Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121) - Ecuador (Ratification: 1978)

The Committee notes the information supplied by the Government in its report. It notes the adoption on 30 November 2001 of the new Social Security Act. It asks the Government to indicate whether the new Act has come into force and, if so, to please provide detailed information on the extent to which the new legislation gives effect to each of the provisions of the Convention, as well as the information requested in the report form, including statistics. The Committee also requests the Government to supply any regulations that have been adopted to apply the new Act.

The Committee hopes that the next report will also contain information on the measures adopted to give effect to the following provisions, on which the Committee has been commenting for many years.

Article 8 of the Convention. The Committee requests the Government to indicate whether the internal rules and regulations of the Ecuadorean Social Security Institute (IESS) which were preventing the application of a dual-list system of occupational diseases and work have been amended. In its last report, the Government referred to the provisions of the Labour Code, particularly sections 369 and 370, that deal with occupational diseases. The Government added that the presumption in favour of the worker regarding the occupational origin of the disease is taken into account in the decisions of the Risk Verification Commission pursuant to section 370 of the Labour Code. According to the Government, these decisions, which are intended to allow diseases not mentioned in the legislation to be recognized as occupational, exempt the worker from the burden of proof, thus in effect precluding interpretation of section 5 of the General Regulations on employment injury insurance. The Committee hopes that, in order to avoid any ambiguity, the Government will be able to take the necessary measures to amend as soon as possible, as it undertook to do, sections 4 and 5 of the above General Regulations, so as to establish in the legislation the presumption of the occupational origin of the disease in favour of workers suffering from a disease enumerated in Schedule I of the Convention when they are engaged in the types of work mentioned in the Schedule. It also asks the Government to provide copies of relevant decisions taken pursuant to section 370 of the Labour Code (the Committee refers the Government to its comments in its direct request of 1996, under Article 8).

Article 9. In its previous comments, the Committee emphasized the need for measures to be taken to amend sections 12 and 19 of the General Regulations on employment injury insurance in order to give workers suffering from occupational diseases, whether acute or chronic, entitlement to the benefits envisaged by the Convention, irrespective of the period for which they have paid contributions. In its previous report, the Government indicated once again that, in cases where workers have been unable to pay the six contributions envisaged in the General Regulations on insurance (work) (sections 12 and 19), section 14 of the above Regulations is applied, under which acute occupational diseases are treated as employment accidents, so that the insured person is entitled to benefits in the form both of medical assistance and financial compensation. As it has said before, the Committee is well aware of the substance of section 14 of the General Regulations on employment injury insurance. It nonetheless wishes to emphasize that the provisions of the Convention, and particularly Article 9, which specifies that eligibility for benefits may not be subjected to length of employment, duration of insurance or payment of contributions, apply to both employment accidents and to acute occupational diseases (the latter, as is the case in Ecuador, are very often treated as employment accidents), as well as to chronic occupational diseases. In these circumstances, the Committee is bound to urge the Government once more to take the necessary steps to amend sections 12 and 19 of the General Regulations on employment injury insurance so that all workers suffering from occupational diseases, including chronic diseases, are eligible for the benefits envisaged by the Convention, irrespective of the period of contribution.

Articles 13, 14 and 18 (in conjunction with Articles 19 and 20). Amount of periodical payments due in the event of the temporary or permanent incapacity or death of the family breadwinner. Further to its previous comments, the Committee notes the information supplied by the Government in its report. Taking as a basis the provisions of the new Social Security Act, please provide all the information required by the report form under Article 19 or Article 20, depending on which of these two provisions the Government has recourse. The Committee recalls the importance it attaches to the provision of such information, which it needs in order to determine whether the level of benefits due in the event of temporary or permanent incapacity or death attains the rate prescribed by the Convention for a standard beneficiary.

Article 21. In its previous report, the Government indicated that the National Wage Council determines and reviews the wages of workers in the country in the light of the minimum wage set for various activities and occupations. It also stated that the IESS calculates the benefits payable to workers on the basis of these minimum wages; wage increases are automatically reflected in old-age and invalidity pensions, and in benefits payable for employment accidents, in accordance with the provisions of Article 21. In view of the fact that the Government has not provided the information needed to assess the real impact of increases in pensions decided upon by the IESS in relation to fluctuations in the cost of living, the Committee requests it to provide the information required by the report form under Article 21. The Government may wish to avail itself of the Office’s technical assistance for this purpose.