Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Social Security (Minimum Standards) Convention, 1952 (No. 102) - Peru (Ratification: 1961)

The Committee notes the information provided by the Government in its report and the discussion held in June 2005 in the Conference Committee on the Application of Standards. The Committee notes the information provided by the Government in its report and the attached documents.

Health-care scheme

Part II (Medical care), Article 10 of the Convention (in conjunction with Article 8). In its previous comments, the Committee requested the Government to indicate, especially through statistics, the situation with regard to domiciliary visiting for persons affiliated to Health Care Providers (EPS). In its report, the Government indicates that the Health Care Providers Supervisory Authority does not have statistical data on health plans which include the additional benefit of doctors’ visits at home. A rapid survey was therefore undertaken reviewing 50 plans out of a total of 1,354 regular contracted health plans in the EPS system and it was found that 6 per cent of the plans do not include this benefit, but that in all cases these are old plans which have been in force for over three years and are valid up to the month of September 2005. As from September 2005, all plans include domiciliary visiting by doctors. The Committee notes this information, as well as the statistics on the number of persons covered by compulsory and voluntary insurance who received care at home in 2004. It hopes that, as indicated by the Government, in future all persons affiliated to EPS will, in accordance with this provision of the Convention, benefit from domiciliary visiting for the provision of health care. It requests the Government to keep it informed of the progress achieved in this respect, and to provide statistical information illustrating the situation in this regard.

Part II (Medical care), Article 9, Part III (Sickness benefit), Article 15, and Part VIII (Maternity benefit), Article 48. In its previous comments, the Committee noted the information and statistics provided by the Government concerning the care and benefits provided by ESSALUD in the departments of Amazonas, Apurímac, Huancavelica, Huánuco, Madre de Dios, Moquegua and Pasco. It also noted the Government’s indication that the EPS system had not received applications for membership in the above areas in view of the low number of workers in the formal economy in these regions.

The Committee requested the Government to keep it informed of any measures adopted or envisaged to supplement existing health establishments in departments such as Huancavelica, Madre de Dios and Moquegua where, by comparison with the other departments mentioned above, there are relatively few such establishments in relation to the number of persons insured by ESSALUD. In its reply, the Government indicates that 84 per cent of those affiliated with EPS in the above areas have received care in the enterprises and institutions attached to the EPS system, with care being provided on average on 4.69 occasions in 2004, and that in December 2004 a clinic was registered in the department of Huanuco. Furthermore, according to the available data, health-care establishments exist in the departments of Madre de Dios, Huancavelica and Moquegua. Patients receive care when this is required by their clinical condition. The Committee notes this information with interest, as well as the detailed information on the insured population contained in the report prepared by ESSALUD in 2005. It requests the Government to provide information on the health-care establishments set up in the departments referred to above, with an indication of the type of care provided, and on the progress achieved in extending coverage to the departments of Amazonas, Apurímac, Huánuco and Pasco. It also requests the Government to provide detailed information on the geographical coverage and the numbers of persons covered by the three health programmes (ESSALUD, MINSA and SIS), in the manner requested in the report form (see the direct request).

Part XIII (Common provisions) (in conjunction with Parts II, III and VIII), Article 71. With reference to its previous comments concerning the manner in which the Health Care Providers Supervisory Authority (SEPS) supervises the operation of the health-care system, the Committee notes the supervisory reports of the Novasalud EPS and the Rimac Internacional EPS, a feasibility study requested previously and decisions applying penalties under resolution No. 26‑2000‑SEPS/CD.

Article 72. In its previous comments, the Committee requested the Government to indicate the measures it intended to take to allow the participation of the persons protected in the administration of EPS and the health-care services of individual enterprises. In its report, the Government indicates that the fact of establishing by regulation the participation of insured persons in the administration of autonomous institutions could be a breach of the constitutional right of free enterprise and the property held by private enterprises, as is the case of EPS. However, it indicates that the Health Care Providers Supervisory Authority operates a system of supervising benefits and economic and financial conditions intended to monitor solvency and the quality of the services provided in relation to the rights of insured persons. On the other hand, provisions have been established covering the process of the selection of the EPS and of health plans by insured persons. Regulations have also been issued respecting appeals and complaints, establishing the procedures to be followed by EPS users in the event of shortcomings in the service provided and failure to comply with any of the clauses of the contract. It adds that Convention No. 102 is based on the premise that public services are provided by the State. From this viewpoint, the participation of insured persons in administration is logical; nevertheless, under systems based on the participation of the private sector in the provision of public services, the role of the State is no longer the provision of benefits, but is focused on regulation and supervision; accordingly, Convention No. 102 could be interpreted in such cases as meaning that insured persons should participate in public regulatory bodies. The Committee notes the Government’s statement.

The Committee wishes to remind the Government that Convention No. 102 is formulated in very flexible terms and is not based on the supposition that the provision of public services will be carried out solely by the State. The Convention authorizes the use of very varied methods to guarantee the benefits envisaged so as to take into account the diversity of situations at the national level. Under the terms of Article 72 of the Convention, the administration may be entrusted to an institution regulated by the public authorities or to a government department or any other institution, provided that certain rules are respected. Convention No. 102 does not impose a uniform system of organization, but whatever the type of organization selected, the various interests that have to be represented in the administration of social security systems have to be taken into account, and particularly those of the persons protected. The Committee does not consider that the fact of establishing by regulation the requirement for the participation of insured persons in the administration of autonomous institutions could be in violation of the constitutional right to free enterprise and the property held by private enterprises which is enjoyed by private enterprises such as the EPS. What is important in this respect is that the interests of insured persons are represented in the administration of EPS. This is all the more important as, under the terms of the legislation (sections 15 and 16 of Act No. 26790), enterprises which provide health benefits, through EPS or their own services, are entitled to a credit on workers’ contributions which, in theory, is equivalent to 25 per cent of these contributions. The Committee shares the Government’s opinion that the procedures of accreditation and supervision can serve as a guarantee that the rights of insured persons are respected. However, it recalls that the participation envisaged in this provision of the Convention is intended to ensure that insured persons participate in the administration of these institutions and services. The Committee therefore trusts that the Government will re-examine the issue of the participation of insured persons in the management of autonomous institutions and that it will soon provide information on the measures adopted or envisaged to bring the national legislation into conformity with this provision of the Convention.

Pensions scheme

        I.     Private pensions system

Part V (Old-age benefit), Articles 28 and 29, paragraph 1 (in conjunction with Article 65 or Article 66). In reply to the Committee’s previous comments, the Government reiterates that the rates of the pensions provided under the Private Pensions System (SPP) cannot be determined in advance as they depend on the capital accumulated in individual capitalization accounts, and in particular on the return on the investments and the certificate testifying to other contributions paid, where appropriate. The Government provides information on the number of retirement pensions and their average amount in soles, as provided by the SPP as of 30 September 2004. Furthermore, based on certain assumptions, the Government makes an estimate to calculate the amount of a pension for an insured person who has contributed for 30 years. The Committee notes this information. As it is not possible under the Private Pensions System to know in advance the amount of benefits, the Government has to demonstrate that the minimum old-age pension under the National Pensions System (SNP) attains the minimum rate of benefit required by the Convention. This is all the more necessary as the minimum pension is a guarantee offered by the State to insured persons whose capital and accumulated return in their individual accounts are insufficient to attain the minimum rate required by the Convention, and to insured persons who have selected programmed retirement but have exhausted the resources accumulated in their individual account. In this respect, the Committee once again recalls that the Government may have recourse to Article 66 of the Convention within the framework of the Private Pensions System provided that the minimum old-age benefit payable to a standard beneficiary with 30 years of contribution is not less than the minimum rate required by the Convention
(40 per cent of the wage of an ordinary adult unskilled male labourer as defined in paragraphs 4 and 5 of the above Article).

Article 30. In its previous comments, the Committee requested the Government to indicate whether the minimum pension is also granted to insured persons who have reached 65 years of age with 20 years of contributions and who have opted for programmed retirement, and who have exhausted the capital accumulated in their individual accounts through the monthly withdrawals permitted by the system until the capital in their accounts is exhausted. The Government indicates that the approved minimum pension scheme is a supplementary scheme and does not replace state action. The minimum pension represents a guarantee offered by the State to workers who, while fulfilling the requirements in relation to age and contributions, do not benefit from a pension that is equal to or greater than the minimum pension established by the National Pensions System. It adds that those workers who have received a retirement pension under the programmed retirement procedure and whose account is exhausted cannot subsequently receive the minimum pension. The Committee notes this information with concern. It hopes that the Government will adopt the necessary measures to ensure, in conformity with this provision of the Convention, the payment of old-age benefit throughout the contingency,

Part IX (Invalidity benefit), Article 58. In its previous comments, the Committee noted that a worker with invalidity and survivors’ coverage is entitled to invalidity benefit for life payable by the insurance company. It also noted that when an insured person is not covered by invalidity insurance in the context of the Private Pensions System, that person receives a pension deducted from her or his individual capitalization account and may, in this context, receive a pension based on a life annuity. As, under the terms of section 44 of Supreme Decree No. 054‑97‑EF issuing the single text of the Act on the Private Pension Fund Administration System and section 131 of Supreme Decree No. 004-98-EF, a worker suffering from permanent or partial invalidity may choose between four forms of benefit, which include programmed retirement, the Committee requested the Government to indicate the measures adopted or envisaged to ensure that full effect is given to this provision of the Convention, under the terms of which the benefit shall be granted throughout the contingency. In its report, the Government indicates that when a worker is covered by invalidity and survivors’ insurance, the invalidity pension is at the charge of the insurance company and is provided for life. In the case of insured persons who are not covered by the SPP invalidity and survivors’ insurance, they are provided with a pension based on the resources in their individual capitalization accounts and other certified contributions, and receive a pension under the programmed retirement system; if the insured person is entitled to a certificate attesting to the payment of other contributions that is in the process of being issued, a preliminary pension will be provided under the programmed retirement system based on the existing balance of the individual capitalization account until reaching the statutory pensionable age. In this latter case, when the insured person reaches the statutory pensionable age, the certified contributions will be redeemed and the individual capitalization account will be closed, with the insured person receiving the redemption value of the certified contributions and whatever remains in the individual account. An insured person may opt for the programmed retirement method and then subsequently for a life annuity, which serves to ensure the provision of a minimum pension for persons affiliated to the SPP who are receiving a pension below the minimum rate or who were receiving a pension but whose individual account is exhausted. The Committee notes the above information. It requests the Government to indicate the provisions of the legislation under which this latter situation is envisaged.

Part XIII (Common provisions), Article 71, paragraph 1. In its previous comments, the Committee noted that the cost of the benefits, certain administrative expenses and the costs of certain commissions are at the exclusive charge of workers who are insured under a Private Pension Fund Administrator (AFP), and that employers’ contributions are of a voluntary nature. The Committee consequently hoped that the Government would take the necessary measures to ensure that full effect is given to this provision of the Convention. In its reply, the Government indicates that the SPP is an individual capital accumulation scheme, in which the amount of the pension is directly related to the quantity and value of the contributions made to the individual capitalization accounts of insured persons. Furthermore, the administration of the capital contained in individual accounts is the responsibility of the AFP, which receives payment for the services provided, which include a series of processes within the registration-collection-accreditation-investment-pension continuum throughout the working life of each insured person.

The Government provides information in this respect on the introduction of mechanisms to reduce the level of commissions, which have to correspond to a plan for permanent affiliation to the AFP. Moreover, if workers affiliated to the SPP interrupt the payment of their contributions, the process of investing the capital in their respective capitalization accounts is not affected and the accounts continue to generate returns. In this context, the administrators make no charge for the continued service of administering the funds. Finally, with regard to the collective financing of benefits, the SPP includes a minimum pension which allows the State to subsidize an adequate pension for those insured persons who fulfil the requirements of age and contributions set out in Act No. 27617 and who have not accumulated sufficient resources to finance the pension individually. The minimum pension is financed directly from the resources of the Public Treasury. The Committee notes this information. It regrets to note once again that, contrary to the provisions of Article 71, paragraph 1, of the Convention, both the financing and the costs of administering the private pensions scheme are at the exclusive charge of insured persons. The Committee does not believe that the minimum pension provided by the State solely in specific cases may be considered to represent collective participation within the meaning of Article 71, paragraph 1, of the Convention. On the contrary, the private pension scheme in Peru is an independent contributory scheme in which the resources destined to be used for the provision of benefits are obtained through the contributions made by insured persons. Under these conditions, the Committee hopes that the Government will take the necessary measures to give effect to this provision of the Convention, under the terms of which “the cost of the benefits (…) and the cost of the administration of such benefits shall be borne collectively by way of insurance contributions or taxation or both in a manner which avoids hardship to persons of small means and takes into account the economic situation of the member and of the classes of persons protected”.

Article 71, paragraph 2. The Committee once again points out that, under the terms of this provision of the Convention, the total of the insurance contributions borne by the employees protected shall not exceed 50 per cent of the total of the financial resources allocated to the protection of employees and their spouses and children. In its report, the Government indicates that a person insured with the SPP currently has to pay contributions to her or his individual account at a rate of 8 per cent of monthly remuneration. Compulsory contributions make it possible to accumulate capital gradually to finance the retirement pension, as SPP pensions are directly related to the contributions paid individually by workers during their working lives and the return obtained by the AFP through the investment of such resources on the capital market. In this respect, it notes that the retirement pension of an insured person who has made 30 years of contributions will be financed to the level of 44.2 per cent by compulsory contributions and by the returns from the investments of the pension fund. The Committee trusts that the Government will provide in its next report the statistics required by the report form under this Article of the Convention, both with regard to private pensions and health schemes and public schemes. The Committee requests the Government to indicate the total average percentage, including the average applied to individual capitalization accounts and the average applied to wages, of the commissions on the average wage of a worker.

        II.   System of pensions administered by the
              Insurance Standardization Office (ONP)

Part V (Old-age benefit), Article 29, paragraph 2. In its previous comments, the Committee noted that this provision of the Convention is applicable to all old-age benefit schemes which establish a minimum period of contribution or employment, whether 20, 25 or 30 years, and provides for entitlement to a reduced pension for workers completing a qualifying period of 15 years of contribution or employment. Under these conditions, the Committee expressed the hope that the Government would take the necessary measures in the near future to ensure that protected persons may benefit, in accordance with this provision of the Convention, from a reduced pension after 15 years of contribution, and not 20 years as envisaged in Act No. 25967.

The Government indicates that the provision of a reduced pension for insured persons who have completed 15 years of contribution is envisaged under Legislative Decree No. 19990 in the case of insured persons who on 18 December 1992 had reached 60 years of age and completed the number of contributions specified. Nevertheless, in the context of the Convention, the ONP has been making proposals with a view to quantifying the cost in terms of both its impact on the budget of the National Pension System and its actuarial cost. The report with the final results of this analysis will be submitted to the Ministry of the Economy and Finance, which will assess the proposal and its feasibility in relation to the resources available for that purpose. The Committee notes this information. It hopes that the evaluations that the Government is carrying out will result in the introduction, in accordance with this provision of the Convention, of a reduced pension applicable to the various pension schemes for insured persons who have completed 15 years of contribution. It once again requests the Government to provide additional information on the effect given in practice to Act No. 27655 and Supreme Decree No. 028-2002-EF, which envisage the granting of minimum guaranteed pensions in the context of the National Pensions System for persons who have not completed the minimum requirement of 20 years of contribution to the scheme.

Part XI (Standards to be complied with by periodical payments), Articles 65 and 66. The Committee notes with interest the measures adopted and the progress achieved in increasing the level of the pensions provided by the National Pensions System. It notes the information supplied on the progression of the average pension in relation to the general consumer price index in Lima for the period 1996-2005. Taking into account the importance of this issue, the Committee requests the Government to keep it informed of the application of measures to adjust the rates of periodical payments so as to take into account in particular changes in the cost of living in the country, in accordance with Articles 65, paragraph 10, and 66, paragraph 8.

        III.  Supervision of the private and public pension systems

In its previous comments, the Committee pointed out the need for actuarial studies and calculations to be carried out regularly in order to ensure the application of Articles 71, paragraph 3, and 72, paragraph 2, in both the private and the public pensions systems. It notes the technical report undertaken to serve as a basis for a legislative proposal relating to the maintenance of compulsory contribution rates to pension funds.

Furthermore, in its previous comments, the Committee noted that the minimum rate of return of AFPs is determined in relation to the average profitability obtained by all private pension funds and does not necessarily guarantee a real return above the rate of inflation that is capable of providing effective protection for insured persons. It therefore requested the Government to indicate whether any measures had been taken, including prudential arrangements, with a view to preserving the rights of insured persons where the return on investments is negative. In its report, the Government indicates that AFPs have to administer the resources of pension funds with the objective of achieving the maximum return for the least possible risk, with a view to providing retirement, invalidity and survivors’ benefits and funeral grants. The investments have to generate a minimum return, so as to ensure the worker a minimum return, despite any possible bad management of investments by the AFP and/or adverse events or situations on the Peruvian capital market, whether internal or external in their origins. In this respect, the Government indicates that, with the adoption of Act No. 27988 and Supreme Decree No. 182-2003-EF, changes were made in the calculation of the minimum level of profitability. Furthermore, Resolution SBS No. 275-2005 established the responsibility of AFPs to select reference profitability indicators for each of the categories of investment of capital in relation to compulsory and voluntary contribution funds. The Committee notes this information. It requests the Government to provide updated copies with its next report of studies on the financial balance of public and private institutions, with an indication of the results of the studies and calculations.

        IV.  Participation of protected persons in the administration
              of the systems

In its previous comments, the Committee noted with interest that, following the adoption of Act No. 27617 of 1 January 2002 reorganizing the public and private pensions systems, the Consolidated Reserve Fund (FCR) is now administered by a Board, the officers of which include two representatives of retired persons appointed at the proposal of the National Labour Council.

With regard to the Private Pensions System, the Committee requested the Government to provide information on the measures adopted or envisaged to give effect, in the context of the Private Pensions System to Article 72, paragraph 1, which provides that where the administration is not entrusted to an institution regulated by the public authorities or to a government department responsible to the legislature, representatives of the persons protected shall participate in the management, or be associated therewith in a consultative capacity, under prescribed conditions. In its report, the Government indicates that AFPs are the only entities authorized to administer the resources of pension funds. If dissolution or liquidation proceedings are initiated for an AFP, once they have been resolved, its administration and representation is assumed by special delegates appointed by the superintendent, and who must constitute an odd number of at least three members. The functions of the special delegates are to be established by special regulation. Once the inventories and financial accounts of the AFP and its funds have been formulated by the special delegates, they are then temporarily administered by one or more other AFPs designated by the superintendent. The Committee notes this information. Since, as it indicated in previous comments, the freedom to choose an AFP is not sufficient to comply with the requirement of the participation of the insured persons in the administration of insurance institutions, as required by this provision of the Convention, it hopes that, as it announced previously, the Government will take the necessary measures to secure greater participation by insured persons or their representatives in the administration of AFPs.

        V.   Communications from representative organizations relating
              to the application of the Convention

The Committee notes with interest the detailed information provided by the Government in reply to the communication, received by the Office on 10 April 2003, from the Association of Former Employees of the Peruvian Social Security Institute alleging non-compliance with a decision of 12 January 2001 issued by the Constitutional Court, ordering the adjustment of the pensions granted under Legislative Decree No. 20530. The Committee notes in this respect that the levelling or adjustment was undertaken taking into consideration the list of dismissals of the month of January 1997, and that these measures covered all dismissed workers covered by Legislative Decree No. 20530.

With reference to the observations made by the Association of Retired Oil Industry Workers of the metropolitan area of Lima and Callao, the Committee notes the Government’s indication that communication No. 362-2005-MTPE/OAJ was sent to the High Court of Justice of Lima, and that the outcome is awaited. The Committee requests the Government to keep it informed in this respect.

With regard to the communication submitted previously by the World Federation of Trade Unions (WFTU), relating to the allegations made by the National Central Association of Retired Workers and Pensioners of Peru (CENAJUPE) concerning the adjustment of pensions, the Committee notes that the Government undertakes to provide information in this respect in a future communication.

The Committee is also raising other matters in the context of a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2007.]