Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121) - Bolivia (Plurinational State of) (Ratification: 1977)

The Committee has taken note of the information given in the Government’s most recent report, and recalls that in its previous comments it had expressed the wish for more detailed information on the effects of the occupational injuries provisions of the new Pensions Act No. 1732 of 29 November 1996 and its Regulations (Supreme Decree No. 24469 of 1997), which have completely changed the long-term benefits system. Responsibility for the administration of the social security system with regard to these benefits, including benefits payable in cases of occupational injuries, has been handed over to the "pension management companies" (AFPs), which are now responsible for registering insured persons and collecting contributions. These AFPs manage different accounts for different long-term contingencies, in particular a collective fund for occupational risks, which is financed by premiums paid by employers. The rate is set initially at 2 per cent but depends on the particular risks at each enterprise (section 49 of the Regulations). The collective occupational risks account, like the common risks account, is initially being managed by the AFPs but such risks will subsequently be covered by private insurance companies.

In order to be fully able to assess the manner in which the new pensions legislation gives effect to the Convention, the Committee considers it necessary to have some additional information, including statistical information, some of which was requested previously. The Committee also requests the Government to supply with its next report a detailed reply to certain questions raised by the Committee concerning the old social security legislation, in particular the Social Security Code, as amended by Legislative Decree No. 13214 of 1975, which remains in force in matters relating to medical treatment and temporary incapacity benefits.

Article 5 of the Convention. The Committee recalls that, when the Convention was ratified, the Government stated its intention to avail itself of the temporary exception allowed under Article 5. Under the terms of this provision, the application of national legislation concerning employment injury benefits may be limited to prescribed categories of employees, which shall total in number not less than 75 per cent of all employees in industrial undertakings. In its report, the Government refers, as regards the number of workers protected, to an annex which the ILO has not received. Furthermore, the Government indicates that the number of workers in industrial establishments is not known. The Committee recalls, as it has already had occasion to do several times before, that in order to be in a position to assess whether the requirements set out in this provision of the Convention are fulfilled, it must know the number of employees who belong to the new pensions scheme and the number of employees covered by the old social security legislation (as regards medical treatment and temporary incapacity benefits), on the one hand, and the total number of employees in industrial establishments, on the other. The Committee hopes that the Government will do all in its power to supply this information with its next report. If statistics on the number of workers employed in industrial enterprises are still not available, the Committee requests the Government in the meantime to supply statistics on the total number of employees (whatever the nature of the enterprise in which they work), so as to allow it to have an idea of the scope of protection in practice.

Article 9, paragraph 2. The Committee notes that according to section 10(6) of the Pensions Act of 1996 and section 48 of its Regulations, entitlement to benefits begins at the start of the employment relationship and elapses six months after the employment relationship has ended, if the member has not entered into a new employment. The Committee recalls that certain occupational diseases may remain latent for long periods, and that in certain cases, often the most serious ones, symptoms appear only many years later. The Committee therefore hopes that the Government will be able to re-examine the effect of section 10(6) of the Pensions Act (and section 48 of the Regulations) on compensation for occupational diseases, and that it will be able to indicate in its next report the measures taken or envisaged to ensure that diseases which should be recognized as occupational in origin, in accordance with the table in Schedule I of the Convention, give rise to compensation even if they manifest themselves after the six-month period.

Article 9, paragraph 3. Section 10 of the 1996 Pensions Act and section 71 of its Regulations provide that the invalidity pension in the event of occupational invalidity is paid until the member reaches the age of 65 years. A similar provision is contained in section 75 of the Regulations. The Committee requests the Government to indicate the measures taken or envisaged to ensure that, in accordance with Article 9, paragraph 3, of the Convention, disability and survivors’ benefits payable in cases of personal injury at a level prescribed by the Convention are paid for the full duration of the contingency.

Article 14, paragraph 1. The Committee has taken note of the provisions in the Pensions Act and its Regulations concerning pension entitlements in cases of occupational invalidity. The Committee requests the Government once again to indicate the measures taken or envisaged to ensure that invalidity pensions are paid from the end of the period during which temporary disability benefits are payable (according to section 29 of Legislative Decree No. 13214 of 1975, temporary disability benefits are restricted to 26 weeks, with the possibility of extension to 52 weeks).

Article 19 (in conjunction with Articles 13, 14 and 18 of the Convention). In reply to the Committee’s previous comments, the Government indicates in its report that it has not applied the provisions of Article 19 or Article 20 to calculate industrial injury benefits. The Committee recalls that, while States are free to adopt their own rules and methods for calculating benefits, the amount must nevertheless be determined in such a way as to be not less than the amount prescribed in Articles 19 or 20 of the Convention (read in conjunction with the table in Schedule II of the instrument). The calculation methods provided for by these provisions, and the parameters used, are established solely for the purpose of allowing comparisons between a given national situation and the requirements of the Convention. Given that according to section 10 of the 1996 Pensions Act (read in conjunction with section 5), as well as sections 59, 70, 72, 76, 77 and following sections of the Regulations, invalidity and survivors’ pensions payable in cases of occupational injuries are calculated in relation to the worker’s basic wages, Article 19 of the Convention is applicable for the purpose of ascertaining whether the level of invalidity and survivors’ benefits prescribed by the Convention has been reached. This also applies in the case of temporary invalidity benefits which, according to section 28 of Legislative Decree No. 13214 of 1975, are equivalent to 75 per cent of pensionable wages. Since a maximum limit is prescribed, as authorized by Article 19, paragraph 3, of the Convention, both for the basic pay used to calculate invalidity and survivors’ pensions (60 per cent of the national minimum wage, according to section 5 of the Act) and for the pensionable wages (section 58 of Legislative Decree No. 13214 of 1975, as amended), the Committee trusts that the Government will not fail to provide any statistics requested in the report form under Article 19 of the Convention (sections I and IV), in particular as regards the wages of male workers (chosen according to Article 19, paragraph 6 or 7) and the benefits paid to a standard beneficiary whose previous earnings, or whose breadwinner’s earnings, were equivalent to the wages of a skilled male worker.

The Committee has also noted that, according to information supplied by the Government in its report on Convention No. 128, family allowances are not paid during employment or during the period of the contingency. The Government therefore does not need to provide the information requested in the report form.

Article 21. In reply to the Committee’s comments, the Government indicates that the invalidity and survivors’ benefits are not periodically reviewed. The Committee feels bound to recall the importance which it attaches to Article 21 of the Convention, according to which the rates of cash benefits currently payable must be reviewed following substantial changes in the general level of earnings where these result from substantial changes in the cost of living. The Committee hopes that the Government will re-examine the question, and indicate in its next report the measures taken or envisaged to ensure the full implementation of this provision of the Convention, as regards both pensions paid under the old and the new system. In this regard, the Committee recalls that sections 2, 4 and 320 of the Regulations provide for a procedure for adjusting existing or future pensions in the light of the devaluation of the national currency in relation to the United States dollar. The Government is also asked to provide any statistical information requested in the report form under this Article of the Convention, point B, and to supply a copy of the scale of annual increases, as established by the executive authority, for existing or future pensions under the old system, in accordance with section 57 of Act No. 1732, as amended by Act No. 2197 of 9 May 2001.

Article 22. The Committee notes that, according to section 51 of the Regulations implementing the 1996 Pensions Act, the member must, in the case of a work accident, notify his employer either directly or through a third party and fill out an accident report form. This must be signed by the member or his representative and by the employer. It must then be sent to the AFP within ten days of the accident, and it would appear from section 51(3) of the Regulations that the invalidity and survivors’ pension payable in cases of work injury is refused if the AFP does not receive the form within the prescribed period. If the failure to present the form is due to the employer, the member or his representative can inform the Superintendence of Pensions within ten days of the accident, and this will result in benefits being paid. The Committee recalls that, according to Article 22, paragraph 1(f), payment of a benefit may be suspended if the person concerned fails to comply with rules prescribed for verifying the occurrence or continuance of the contingency. At the same time, the Committee considers that those rules should not be such as to make it difficult or impossible to recognize an entitlement to benefits. In this regard, the time limit of ten days under section 51 for notification of an accident appears to be very short, especially if the accident is a serious one or leads to the death of the worker. The Committee therefore hopes that the Government will re-examine the situation and indicate the measures taken or envisaged to ensure that failure to observe the period of ten days established by section 51 of the Regulations does not entail loss of entitlement to invalidity benefits, particularly in cases where the worker is unable to deal with the notification himself. The Committee also considers that where notification is not made because of the employer, the latter should be liable to sanctions and the worker’s pension entitlements should not be affected. In addition, the Committee requests the Government to indicate whether use is made of the other provisions of Article 22, paragraph 1. If that is the case, the Government is asked to indicate the applicable legislation.

Article 24, paragraph 1. The Committee has taken note of the Government’s statement to the effect that the protected persons do not participate in the management of the new system. Given that according to Article 24, paragraph 1, of the Convention, persons protected shall participate in the management of the scheme, the Committee trusts that the Government will wish to re-examine the question and indicate in its next report the measures taken or envisaged to give effect to this fundamental provision of the Convention.

Article 24, paragraph 2, and Article 25. The Committee has taken note of the information communicated by the Government referring in particular to the Superintendence of Pensions and the General Directorate of Pensions, which administers the old distribution-based pensions system. The Committee hopes that the Government’s next report will contain detailed information on the measures taken in this regard by these institutions, and also asks the Government to indicate whether the actuarial studies and calculations required concerning the financial balance of the new pensions system are carried out regularly, and to communicate the result of those studies and calculations.

Article 26, paragraph 2. The Committee requests the Government to supply with its next report statistics on the frequency and severity of industrial accidents in accordance with this provision of the Convention.

*  *  *

In addition, the Committee would like detailed information from the Government on the application in practice of sections 58, 81, 315 and 317 of the Regulations implementing the Pensions Act (No. 1732 of 1996), indicating in particular whether and how invalidity and survivors’ benefits payable in cases of occupational injury under the old distribution-based pensions system continue to be paid in full. The Committee trusts that the Government will take all the necessary measures to review these pensions in a manner that reflects changes in the cost of living and the general level of earnings, in accordance with Article 21 of the Convention.

[The Government is asked to reply in detail to the present comments in 2003.]