Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Further to its previous observation, the Committee requests again that in its next report, due in 2012, the Government provide detailed information on all the Articles of the Convention, as required by the report form, and that it indicate the measures taken or envisaged to ensure that the following Articles of the Convention are actually applied:

Article 8 of the Convention. Recognition of occupational diseases. The Committee notes that the legal provisions on occupational diseases are to be found in the Labour Code of 2005 (sections 349, 363, 364, etc.), Chapter VII of Social Insurance Act No. 2001-55, particularly in section 158, and in resolution No. 741 (general regulations on occupational risk insurance). The Committee observes in this connection that section 363 of the Labour Code contains a schedule of occupational diseases and that section 364 allows for a Risk Assessment Committee to add other occupational diseases to those already listed. Resolution No. 741, section 4, lists the specific agents carrying a risk of occupational disease, and section 6 lists the occupational diseases they are liable to cause, with the requirement that the “presence and action” of the agent concerned must be demonstrated. Section 9 of the resolution allows for the Disability Evaluation Committee to add other occupational diseases on condition that this Committee first establishes a causal link between the work performed and the acute or chronic ailment. It should be noted that the Labour Code says nothing of the need for proof of a causal link, either in connection with the list of occupational diseases or in relation to the decisions of the Risk Assessment Committee. Consequently, the Committee requests the Government to specify the coverage of the various provisions referred to above as regards the lists of occupational diseases, and to specify which of these lists it deems to be consistent with the provisions of the Convention. The Committee also asks the Government to provide copies of decisions by the Risk Assessment Committee and by the Incapacity Assessment Committee so that the burden of proof regime governing occupational diseases not included in the lists can be assessed. The Committee further requests the Government to take appropriate steps to amend section 5 of resolution No. 741, so as to establish a presumption of occupational origin 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.

Article 9. Coverage of chronic diseases. The Committee notes that in its report the Government construes sections 10, 12, 14 and 19 of resolution No. 741 and section 177 of the IESS Codified Statute to mean that benefits under employment injury insurance are not subject to length of employment, duration of insurance membership or payment of contributions. The Committee observes, however, that in section 14 of the above resolution, under which occupational diseases are treated on a par with employment accidents, reference is made to acute, but not to chronic, occupational diseases. Consequently, to avoid all ambiguity, the Committee asks the Government to confirm that its interpretation of the abovementioned provisions also applies to chronic diseases.

Articles 13, 14 and 18 (in conjunction with Articles 19 and 20). Amount of periodical payments. The Committee notes the information in the Government’s 2007 report to the effect that the calculation of cash benefits is based on Article 19 of the Convention. If this is so, the Committee invites the Government to explain in its next detailed report, due in 2012, how it determines the skilled manual male employee in accordance with Article 19(6), specifying the amount of his earnings, benefits and family allowances as established in Parts I–V of the report form or under Article 19 of the Convention.

Article 21. Review of the rates of cash benefits. The Committee notes with interest that the Social Security Act was amended in 2009 by the Act to Amend the Social Security Act, the Armed Forces Social Security Act and the National Police Force Social Security Act, which entered into force on 30 March 2009 (supplement to Official Gazette No. 559). Thus, section 234 of the Social Security Act has been amended by section 11 of the amending Act which establishes that cash benefits shall be increased at the beginning of each year by a percentage equal to that of the previous year’s inflation. The Committee invites the Government to provide the statistical information requested under Article 21 of the report form.