Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session. It again wishes to draw the Government's attention to the application of the following provisions of the Convention.

I. 1. Part X (Survivors' benefit), Articles 60, paragraph 1, 61, 62 and 64, of the Convention. (a) The Committee notes that pending the entry into force of the general survivors' benefit scheme provided for in section 42 of the Legislative Decree of 1961 concerning social security, as amended, the children of the deceased are only entitled to a single orphan's allowance (section 43B of the Legislative Decree), whereas under the above provisions of the Convention, survivors' benefit must be granted in the form of a periodical payment throughout the contingency, not only to widows but also to children in the event of the death of the breadwinner. It hopes that the Government will be able to take the necessary measures to give full effect to the Convention on this point, for example, by setting up the general survivors' pension scheme referred to in section 42 of the Legislative Decree.

(b) The Committee notes that under section 43A.1.1 of the Legislative Decree of 1961, only disabled widows or widows who have reached the age of 50 are entitled to widow's pension. In this connection, the Committee recalls that although, under Article 60, paragraph 1, of the Convention, the widows' right to benefit may be made conditional on her being presumed, in accordance with national law or regulations, to be incapable of self-support, such a presumption does not seem to be justifiable in the case of widows with dependent children. Accordingly, the Committee would be grateful if the Government would indicate the measures that have been taken or are envisaged to ensure that widows with dependent children are guaranteed a pension without fulfilling the conditions laid down at section 43A.1.1 mentioned above.

2. Articles 62 and 63 (in conjunction with Article 65 or 66). The Committee notes that under section 43A.2 of the Legislative Decree of 1961, the amount of the widows' pension is equal to 40 per cent of the amount of the retirement or invalidity pension to which the deceased was or would have been entitled, taking into account the provisions of section 38(2) of the Legislative Decree, concerning the minimum amount of the pension. The Committee notes that the rate of the widows' pension calculated in this manner is not such as to attain in all cases the level prescribed by the Convention which specifies that the rate of survivors' benefit paid to a widow with two children, increased by the amount of any family allowances payable during the contingency, shall be at least 40 per cent either of the breadwinners' former earnings or of the wage of an ordinary adult male labourer (according to whether recourse is had to Article 65 or Article 66 of the Convention), increased by the amount of the family allowances paid during employment. The Committee therefore asks the Government to indicate in its next report the measures that have been taken or are contemplated to guarantee survivors' benefit of an amount of at least equal to that prescribed by the Convention, due account being taken of any orphan's allowance which may be established (see I.1(a) above).

3. Part XIII (Common provisions), Article 71, paragraph 1, in conjunction with Part VII (Family benefit), Article 39. The Committee notes that, except in the Shaba region where, according to the Government's report, a compensation scheme for family allowance exists, such allowances are paid by the employer to the worker by virtue of section 34(1) of the Legislative Decree of 1961. The Committee recalls that such a method of funding is not consistent with Article 71, paragraph 1, of the Convention which provides that the cost of benefits must be borne collectively by way of insurance contributions or taxation. The Committee therefore hopes that the Government will be able to take the necessary measures to give full effect to the Convention on this point in all regions of the country. It also asks the Government to provide detailed information on the compensation scheme for family allowances in force in the Shaba region and to supply a copy of the relevant legislative or regulatory provisions.

II. Furthermore, the Committee would be grateful if the Government would provide information on the following points.

1. Part VII (Family benefit), Article 44. The Committee would be grateful if the Government would provide the information requested under this Article of the Convention in the report form adopted by the Governing Body on the application of the Convention. Please indicate in particular, (i) the total value of the family benefits granted for the children of the protected persons, (ii) the total number of children of all protected persons, (iii) the wage of an ordinary adult male labourer as determined in accordance with Article 66 of the Convention.

2. Part XI (Standards to be complied with by periodical payments), Article 65 or Article 66, in conjunction with Part V (Old-age benefit), Articles 28 and 29, Part IX (Invalidity benefit), Articles 56 and 57, and Part X (Survivors' benefit), Articles 62 and 63. (a) Please provide the statistical information required by the report form under titles I, II, III and V of Article 65 or Article 66, depending on which of the two above articles is used in comparing the rate of the old-age and invalidity periodical benefits prescribed by the national legislation with the level fixed by the Convention.

If Article 65 is used, please state in particular the amount of the wage of a skilled manual male employee determined in accordance with paragraphs 6 or 7 of this provision, and the rates of the old-age and invalidity benefits paid to a beneficiary whose previous earnings were equal to those of a skilled manual male employee who has completed the qualifying periods prescribed respectively by Article 29, paragraph 1(a) and Article 57, paragraph 1(a) of the Convention.

If Article 66 is used, please indicate in particular the wage of the ordinary adult male labourer determined in accordance with paragraph 3 or 4 of this Article, and the minimum rate of the old-age and invalidity benefits.

Please indicate also the amount of the allowances paid to a standard beneficiary during employment and, where appropriate, during the contingency.

(b) The Committee also requests the Government to provide the statistical information required by the report form under title VI of Article 65, with regard to the readjustment of current periodical payments in respect of old age, invalidity and death of the breadwinner, following an increase in the cost of living and/or the general level of earnings.

3. Part XIII (Common provisions), Article 70. The Committee notes that under sections 54 and 55 of the Legislative Decree of 1961, insured persons or beneficiaries may appeal before the provincial social security commissions against decisions taken by the National Social Security Institute concerning the granting, refusal and amounts of benefits. It notes, however, from the information supplied by the Government in connection with Convention No. 121, that these commissions have not yet been established in certain regions of the country but that the National Labour Council discussed the strengthening and extension of the commissions at its 22nd Session. The Committee therefore asks the Government to provide detailed information on any progress made in this respect, and to provide the texts of the recommendations adopted by the National Labour Council.

4. Article 71, paragraph 3. The Committee would be grateful if the Government would provide the latest analyses of financial operations and the actuarial estimates provided for in section 19 of the Legislative Decree of 1961.

5. Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b), in conjunction with Part V (Old-age Benefit), Article 27, Part VII (Family benefit), Article 41, Part IX (Invalidity benefit), Article 55, and Part X (Survivors' benefit), Article 61. The Committee gathers that the Government plans to avail itself of subparagraph (a) of the above-mentioned provisions. It therefore asks the Government to provide the statistical information concerning coverage required by the report form under title I of Article 76, stating the number of wage-earners actually protected by the social security scheme in relation to the total number of wage-earners.

6. The Committee would be grateful if the Government would provide information on the manner in which the Convention is applied in practice, as required under point V of the report form.

7. Lastly, the Committee notes that a new Social Security Code is being prepared. It hopes that this Code, once adopted, will enable full effect to be given to the Convention and that it will take account of the points mentioned above. It asks the Government to provide a copy of the Code as soon as it is adopted.