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

The Committee refers the Government to its observation and requests further information on the following points.

Article 4 of the Convention. The Committee notes from the information sent by the Government that Act No. 16744 of 1968 on social insurance against risks of occupational accident and disease applies to all workers including, pursuant to section 2, all those who work for others. So that it can assess more accurately how the Convention and the legislation are applied in practice, the Committee asks the Government to provide information in its next report on the number of employees actually covered by the insurance against the risk of occupational accident and disease in relation to the total number of wage earners.

Article 7. The Committee notes that according to section 5(4) read in conjunction with section 29 of the abovementioned Act, accidents due to force majeure which is totally unrelated to work give no entitlement to the cash benefits established in the Act, although the burden of proof of such force majeure lies with the employer. While fully aware that according to Article 7 of the Convention, national legislation prescribes the definition of "industrial accident", the Committee nonetheless points out that section 5 of Act No. 16744 on force majeure is restrictive in that it does not allow coverage of all accidents incurred in or in connection with work. The Committee would therefore be grateful if, when the legislation is next revised, the Government would consider dropping all provisions relieving employers of liability in the event of force majeure unrelated to work. The Committee would draw the Government’s attention in this connection to Paragraph 5(a) and (b) of Recommendation No. 121. Meanwhile, it asks the Government to provide in its future reports examples of the manner in which the provisions of Act No. 16744 on force majeure unrelated to work are applied in practice and to send any copies of administrative, judicial or other decisions given in this regard.

Article 9, paragraph 3. According to section of Act No. 16744 and sections 3 and 86(2) of Legislative Decree No. 3500 of 1980 establishing a new pensions system, payment of total or partial invalidity benefit for occupational injury ceases at age 65 for men and age 60 for women, the ages at which these workers become entitled to an old-age pension, pursuant to the provisions of Legislative Decree No. 3500. The Committee requests the Government to provide detailed information on the manner in which, in practice, the benefit payable under Act No. 16744 is converted to an old-age pension. Please also indicate whether the guarantee laid down in section 53(2) of Act No. 16744 that a new pension may in no event be lower than the pension paid to the invalid or less than 80 per cent of the base wage taken to calculate the pension continues to apply throughout the contingency regardless of the form of payment (see under Article 21 below).

Article 10, paragraph 1(c), (d) and (g). Please state whether, and if so under which provision, workers who sustain occupational injury are entitled to nursing care at home where necessary. Please also indicate whether the hospitalization provided for in section 29(1)(b) of Act No. 16744 includes free maintenance in the hospitals or medical institutions concerned. Lastly, the Committee requests the Government to supply further information on the manner in which effect is given to Article 10(1)(g) on treatment at the place of work.

Article 17. Please provide further information on any regulations implementing section 63(2) of Act No. 16744 which provides for the review of certification of incapacity at the request of the injured person.

Article 18, paragraph 2. Please indicate the manner in which effect is given to this provision of the Convention on funeral benefit, specifying the applicable provisions of the legislation.

Article 19 (in conjunction with Articles 13, 14 and 18). 1. The Committee notes the information supplied by the Government concerning the amount of benefits for temporary incapacity, invalidity and survivors. It notes in particular that the amount is based on the beneficiary’s previous wage and that in these circumstances Article 19 would appear to apply. So that it can assess more accurately the manner in which the Convention is applied in practice with regard to the amount of the benefits, the Committee hopes that the Government will not fail in its next report to send all the information, including statistics, requested by the report form, adopted by the Governing Body, under Article 19 of the Convention (in particular, Titles I, II, III and V) for incapacity benefit, invalidity benefit and survivors’ benefit.

2. Please state whether, in accordance with paragraph 10 of Article 19, a minimum amount is prescribed for periodical payments provided in the event of the permanent incapacity or death of the injured person.

Article 21 (Review of benefits). The Committee requests the Government to indicate the procedure for reviewing invalidity and survivors’ benefits paid for occupational injury, specifying the applicable provisions of the legislation. Please also provide all the statistical information requested by the report form under Article 21 of the Convention.

The Committee would also appreciate the same kind of information on the old-age pensions that replace invalidity benefits once the beneficiary reaches the age of entitlement to pension.

Article 2, paragraph 2. Please indicate whether, and, if so, under which provisions, where a cash benefit is suspended, part of it is paid to the dependants of the person concerned.

Article 23. Please indicate the appeal procedures that apply where administration is delegated pursuant to section 72 of Act No. 16744.

Article 24 (Participation of representatives of the persons protected). Please indicate whether, and, if so, under which provisions, representatives of the persons protected participate in the management of the employment injury scheme where the scheme is managed by an employers’ mutual company or an enterprise to which administration may be delegated, pursuant to section 11 and 72 of Act No. 16744.

Article 26, paragraph 1. 1. Please indicate the measures taken under the national health service system to ensure prevention of industrial accidents and occupational diseases in practice.

2. Please provide information on the rehabilitation services provided and the measures taken for the placement of disabled persons in suitable employment, in accordance with paragraph 1(b) and (c) of Article 26 of the Convention. Please also indicate the steps taken to ensure supervision of the application of section 71(1), Act No. 16744 requiring the enterprise to transfer workers sustaining occupational injury to tasks in which they are not exposed to the pathogenic agent.

3. Lastly, the Committee requests the Government to provide the full text of Supreme Decree No. 109 of 1968 regulating the definition and evaluation of occupational accidents and diseases.

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