led to the adoption of the legislation concerning the introduction of a one-day waiting period and of the new rules assessing employment injuries. They also referred, in Annex 1 of the representation, to the financial implications which the new provisions on the assessment of employment injuries would have on the separate complementary insurance negotiated by the LO and TCO, on the one hand, and the employers' organization (SAF), on the other. To the extent that these questions did not form part of the formal allegations made in the representation, which was only made with respect to Convention No. 121, the Committee considers that their examination falls outside the scope of its mandate. The Committee would, however, like to draw the attention of the complainant organizations to the possibility they have of presenting any comments on the application by Sweden of the above Conventions in the framework of the regular supervisory procedure for the examination of reports due under article 22 of the ILO Constitution.
The Committee's recommendations
47. With reference to the conclusions which it reached on the questions raised in the representation, the Committee makes the following recommendations:
A. Introduction of a waiting period
(i) The Government should take the necessary measures to ensure that cash benefits for incapacity for work due to a victim of an employment injury are paid from the first day of incapacity, in particular, by modifying or repealing the provisions of section 6(1) of the Act respecting sick pay of 1991, as amended in 1992 (SFS 1992: 1701).
(ii) The Government should be asked to furnish, not later than 15 October 1994, a report under article 22 of the Constitution containing information on the measures taken or envisaged to this end in order to enable the Committee of Experts on the Application of Conventions and Recommendations to pursue the examination of the situation.
B. Definition of employment injury and burden of proof
(i) The Government should be asked to provide detailed information on the practical application of the new provisions adopted in 1992 (SFS 1992: 1698) which modify sections 1 and 2 of Chapter 2 of the Employment Injury Insurance Act of 1976, including furnishing the text of any relevant decision of the insurance administrative authorities and of the judicial bodies. In particular, the Government should also supply statistics on the compensation of the occupational diseases enumerated in Schedule I to the Convention (such as, by type of disease, the number of cases of diseases registered and compensated, the number of cases in which the payment of compensation was refused by the insurance authorities, as well as the reasons for such refusal, etc.).
(ii) The Government should be invited to consider, in order to avoid any ambiguity in the implementation of Article 8 (b) of the Convention, drawing the attention of the competent insurance authorities to the list of occupational diseases enumerated in Schedule I to the Convention.
(iii) The Government should furnish the information required in the above-mentioned report to be communicated not later than 15 October 1994 in order to enable the Committee of Experts to examine the application in practice of the new provisions concerning the assessment of employment injuries as well as the impact they may have on the implementation of Article 8(b) of the Convention.
48. The Committee recommends the Governing Body:
(a) to approve the present report and in particular the conclusions and recommendations made in it;
(b) to declare closed the procedure initiated before the Governing Body as a result of the representation made by the Swedish Trade Union Confederation (LO). the Swedish Confederation of Professional Employees (TCO) and the International Confederation of Free Trade Unions (ICFTU).
Endnote 1
See Official Bulletin, Vol. LXIV, 1981, Series A, No. 1, pp. 93-95.
Endnote 2
GB.255/12/9 and Minutes of 255th Session, p. VII/8.
Endnote 3
See in this respect GB.222/18/25, 222nd Session of the Governing Body, Geneva, 1-4 March 1983.
Endnote 4
Article 2, paragraph 1, of the Convention stipulates that "a Member whose economic and medical facilities are insufficiently developed may avail itself by a declaration accompanying its ratification of the temporary exceptions provided for in the following Articles: ... 9, paragraph 3, clause (b), ...".
Endnote 5
In accordance with the provisions of the Employment Injury Insurance Act, 1976 (Chapter 3, section 1), as amended, where an injured person is insured against sickness under the National Insurance Act (No. 381 of 1962), he shall be entitled in respect of his employment injury to the same benefits from the sickness insurance scheme as would be granted to him in respect of any other sickness for a coordination period of 180 days after the occurrence of the injury.
Endnote 6
The Schedule of occupational diseases contained in Annex I to the Convention was amended by the International Labour Conference at its 66th Session in 1980. Sweden, however, continues to be bound by the Schedule of occupational diseases as adopted in 1964.
Endnote 7
LS 1976-Swe. 2.
Endnote 8
See ILC, 68th Session, 1982, Report III (Part IV(A)), Report of the Committee of Experts on the Application of Conventions and Recommendations, p. 213.
Endnote 9
However, the new Act No. 1698 of 1992 expressly excludes from the definition of employment injury any injury of a psychological or psychosomatic nature which results from the closing down of an enterprise, a labour dispute, inadequate estimate of the allocation of labour, dissatisfaction with the job or with work tasks or with colleagues, or from other comparable situations.