Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Workmen's Compensation (Agriculture) Convention, 1921 (No. 12) - Colombia (Ratification: 1933)

The Committee notes the Government’s report of 30 August 2012 and the various comments supplied by the Single Confederation of Workers of Colombia (CUT), the National Business Association of Colombia (ANDI), and the General Confederation of Labour (CGT), respectively of 31 August, 3 September and 5 September 2012.

Article 2(1) of the Convention. Coverage. The Committee notes with interest that following the adoption of Law No. 1562 of 11 July 2012 amending the Vocational Risk System and other provisions concerning occupational health, the personal scope of the Occupational Risks System (SGRL) was extended. The new law incorporates the previous system of vocational risks into the new SGRL and extends compulsory affiliation to several groups of employees, including independent contractors with more than one month contract, the worker-members of cooperatives and pre-cooperatives and self-employed workers in high-risk activities. Moreover, the law provides for voluntary membership of informal workers. According to the Government’s report, in March 2012, 8,126,344 dependent workers and 243,165 self-employed workers were affiliated to the SGRL, compared with 6,633,833 and 73,800, respectively, in December 2009. Forty-one per cent of the active population would therefore currently be covered by the SGRL. For its part, the CUT stresses that with only 8.72 per cent of the workers covered by the SGRL, the level enrolment in agriculture is still extremely low. In order to be able to evaluate the impact of the new legislation regarding insurance coverage against occupational risks, the Committee invites the Government to continue providing statistics on the number of SGRL affiliates, including information specifically on the construction and agricultural sectors. Additionally, the Committee requests the Government to indicate in its next report how Law No. 1562 and its implementing regulations define informal workers and the rights of casual and daily workers to benefits under the SGRL.

Penalties for non-compliance with SGRL regulations. The Committee notes with interest the strengthened sanctions established by Law No. 1562 in the event of default of the employer to observe its obligations in respect of occupational risks, including in case of non-payment of contributions or of absence of reporting of occupational accidents and illnesses.

Payment of benefits by employers to non-affiliated workers. In accordance with Law No. 1562, in the event of a work accident affecting a worker not affiliated to the SGRL by his or her employer, the latter will be directly responsible for the benefits provided by law. While the Government does not provide information on how this liability is applied in practice, the Committee understands from the comments made by the CGT and the CUT that the victims need to go to court. The Committee has always considered that the failure of employers to fulfil their obligation to affiliate workers, legal action by victims of accidents should not constitute the standard mean of appeal, the State being responsible for taking all necessary measures to ensure and facilitate the provision of employment injury benefits, leaving the possibility to hold the employer liable for reimbursing the expenses incurred by the State. With a view to being able to fully assess the practicalities of this issue, the Committee requests the Government to indicate whether there exist interlocutory proceedings, either judicial or in the framework of labour inspection services, for victims of accidents or occupational diseases not affiliated by their employer to SGRL. Please also indicate the average length of the proceeding for obtaining payment of compensation in these circumstances.

Payment of benefits in the event of disputes about the commonality or occupational accident or disease. The CGT and CUT draw attention to the high number of cases where long delays would occur in health care or the payment of benefits due to disputes between health care providers and occupational risk insurers (ARL) on the origin of the accident or illness. The Government states that the Law No. 1562 guarantees the payment of cash benefits to workers even in cases where the source of injury or illness is in dispute. Under section 5(3) of the Law, when the cause of the accident or disease is questioned, the ARL pays the worker “the percentage provided by the contributory social security health system”. The Committee observes that this percentage is lower than that corresponding to occupational accident or illness. The Committee requests the Government to report on the practical effects of the adoption of the new law on the frequency and length of proceedings concerning disputes on the occupational or general nature of accidents or diseases.

Article 5. Compensation in the form of lump sum. Law No. 1562 does not modify the rules applicable to workers who suffer a permanent loss of working capacity between 5 and 50 per cent: payment of compensation in the form of lump sum and maintenance of their employment relationship for the remaining working capacity. The Committee invites the Government to explain in further detail how employment protection is guaranteed by law. As for cases of permanent disability between 25 and 50 per cent where the risk of a loss of income is increased, the Commission considers it necessary, even if the employment relationship is preserved, to establish additional protection in the form of monitoring by the competent authority of the proper use of lump sum compensation, as provided in Article 5 of Convention. In this regard, the Committee again expresses the hope that the Government will introduce appropriate procedures to strengthen the protection of victims of occupational accidents and diseases against the misuse of lump sum compensations.

Article 11. Protection against insolvency. The Government indicates in its report that the Guarantee Fund for Financial Institutions (FOGAFIN), would be responsible both for social assistance benefits and cash benefits in the event of insolvency of an ARL while the CUT stresses in its comments that, in accordance with section 83 of Decree Law No. 1295 of 1994, the Fund only guarantees the payment of pensions provided by the ARL. The Committee requests the Government to indicate in its next report the normative texts extending the FOGAFIN guaranty to social assistance benefits provided under the SGRL scheme.

The Committee notes that the practical information requested in respect of cases of insolvency of employers responsible for compensating workers who were not affiliated to the SGRL has not been supplied. The Committee understands that the cautionary measures contained in the Labour and Social Security Procedural Code are only aimed at preventing the risk of insolvency of the employer. Recalling that victims of industrial accidents should in any case not bear the consequences of the insolvency of the employer, the Committee requests the Government to explain in its next report how the State guarantees access to benefits to the worker who, while not affiliated to SGRL, fell victim of an industrial accident.

[The Government is asked to reply in detail to the present comments in 2015.]