Observation (CEACR) - adoptée 1995, publiée 83ème session CIT (1996)

The Committee notes the adoption of Act No. 100 of 23 December 1993 establishing an overall social security system, as well as Decree No. 1295 of 22 June 1994, governing the organization and administration of the general system for employment injury. Under the new system, all employers have to affiliate under the general system for employment injury (section 4(c) of the Decree), which covers all the public and private bodies, standards and procedures designed to prevent, protect and assist workers with regard to the effects of diseases and injuries which may arise during or as a consequence of their work (section 1). The choice of bodies which administer the general system for employment injury is free and voluntary for the employer (section 4(f)). However, such bodies can only be established by the Social Insurance Institute and by life insurance companies which obtain authorization from the Banking Supervisory Authority to operate in the employment injury insurance branch (section 77 of the Decree). Employers which are registered with the Social Insurance Institute when the Decree comes into force may transfer their affiliation to any other body administering the employment injury branch, provided it is duly authorized (section 78 of the Decree). The new general system for employment injury came into force for private sector employers and workers as of 1 August 1994; it will be applicable to the public sector at the latest by 1 January 1996 (section 97 of the Decree). From the date of publication of the Decree, certain sections of the Labour Code respecting compensation for employment injury, as well as certain provisions of Decree No. 3135 of 1968 and Decree No. 1848 of 1969, respecting public officials and employees, concerning which the Committee had commented previously, are repealed.

The Committee would be grateful if the Government's next report contained detailed information on the implementation in law and practice of the new general system for employment injury established by Decree No. 1295 of 1994 under each of the Articles of the Convention. Furthermore, it would be grateful in particular to be provided with information on the following points.

Article 2, paragraph 1, of the Convention. 1. The Committee requests the Government to provide statistics on the number of workers registered with the general system for employment injury by their employer, under the terms of section 4(c) of Decree No. 1295, and their proportion in relation to the total number of employees, in both the private and public sectors.

2. The Committee also notes that by virtue of section 4(e) of the above Decree, employers which do not register their workers under the general system for employment injury shall be responsible for the benefits laid down in the above Decree, in addition to any sanctions applicable under the law. The Committee would be grateful if the Government would provide detailed information on the effect given to this provision. It also requests the Government to indicate the measures taken to ensure that in practice employers register their workers under the new general system for employment injury.

Article 5. The Committee notes that, under the terms of section 42 of Decree No. 1295, any person covered by the general system for employment injury who suffers a definitive decrease in his or her capacity for work is entitled, when the loss of capacity is less than 50 per cent, but at least 5 per cent, to compensation payable as a lump sum. The Committee recalls that, in accordance with Article 5 of the Convention, compensation may be paid as a lump sum if the competent authority is satisfied that it will be properly utilized. It would be grateful if the Government would indicate the measures which have been taken or are envisaged to ensure that full effect is given to this provision of the Convention.

Article 8. The Committee would be grateful if the Government would provide detailed information on the manner in which the new general system for employment injury is supervised in practice. Furthermore, the Committee would be grateful if the Government would also indicate the legal channels of redress available to workers in the event that their benefits are refused or that disputes arise concerning their amount.

Articles 9 and 10. The Committee requests the Government to indicate in its next report whether a maximum amount or time-limit is established for the cost of medical, surgical and pharmaceutical aid, as well as for the supply and renewal of artificial limbs and surgical appliances (section 5 of Decree No. 1295).

Article 11. 1. The Committee hopes that the Government's next report will contain detailed information on the measures taken to ensure in all circumstances, and in accordance with this provision of the Convention, the payment of compensation to the victims of employment injuries and their dependants, and particularly to guarantee payment in the event of the insolvency of the employer in cases where the latter remains responsible for the payment of benefits under the terms of section 4(e) of Decree No. 1295 due to failure to register workers under the general system for employment injury.

2. The Committee notes that under the terms of section 79 of Decree No. 1295, life insurance companies which wish to obtain authorization from the Banking Supervisory Authority to operate in the employment injury insurance branch have to possess their own assets to a level not lower than an amount determined regularly by the Government (500 million pesos in 1994). Futhermore, under the terms of section 83 of the above Decree, without prejudice to the fulfilment by reinsurance companies of their obligations, the State guarantees, through the Guarantee Fund for Financial Institutions (FOGAFIN), the payment of pensions in the event of the loss of the assets or the suspension of payments by the body administering the general system for employment injury, in accordance with regulations issued for that purpose. The Committee requests the Government to provide further information on the implementation in practice of this guarantee and to provide the text of the regulations mentioned in section 83. The Committee would also be grateful if the Government would indicate the manner in which the provision of medical care is guaranteed in the event of the insolvency of the insurer.