Demande directe (CEACR) - adoptée 1993, publiée 80ème session CIT (1993)

With reference to its previous comments, the Committee notes the detailed information supplied by the Government in its report. It wishes to draw its attention to the following points.

Part IV (Unemployment benefit), Articles 20 and 24 of the Convention (also in relation to Article 69). (a) Under the terms of section 28(1)(a) of the Social Security Contributions and Benefits Act of 1992, a person may be disqualified from receiving unemployment benefit for a period not exceeding 26 weeks when he has lost his employment through his misconduct. The Committee recalls the information supplied by the Government in its report for the period 1958-60 which maintains that the term "misconduct" employed by the legislation was interpreted by case law and in practice as equivalent to "wilful misconduct", in accordance with Article 69(f) of the Convention. The Committee would be grateful if the Government would confirm whether this practice is still in force.

(b) The Government states that the requirement to actively seek work in order to be entitled to unemployment benefit was introduced in 1989, in the light of evidence that some unemployment claimants were making little effort to find a job. The introduction of this requirement was aimed to encourage them to go about their job search in a more positive and organized way. Any person claiming unemployment benefit must show that he is both available for work and actively seeking work, which means that he is willing and able to take up a job opportunity immediately as one arises. The Government adds that the reasonable steps that an unemployed person has to take each week to find work will vary from individual to individual. It may mean contacting local employers, answering advertisements in newspapers or making inquiries about possible job offers. It is however recognized that the job opportunities available to some unemployed people may be limited, perhaps due to their age or health problems. Therefore, all an individual's circumstances are taken into account in determining whether the unemployed person has taken reasonable steps to find work. Although some simple record of the job applications made or other steps taken is helpful, an unemployed person is not penalized just because he or she cannot provide proof of them.

The Committee notes this information. It also notes section 57 of the Social Security Contributions and Benefits Act of 1992, and the Social Security (Unemployment, Sickness and Invalidity Benefit) Amendment No. 2, Regulations No. 1324 of 1989, of which Regulations 12B to D specify certain aspects of the requirement to be actively seeking employment. In particular, Regulation 12B lays down that the steps which a person is required to take if he is to be regarded as actively seeking employment shall be those which are reasonable in his case as offer him his best prospects of receiving offers of employment. In this respect, the Committee recalls that Article 20 of the Convention provides that the contingency covered shall include suspension of earnings "due to inability to obtain suitable employment in the case of a person protected who is capable of, and available for, work". According to this provision, the applicant must be both capable of and available for work. It also implies the will to seek work and to accept a suitable job. It should be emphasized in this respect that, although Article 20 of the Convention does not refer explicitly to the requirement to be effectively seeking a job, a positive attitude by the unemployed person is nevertheless expected since, under Article 69(h) of the Convention, the unemployment benefit may be suspended where the person concerned has failed to make use of the employment services placed at his disposal. The Committee therefore hopes that, when evaluating the steps taken by unemployed persons to actively seek employment as a requirement for obtaining unemployment benefit, the authorities responsible for the administration of the unemployment insurance scheme will continue to take into account the obligations deriving from Part IV of the Convention. In this context, the Committee notes that during the period 1989-91, there were 2,135 cases of the suspension of unemployment benefit on these grounds. It requests the Government to supply information on the reasons which gave rise to such suspensions, particularly when these occurred during the minimum duration for the provision of benefits set out in Article 24 of the Convention (13 weeks within a period of 12 months, or 13 weeks in each case of suspension of earnings). It also requests the Government to indicate whether new regulations have been adopted under section 57(3) of the Social Security Contributions and Benefits Act of 1992 and whether guidelines have been issued for the authorities responsible for the administration of the social insurance scheme specifying the way in which the requirement that unemployed persons must be actively seeking employment is to be implemented in practice. If so, it would be grateful to receive the text of such regulations and guidelines.

(c) The Committee notes from the information supplied by the Government in its report on the Convention, and in its 24th report on the application of the European Code of Social Security, that section 12 of the Social Security Act of 1989 amended the rule by which a person could be disqualified from receiving unemployment benefit for having refused suitable employment. Section 28 of the Social Security Contributions and Benefits Act of 1992 provides for disqualification from receiving unemployment benefit for a period not exceeding 26 weeks, particularly in the following cases: under subsection (b) if the unemployed person, "without good cause", has refused or failed to apply for any employment which has been properly notified to him as vacant or refused to accept the situation when offered to him; under subsection (c) if he has "without good cause" neglected to avail himself of a reasonable opportunity of employment. In this connection, Regulation 12E introduced by Regulations No. 1324 of 1989 sets forth certain indications with respect to the criteria to be taken into consideration in determining "good cause".

Furthermore, as stated by the Government in its report, section 29 of the above Act of 1992 provides that persons who have just become unemployed are authorized, for a limited time (termed the "permitted period") to limit their search for employment to their usual occupation at a level of remuneration not lower than they are accustomed to receive. In this respect, the Committee notes that, in accordance with the implementing regulations (Regulation 12F), the "permitted period" covers a period of from one to 13 weeks depending on the experience and skills of the person and the employment opportunities available. In view of the provisions of Articles 20 and 24 of the Convention, the Committee requests the Government to indicate whether there have been cases in which, in practice, the authorities responsible for the administration of unemployment insurance have limited the application of section 29 of the Social Security Contributions and Benefits Act of 1992 to a "permitted period" of less than 13 weeks.

The Committee also requests the Government to supply examples of the application in practice of the provisions of section 28 of the above Act of 1992 and of Regulation 12E, introduced by Regulations No. 1324 of 1989, which replaced the condition concerning the impossibility of obtaining a suitable job by the more general and apparently more restrictive concept of refusing employment (or any similar act) without "good cause". Finally, the Committee requests the Government to supply the text of any new regulations adopted under section 28(5) of the above Act of 1992, and the text of any guidelines which may be issued for the use of the competent authorities to specify the manner in which these provisions are to be implemented in practice.

(d) In its previous comments, the Committee requested the Government to supply detailed information on the implementation in practice of section 44(1)(b) of the Social Security Act of 1986, which amends section 19 of the Social Security Act of 1975, and which provides that an employed earner who has withdrawn his labour in furtherance of a trade dispute but does not fall within section 44(1)(a) is disqualified from receiving unemployment benefit for any day in which his labour remains withdrawn. (Under section 44(1)(a) of the Social Security Act of 1986, an employed earner who has lost employment as an employed earner by reason of a stoppage of work due to a trade dispute at his place of employment is disqualified from receiving unemployment benefit for any day during the stoppage unless he proves that he is not directly interested in the dispute (subject to the provisions of subsection 2).) In its report, the Government states that it does not have information on specific cases where section 44(1)(b) of the Social Security Act of 1986 was applied. However, it confirms that the practical effect of the relevant provisions of the legislation is that a person who has lost his employment because of a stoppage of work due to a trade dispute at his place of employment is disqualified from receiving unemployment benefit for the duration of the strike, unless he can prove that he is not participating in or directly interested in the trade dispute which caused the stoppage; or that he has become a bona fide employee elsewhere; or that his employment has terminated by reason of redundancy.

The Committee notes this information. It would be grateful to be duly informed of the manner in which section 44(1)(b) of the Social Security Act of 1986 has been applied in practice should a case arise.

Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). The Committee notes the statistics supplied by the Government in its report concerning the calculation of periodical benefits. It notes in particular that the wage of the ordinary adult male labourer for the purposes of Article 66 of the Convention is based on the weekly wage rate for an engineering labourer for a 39-hour week, as negotiated at the national level in 1987 and reviewed to reflect movements in mechanical engineering earnings since November 1987. According to these statistics, the wage of an ordinary adult male labourer is L117.70 per week. Although the Government does not specify the year to which the above wage corresponds, the Committee understands that it applies to 1982 since, in the information supplied by the Government under Part V (Old-age benefits) of the Convention, Article 28, it compares the weekly contributory old-age benefit paid as of April 1992 (L86.70) with the above wage of L117.70 per week.

The Committee however notes that, according to the statistics published in 1992 by the United Kingdom Department of Employment (New Earnings Survey 1992, Part C, Analyses by Industry, table C 78.3), the weekly earnings (excluding overtime effects) in April 1992 for a manual worker in the mechanical engineering industry belonging to the lowest decile was L162.04, which represents a difference of L44.34 per week in comparison with the statistics supplied by the Government in its report. The Committee therefore hopes that the Government will be able to re-examine the manner in which the wage of an ordinary adult male labourer is calculated for the purpose of calculating periodical benefits and that it will be able to supply detailed information in this respect. It also hopes that the Government will consider the possibility of referring in future to the statistics published by the Department of Employment in its earnings surveys.

Since the legislation cited by the Government in its report was received too late to be examined at the present session, the Committee has had to postpone its examination of it.

[The Government is asked to report in detail for the period ending 30 June 1994.]