Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Workmen's Compensation (Accidents) Convention, 1925 (No. 17) - Mexico (Ratification: 1934)

Other comments on C017

Direct Request

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Article 2 of the Convention. Coverage of apprentices. With reference to its previous comments, the Committee notes the Government’s indication that the concept of “apprentice” is not provided for in the Federal Labour Act (LFT) or in the Social Insurance Act (LSS). Persons benefiting from the compensation provided for in the LSS in the event of an employment accident are those who are affiliated to the social security system on the basis of their employment relationship, in accordance with section 12(I) of the LSS. The Government indicates that if the situation envisaged by this provision of the Convention should nevertheless cease, the Constitution provides that the Convention should prevail over national legislation. The Committee would be grateful if the Government would explain how persons working in an enterprise or institution within the framework of vocational training are protected, in law and in practice, in the event of an employment accident, in accordance with the Convention, which guarantees them, among other measures, periodical payments in the event of permanent incapacity resulting from an accident.

Coverage of certain employees in the public sector. In reply to the Committee’s previous direct request, the Government indicates that it does not have statistical information concerning the number of public sector workers excluded from compulsory social insurance, but provides figures on the numbers of voluntarily insured persons under section 13(V) of the LSS, according to which their numbers rose from about 415,000 in January 2009 to 439,000 in May 2011. The Committee recalls that Article 2(1) of the Convention provides that national legislation on employment accidents shall apply to all workers, employees or apprentices employed by any enterprise, undertaking or establishment of whatsoever nature, whether public or private. Consequently, voluntary affiliation to employment accident insurance for a category of workers covered by the Convention does not give full effect to this provision. The Committee therefore requests the Government to provide statistical data on the number of public sector employees who are not covered by employment accident insurance and to take the necessary measures to secure that these categories of workers are subject to compulsory social insurance, including employment accidents.

Article 5. Employment accident compensation paid in the form of a lump sum. Under the terms of section 58 III(3) of the LSS, when the rate of permanent partial incapacity is between 25 and 50 per cent, the beneficiary may choose between the payment of either a pension or a lump sum. The Government indicates in its report that, if a beneficiary exhausted the lump sum, such a person would not be without protection as her or his remaining capacity for work would still be available. The Committee recalls that this provision in the Convention provides that employment accident compensation may be paid wholly or partially in a lump sum, if the competent authority is satisfied that it will be properly utilized. The Committee therefore once again invites the Government to take necessary measures to guarantee compliance with this provision of the Convention (please also refer to the direct request made under Convention No. 102).

Article 8. Procedure for reviewing the degree of incapacity. The Committee notes the Government’s indication that insured persons whose medical condition so requires may request a review of the level of their incapacity after the expiry of the initial two-year period provided for by section 60 of the LSS. The Government is requested to indicate the relevant laws or regulations in that regard.

Article 10. Normal wear and tear of artificial limbs and surgical appliances. With reference to the Committee’s previous comments, the Government indicates that, although the LSS does not provide for a specific renewal process for artificial limbs and surgical appliances, the supply of these appliances is provided for by law and must be granted by doctors for the rehabilitation of patients. The Committee wishes to recall that the renewal of artificial limbs and surgical appliances due to their normal wear and tear is a right set out by the Convention. The Government is therefore requested to indicate how this right is implemented in practice.

Article 11. Guarantees in the event of the insolvency of an insurer. In its previous comments, the Committee requested the Government to indicate how the payment of compensation to accident victims and their dependants is ensured in the event of the insolvency of an insurer chosen by the victims for the payment of their pensions.

In its reply, the Government indicates that, in accordance with the national Constitution, the State is the guarantor of workers’ rights and welfare. Regulations on the operation of insurance schemes under the social security system, including the investment of amounts accumulated in the individual accounts of insured persons, were adopted by the Secretariat of Finance and Public Credit and by the National Insurance and Finance Commission. Since 1996, the LSS has been supplemented by the Decree issued under the Pensions Savings Act, which introduced the concepts of life annuities and survivors’ pensions. Since then, insurance has consisted of two stages: first, a premium paid from the employer’s contribution to a social public insurer, which spreads the risk for the most vulnerable based on the criteria solidarity, and another premium to be paid by the Mexican Institute of Social Security (IMSS) to a private insurer chosen by the insured person. The IMSS has to ensure that the choice of insurer by each insured person is duly informed in awareness of all the available options. The Government adds that section 56 of the Pensions Savings Act is intended to safeguard the rights of workers through the transfer to a special account of the resources of investment companies administered by the insurers in the event of their insolvency or liquidation.

While noting this information, the Committee is bound to observe that the precautionary measures described by the Government aim to prevent the risk of insolvency, but do not indicate the manner in which payment of employment accident compensation would be guaranteed were insolvency to arise despite these preventive measures. The Government is therefore asked to provide the necessary clarifications on this matter. The Committee would also be grateful if the Government would indicate whether the mechanisms for the protection of workers’ claims in the event of the insolvency or dissolution of insurers have already been implemented. Please also indicate how and to what extent the State could intervene financially to take the place of insurers to compensate for losses suffered by such insurers.