Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes notes of the information supplied by the Government in its report and of the documents appended thereto. It notes with interest that technical assistance was supplied by the ILO to the competent Peruvian authorities with a view to improving application of the Convention.

Health-care scheme

Part II (Medical care), Article 10 of the Convention (in conjunction with Article 8). In response to the Committee’s previous comments and request for information on the provision of medical care, including home visits, without any age requirement, the Government indicates in its report that there are several channels through which the Health Care Social Security System (ESSALUD) provides domiciliary care and visiting, including the Domiciliary Care Programme (PADOMI), open to persons over 70 years of age and persons of under 70 with physical difficulties. Apart from PADOMI, the Government refers to primary and secondary health-care centres, which also offer domiciliary visiting for medical follow-up of patients, regardless of age, as part of the measures for families of at-risk users or for treatment follow-up, and to domiciliary care visits carried out by the services of third-category large hospitals. The Committee notes with interest this information and the related statistical information supplied by the Government. Since the Government’s report provides information on the ESSALUD system, the Committee would be grateful for information, including statistics, showing the situation with regard to domiciliary visiting for persons affiliated to Health Care Providers (EPS).

Part II (Medical care), Article 9, Part III (Sickness benefit), Article 15 and Part VIII (Maternity benefit), Article 48. With reference to its previous comments, the Committee notes the information and the statistics supplied by the Government concerning the care and benefits provided by ESSALUD in the departments of Amazonas, Huancavélica, Huanuco, Madre de Dios, Moquegua and Pasco. It notes in particular that, according to the Government, the EPS system has received no applications for membership in the abovementioned departments because there are few workers in the formal economy in these regions, and requests the Government to keep it informed of any developments in this respect.

The Committee also notes the information on the number of employees protected by ESSALUD in the abovementioned departments and the distribution, according to type, of ESSALUD heath-care establishments in these departments. It requests the Government to keep it informed of any measures taken or envisaged to supplement existing health establishments in departments such as Huancavélica, Madre de Dios and Moquegua, where, by comparison with the other departments mentioned above, there are relatively fewer such establishments in relation to the number of persons ensured by ESSALUD.

Part XIII (Common provisions) (in conjunction with Parts II, III and VIII), Article 71. In reply to the Committee’s previous comments on the manner in which the Health Care Providers Supervisory Authority (SEPS) supervises the operation of the health-care system, the Government states that it appends to its report copies of reports on the supervision of Novasalud EPS and Rimac Internacional EPS, the feasibility studies requested previously and decisions issuing penalties under resolution No. 026-2000-SEPS/CD. The Committee notes, however, that these documents are not appended to the report and requests the Government to send them with its next report.

Article 72. In its previous comments, the Committee requested the Government to indicate the measures it intended to take to allow the participation of the persons protected in the administration of EPS and the health-care services of individual enterprises. In its report, the Government indicates that, although the legislation does not provide for such participation, there are supervision and control mechanisms in the two areas referred to by the Committee. It again indicates that the regulation and supervision of EPS is the responsibility of the SEPS, a public body created for this purpose. It adds, with regard to the health-care services of individual enterprises, that the latter must have the approval of the Ministry of Health and must submit their health plans to ESSALUD in order to be allowed to carry out their activities. The Committee takes note of this information. It shares the Government’s view that such approval and supervision procedures do provide some guarantee for the rights of insured persons. However, it points out that the purpose of the participation provided for in this provision of the Convention is to associate the insured persons with the management of these institutions and services. This is the more necessary in the case of EPS because according to the legislation (sections 15 and 16 of Act No. 26790), enterprises which provide health care, through EPS or their own care services, are entitled to a credit drawn from workers’ contributions equal, in principle, to 25 per cent of the latter. The Committee therefore hopes that the Government will re-examine the matter of participation by insured persons in the management of independent insurance institutions and that it will very shortly report on measures taken or envisaged to bring the legislation into line with this provision of the Convention.

Pensions scheme

I. Private pensions system

Part V (Old-age benefit), Articles 28 and 29, paragraph 1 (in conjunction with Article 65 or Article 66). In answer to the Committee’s previous comments requesting information on the rates of pensions in the private system, together with the statistics on this subject requested in the report form, the Government again indicates that the rates of the pensions provided under the private pensions system (SPP) cannot be determined in advance since they depend on the capital accumulated in individual capitalization accounts, and in particular on the earnings of these accounts. With regard to the minimum of 40 per cent of the reference wage applying to old-age benefit, the Government indicates that the SPP having existed for only ten years, it is only possible to estimate or project on the basis of the average earnings obtained since the SPP was set up, which gives higher percentages than the 40 per cent established by the Convention. The Government furthermore provides statistical data indicating that 7,730 people received old-age benefit under the SPP, the average pension being 840 new soles.

While noting the abovementioned information and statistics, the Committee considers that they do not allow it to determine whether full effect is given to the Convention. It must therefore reiterate its request to the Government to provide all the statistics required by the report form so that it can fully assess the extent to which old-age benefit attains, in all instances and regardless of the type of system selected, the level prescribed by the Convention.

With reference to its previous comments, Committee notes the information supplied by the Government to the effect that pursuant to Act No. 27617 of 1 January 2002 the amount of the minimum pension under the SPP is 415 new soles. It notes in particular that this pension may be granted to persons born before 31 December 1945 who, on reaching the age of 65 years, have been affiliated for at least 20 years to the SNP or the SPP and whose contributions amount to not less than the statutory minimum wage. The Committee reminds the Government that Article 66 of the Convention may be applied within the framework of a private pensions system provided that the minimum old-age benefits payable to a standard beneficiary with 30 years of contribution are not less than the minimum required by the Convention (40 per cent of the wage of an ordinary adult unskilled male labourer as defined in paragraphs 4 and 5 of the abovementioned Article).

Article 30. With reference to its previous comments, the Committee notes that according to the Government, programmed retirement is based on life expectancy, reassessed yearly, and may be revoked where the insured person is able to switch to another retirement regime. The Government again refers to the abovementioned minimum pension, financed from public funds, which may be paid to persons fulfilling the applicable age and contribution requirements. The Committee takes note of this information. It requests the Government to indicate whether this minimum pension is also granted to insured persons of 65 years of age with 20 years of contribution who have opted for programmed retirement and who have exhausted the capital accumulated in their individual accounts. If so, please indicate the relevant legal provisions. The Committee once again points out that under Article 29, paragraph 1, read in conjunction with Articles 28 and 65 or 66, an old-age benefit at least equal to 40 per cent of the reference wage must be secured to a protected person who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 30 years of contribution.

Part IX (Invalidity benefit), Article 58. With reference to its previous comments, the Committee notes the Government’s statement that a worker with invalidity and survivors’ coverage is entitled to invalidity benefit for life payable by the insurance company. The Government adds that insured persons who are not covered for invalidity under the private pensions system receive a pension drawn from their capitalization accounts and may, under this regime, receive a pension in the form of a life annuity payable until their death. While noting this information, the Committee points out that by virtue of section 44 of Supreme Decree No. 054-97-EF issuing the single text of the law on the private pension fund administration system, and of section 131 of Supreme Decree No. 004-98-EF, a worker suffering from permanent or partial invalidity may choose between four forms of benefit, which include programmed retirement. Since, under the programmed retirement system insured persons may make monthly withdrawals until they have exhausted the capital in their individual accounts, which is contrary to the principle that the benefit must be paid throughout the contingency, the Committee again requests the Government to indicate the measures taken or envisaged to ensure that full effect is given to this provision of the Convention in the event of total permanent invalidity of a worker who has opted for programmed retirement.

Part XIII (Common provisions), Article 71, paragraph 1. In response to the Committee’s previous comments, the Government reiterates that workers’ contributions are fixed on the basis of their earnings, which allows differentiated distribution of the costs of fund administration by private pension fund administrators (AFP). The Government adds that there was a reduction of such costs in 2002 and that it hopes that this trend will continue. The Committee notes this information but observes that the Government’s report provides no response to its previous observation that the cost of the benefits, certain administrative expenses and the cost of certain commissions are at the exclusive charge of workers who are insured under an AFP, with employers’ contributions being of a voluntary nature. Consequently, the Committee must again point out that by virtue of Article 71, paragraph 1, "the cost of the benefits … and the cost of the administration of such benefits shall be borne collectively by way of insurance contributions or taxation or both in a manner which avoids hardship to persons of small means and takes into account the economic situation of the Member and of the classes of persons protected". The Committee hopes that the Government will take all necessary steps to ensure that full effect is given to the Convention on this point.

Article 71, paragraph 2. The Committee once again points out that according to this provision of the Convention, the total of the insurance contributions borne by the employees protected shall not exceed 50 per cent of the total of the financial resources allocated to the protection of employees and their spouses and children. So that the Committee can assess the effect given to this provision of the Convention, it trusts that the Government will provide in its next report the statistics requested in the report form under this Article of the Convention both for the private and for the public pensions and health systems.

II. System of pensions administered by the ONP

Part V (Old-age benefit), Article 29, paragraph 2(a). In its previous comments, noting that there was a qualifying period of 20 years of contribution for entitlement to a full retirement pension, the Committee reiterated that according to paragraph 2(a) of Article 29, where the old-age benefit is conditional upon a minimum qualifying period, a reduced benefit shall be secured to a protected person who has completed a qualifying period of 15 years of contribution or employment. In its last report, the Government states that this provision applies only to pension systems in which the length of the qualifying period for entitlement to a pension is 30 years and so should not apply to the Peruvian system, in which the length of the qualifying period has not been set at 30 years. The Government refers in this connection to Act No. 25967, which requires a qualifying period of at least 20 years of contribution for entitlement to old-age benefit. The Committee must nevertheless point out once again that this provision of the Convention applies to all old-age benefit schemes which establish a minimum period of contribution or employment, whether 20, 25 or 30 years, and provides for entitlement to a reduced pension for workers completing a qualifying period of 15 years of contribution or employment. In these circumstances, the Committee can only hope that the Government will re-examine this matter and will take the necessary steps in the near future to ensure that the protected persons may benefit from a reduced pension after 15 years of contribution, in accordance with this provision of the Convention.

The Committee further notes that under the SNP, minimum pensions are secured to persons who have not completed the minimum requirement of 20 years of contribution to the scheme pursuant to Act No. 27655 and Supreme Decree No. 028-2002-EF. It would be grateful if the Government would provide further information on the effect given to these texts in practice.

Part XI (Standards to be complied with by periodical payments), Articles 65 and 66. The Committee notes with interest the measures taken - and the progress made - to increase the amount of the pensions paid by the SNP. It observes in particular that between December 1997 and September 2004 these pensions increased by 86 per cent on average, and by 65 per cent in the case of persons with a total of between 20 and 33 years of contribution. In view of the importance it attaches to this matter, the Committee requests the Government to keep it informed of the application of measures to review the rates of periodical payments in order to take account, inter alia, of rises in the cost of living, in accordance with Articles 65, paragraph 10, and 66, paragraph 8. Please also provide statistical information on the adjustment of pensions, taking into account factors such as the cost of living.

III. Supervision of the private and public pension systems

In its previous comments, the Committee pointed out the need for actuarial studies and calculations to be carried out regularly in order to ensure application of Articles 71, paragraph 3, and 72, paragraph 2, in both the private and the public pensions systems. In reply, the Government states that it appended to its report a technical study used as a basis for a bill on maintenance of the rates of compulsory contributions to pension funds. Since the document in question was not attached to the Government’s report, the Committee requests the Government to supply with its next report other, up-to-date examples of studies on sound finances in public and private institutions that provide old-age benefit.

With regard to the private system, the Committee takes note of Supreme Decree No. 079-2000-EF, and Resolution No. 052-98-EF/SAFP, which concern the minimum earnings of AFPs and the rules for supervision of the SPP. It also notes that, according to the Government, where an AFP fails to reach the profitability threshold, it is liable from its own resources up to the established threshold, failure to meet this obligation being duly penalized. The Committee nonetheless notes that the minimum profitability threshold is determined on the basis of the average earnings of all private pension funds and does not necessarily guarantee real, above-inflation profitability able to protect affiliates effectively. It would be grateful if the Government would indicate whether there are any mechanisms, including prudential arrangements, to preserve the rights of insured persons where profitability thresholds are not met.

IV. Participation of protected persons in the administration of the systems

With regard to the public pensions system, the Committee notes with interest that following the adoption of Act No. 27617 of 1 January 2002 to reorganize the public and private pensions systems, section 3 of which amends section 17 of Legislative Decree No. 817 of 23 April 1996, the Consolidated Reserve Fund (FCR) is now administered by a Board, the officers of which include two representatives of retired persons appointed at the proposal of the National Labour Council.

With regard to the private pensions system, the Committee notes that the Government provides no information as to the measures taken or envisaged to give effect, under the private pensions system, to Article 72, paragraph 1, which provides that where the administration is not entrusted to an institution regulated by the public authorities or to a government department responsible to the legislature, representatives of the persons protected shall participate in the management, or be associated therewith in a consultative capacity, under prescribed conditions. The Committee therefore expresses the hope that the Government will take the necessary steps as soon as possible to bring national laws and regulations into full conformity with this provision of the Convention as regards the private pensions system.

V. Communications from representative organizations
  on the application of the Convention

The Committee notes that in its last report, received in December 2003, the Government does not reply to the communication, received by the Office on 10 April 2003, from the Association of Former Employees of the Peruvian Social Security Institute alleging non-compliance with a decision of 12 January 2001 issued by the Constitutional Court ordering adjustment of the pensions provided under Legislative Decree No. 20530. The Committee trusts that the Government will reply to these allegations in its next report.

With reference to the observations made by the Association of Retired Oil Industry Workers of the Metropolitan Area of Lima and Callao, the Committee notes the Government’s statement that it will keep the Committee informed of the outcome of the legal proceedings currently under way. In these circumstances, the Committee can only refer the Government to its previous comments and hope that the Government will in due course provide the final court decisions on the cases brought in connection with the observations made by the abovementioned association.

With regard to the communication submitted by the World Federation of Trade Unions (WFTU), the Committee notes that the Government’s report contains no information pertaining to this communication. The Government will no doubt reply in its next report to the allegations made by the National Central Association of Retired Workers and Pensioners of Peru (CENAJUPE) regarding the adjustment of pensions.

The Committee raises other matters in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2005.]