Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

I. Article 3, paragraph 1, of the Convention (read in conjunction with Article 10)

(a) In its previous observations, the Committee noted that section 38(b) of the Social Security Act No. 13 of 1980 and Regulations 28 to 33 of the Pension Regulations of 1981 provide that non-Libyan residents receive only a lump sum in the event of premature termination of work, whereas nationals are guaranteed, under section 38(a) of Act No. 13, the maintenance of their wages or remuneration. The Committee emphasized that this difference in treatment between Libyan nationals and foreign workers in the event of the premature termination of their work is contrary to the principle of equality set out in this provision of the Convention and it drew the Government's attention to the need to eliminate this distinction in law and in practice. In this respect, the Committee notes with regret that the Government's latest report only repeats the information provided in 1995 and does not refer to any change in the situation, which therefore remains contrary to the provisions of the Convention. In these circumstances, the Committee is bound once again to express the hope that the Government will not fail to reconsider the situation and take all the necessary measures to give full effect to the Convention on this point.

(b) The Committee also notes with regret that the Government's latest report also repeats word for word the information provided in 1995 with regard to the matters raised in its previous observations concerning the application of sections 5(c) and 8(b) of the above Act No. 13. In this situation, the Committee is bound to recall that where the subscription of nationals to the social security scheme is compulsory, as in the Libyan Arab Jamahiriya, the subscription of certain categories of foreign workers to the social security scheme on a voluntary basis only is contrary to the principle of equality of treatment as provided by the Convention (subject to any agreement drawn up between the Members concerned under Article 9 of the Convention). The Committee hopes once again that the Government will take the necessary measures in the very near future to bring the legislation into conformity with the Convention on this point.

II. Furthermore, the Committee notes with regret that the Government's report does not contain any information in reply to the other matters raised in its previous observations. It is therefore bound to draw the Government's attention once again to these matters.

1. Under the terms of Regulation 16, paragraphs 2 and 3, and Regulation 95, paragraph 3, of the Pensions Regulations of 1981, and without prejudice to special social security agreements, non-nationals who have not completed a period of ten years' contributions to the social security scheme (years that may be supplemented, where appropriate, by years of contributions paid to the social insurance scheme) are entitled neither to an old-age pension nor to a pension for total incapacity due to an injury of non-occupational origin. Furthermore, Regulation 174, paragraph 2, of the above Regulations seems to imply a contrario that this qualifying period is also required for pensions and allowances due to survivors of the deceased person by virtue of Title IV of the Regulations, when death is due to a disease or an accident of non-occupational origin. Since such a qualifying period is not required for insured nationals, the Committee recalls that the above provisions of the Pension Regulations of 1981 are incompatible with Article 3, paragraph 1, of the Convention. It hopes that the Government will indicate the measures that it has taken or is envisaging to give effect to this provision of the Convention.

2. Regulation 161 of the Pension Regulations of 1981 provides that pensions or other monetary benefits may be transferred to beneficiaries resident abroad subject, where appropriate, to the agreements to which the Libyan Arab Jamahiriya is a party. The Committee recalls that, in accordance with Article 5 of the Convention (read in conjunction with Article 10), each Member which has ratified the Convention must guarantee both to its own nationals and to the nationals of any other Member that 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, the provision of invalidity benefits, old-age benefits, survivors' benefits, death grants and employment injury pensions. The Committee considers that the strict application of Article 5 of the Convention is all the more necessary in the light of the mass expulsions which have taken place in the past of foreign workers from the national territory. It hopes that the Government will indicate in its next report the measures which have been taken or are envisaged to give effect to this basic provision of the Convention in both law and practice.

The Committee hopes that the Government will make every effort to take the necessary measures in the near future. It draws the Government's attention to the possibility of requesting technical assistance from the Office.