Observación (CEACR) - Adopción: 2000, Publicación: 89ª reunión CIT (2001)

The Committee notes the information supplied by the Government regarding the general compensation system for employment injury established under Decree No. 1295 of 22 June 1994, as well as the statistical data relative to the numbers affiliated to the system. It also notes with interest the details supplied by the Government in reply to its comments on the application of Articles 8, 9 and 10 of the Convention. However, the Committee wishes to draw the Government’s attention to and receive information on the following points.

Article 2(1) of the Convention.  The Committee notes with interest, from the statistics supplied by the Government, that the number of workers affiliated to the general system for employment injury is increasing, from 4,320,038 members in 1996 to 6,185,191 members in 1998. In this regard the Committee requests the Government to communicate, on the one hand, information on the measures taken to ensure that all employers conform with section 4(c) of Decree No. 1295 cited above, in the practice of affiliation of their workers and, on the other hand, to continue to communicate statistical information on the number of workers affiliated to the general system for employment injury compared to the total number of salaried persons, both in the private and the public sector. Furthermore, the Committee again requests the Government to supply detailed information on the implementation of section 4(e) of Decree No. 1295, under which employers who do not affiliate their workers to the system shall be responsible for the benefits guaranteed by the above Decree in cases of occupational accidents.

Article 5.  In reply to the earlier comments of the Committee regarding payment of compensation in the form of a lump sum where the worker suffers a definitive decrease in his or her capacity for work of between 5 and 50 per cent, the Government indicates that the legislation does not provide for the adoption of measures to ensure that the above compensation will be properly utilized. The Committee recalls in this respect that, under this provision of the Convention, compensation payable in cases of accidents where permanent incapacity results shall be paid in the form of periodical payments; they may only be paid wholly or partially in the form of a lump sum if the competent authority is satisfied that it will be properly utilized. The Committee lays all the more stress on this point since the legislation authorizes payment in the form of a lump sum for decreases in the capacity for work of up to 50 per cent, a decrease which could result in a substantial loss in earning capacity. Under these circumstances, the Committee hopes that the Government will indicate in its next report the measures taken or envisaged to guarantee the full application of this provision of the Convention.

Article 11.  1.  In its earlier comments, the Committee had recalled the need to take measures to ensure in all circumstances the payment of compensation to victims of employment injuries and their dependants and to guarantee payment in the event of the insolvability of the employer, in view of the fact that, under section 4(e) of Decree No. 1295, where the employer has not affiliated his workers to the general system for employment injury, he remains responsible for the payment of their benefits. The Government indicates in this regard that, under the Labour Code, claims arising from wages, social benefits and other compensation are accorded a preferential status. While noting this information, the Committee considers that the preferential status allowed to these claims is not alone sufficient to ensure full application of this provision of the Convention, especially where the employer is responsible for the long-term payment of benefits (disability or survivor’s benefits). It consequently requests the Government to indicate in its next report the measures taken to guarantee full application of this provision of the Convention.

2.  In reply to earlier comments by the Committee, the Government indicates that the Banking Supervisory Authority exercises financial control over the insurance companies authorized to operate in the employment injury insurance branch. Moreover, the Guarantee Fund for Financial Institutions (FOGAFIN) guarantees the payment of benefits to these workers in the event of the insolvency of the insurance companies. The Committee notes this information. It requests the Government to communicate additional information in its next reports on the implementation of the FOGAFIN guarantee, indicating in particular whether the pertinent regulation provided under section 83 of Decree No. 1295 has been adopted and, if so, supplying a copy thereof. Please also specify the manner in which medical benefits are guaranteed in the event of insolvency of insurance companies.