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

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comments: Direct requests C.12, C.17, C.18 and C.19; direct requests C.24 and C.25

The Committee notes the observations provided by the Single Confederation of Workers of Colombia (CUT), the General Confederation of Labour (CGT) and the Confederation of Workers of Colombia (CTC) on the application of Conventions Nos 12, 17, 18 and 19, dated 31 August 2022, which were communicated with the Government’s report. The Committee requests the Government to provide its comments in this regard.

The Committee also notes the observations of the International Organisation of Employers (IOE) and the National Employers Association of Colombia (ANDI), dated 31 August 2022, communicated with the Government’s report.

In order to provide a comprehensive view of the issues relating to the application of ratified social security Conventions, the Committee considers it appropriate to examine Conventions Nos 12, 17, 18, 19, 24 and 25 together in a single comment.

Article 1, Conventions Nos 12, 17, 18, 24 and 25. Representation made under article 24 of the ILO Constitution. Application of the Conventions in practice. Progressive extension of the numbers of persons covered. The Committee notes that, at its 342nd Session (June 2021), the Governing Body found receivable the representation made by the CUT, CGT and CTC under article 24 of the ILO Constitution alleging non-compliance by the Government of Colombia with the Maternity Protection Convention, 1919 (No. 3), the Workmen’s Compensation (Agriculture) Convention, 1921 (No. 12), the Workmen’s Compensation (Accidents) Convention, 1925 (No. 17), the Workmen’s Compensation (Occupational Diseases) Convention, 1925 (No. 18), the Sickness Insurance (Industry) Convention, 1927 (No. 24), the Sickness Insurance (Agriculture) Convention, 1927 (No. 25), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The Committee observes that the allegations contained in the representation refer to the coverage of protected persons and the guarantee of social security benefits in relation to Conventions Nos 3, 12, 17, 18, 24 and 25. In accordance with its usual practice, the Committee has decided to suspend its examination of matters related to the subjects referred to until the Governing Body adopts its report on the representation.

Article 5 of Convention No. 17. Compensation in the form of a lump sum. The Committee notes the information provided by the Government on guarantees of stability of employment and the obligation of employers to provide rehabilitation measures. The Committee also notes that the legislation provides for the payment of a higher-level compensation benefit in the event of permanent partial incapacity. In this regard, the Committee observes that the Government has not indicated the measures adopted with a view to guaranteeing the proper utilization of the lump sum received in such circumstances. The Committee wishes to recall that Article 5 of the Convention provides that the compensation payable in the event of permanent incapacity or death may as an exception be wholly or partially paid in a lump sum, if the competent authority is satisfied that it will be properly utilized. In this context, the Committee once again requests the Government to indicate the measures adopted so that the competent authorities ensure the proper utilization of the lump sum benefit, in accordance with Article 5 of the Convention.

Article 11 of Convention No. 17.Guarantees of the payment of benefits to workers in the event of the insolvency of the employer or the insurer, and in cases of the failure to register workers. The Committee notes the information provided by the Government in its report that occupational risk administrators are required to take out reinsurance coverage, and that the Guarantee Fund for Financial Institutions (FOGAFIN) is responsible for the payment of pensions in the event of the insolvency of the pension administrator. The Committee further notes that, in the event of the insolvency of enterprises, Act No. 1116 of 2006 grants preference to labour credits, as a result of which workers in enterprises under compulsory liquidation are assisted by the law, on an equal footing, to benefit from the distribution of the active assets during liquidation. With reference to the failure to register workers, the Committee notes that, in the case of workers who are not registered under the General Labour Risks Scheme (SGRL), the State does not guarantee the payment of employment injury benefits, and workers have to have recourse to the ordinary labour courts to make their claims against the responsible employer. In this regard, the Committee notes the observations of the CUT, CGT and CTC indicating that court action takes years to be completed and is costly. The Committee recalls the Government that Article 11 of Convention No. 17 provides that Member States shall make such provision as is deemed most suitable for ensuring in all circumstances the payment of compensation to workers who suffer injury and to their dependants. In this context, the Committee requests the Government to indicate the manner in which the payment of compensation is guaranteed in the case of workers who are not registered with the SGRL, over and above the possibility for them to take action through the ordinary courts. The Committee also requests the Government to provide information on the court rulings handed down recognizing the payment of such compensation.

Article 2 of Convention No. 18. Recognition of occupational diseases. The Committee notes the indication that the regulations on recognition on first application through administrative decisions have been under revision since 4 March 2022 by the Ministry of Finance and Public Credit, which is seeking to reduce to 140 days the procedure for the determination and recognition of loss of capacity for work in all cases. The Committee further notes the Government’s indication that work is being undertaken on a draft text to add Part 5 of Book 3 to Decree No. 780 of 2016, regulating the health and social protection sector, which establishes the procedure for determining the origin of the disease or injury, the degree of invalidity and the date of the recognition and review of the invalidity. In light of the above, the Committee requests the Government to provide information on: (i) progress in the adoption of the regulations referred to above, with a view to the simplification of the process of the recognition of occupational diseases upon first application, and the reduction in the timeframe for their recognition; and (ii) the number of occupational diseases that have been reported and recognized, and the average period of time between their recording and their recognition.

Application in practice of Convention No. 19. The Committee notes the information provided by the Government on the adoption of Decree No. 117 of 2020 establishing a procedure to regularize the status of migrants with a view to reducing informal work and allowing the access to work with insurance coverage of Venezuelan citizens in an irregular migration situation. The Committee also notes Decision No. 1178 of 2021 and Decision No. 572 of 2022 of the Ministry of Health and Social Protection, adopting the temporary protection permit (PPT) as a valid identity document for Venezuelan migrants, with which they can register with the General Social Security System and the General Occupational Risks Scheme, through which they benefit from relevant protection and benefits for employment injuries. The Committee notes the observations of the CUT, CGT and CTC which indicate a lack of the necessary labour inspection to ensure compliance by employers with their obligations under labour law, as workers of Venezuelan nationality are subject to unfair treatment as a result of their vulnerable situation. In this regard, the Committee requests the Government to indicate whether the labour inspection services have reported irregularities in the payment of employment injury compensation to migrant workers.

Article 4(1) of Conventions Nos 24 and 25. Access to medical care. The Committee notes the information provided by the Government on the supervisory measures adopted by the National Health Supervisory Office in relation to health promotion bodies (EPS) and health service providers (IPS) to ensure that they comply with their obligations. The Committee also notes the statistical data, which shows that the number of complaints relating to access to medical care has diminished.

Article 4(2) of Conventions Nos 24 and 25. Sharing in the cost of medical care. The Committee notes the information provided by the Government that the cost share by beneficiaries in Colombia is 15.1 per cent, and that the share of the cost of health services paid by households represents 1.7 per cent of the total cost. The Committee recalls that, while Article 4(2) of the Convention provides that the insured person may be required to pay such part of the cost of medical care as may be prescribed by national laws or regulations, the principle of the provision of care free-of-charge is also established. In this context, the Committee requests the Government to provide information on the public financial assistance measures or policies that exist with a view to preventing hardship for insured persons, especially in cases which may require multiple consultations and complex or long-term medical treatment.

Article 6(1) of Conventions Nos 24 and 25. Non-profit and profit-making health insurance institutions. The Committee notes the information provided on the National Health Supervisory Office in relation to the adoption of measures with a view to the removal of the approval of institutions that do not guarantee the provision of health services to their members, including the partial revocation of the authorization to operate and precautionary measures. However, the Committee notes that the Government has not provided information on the controls carried out of user services by national, district and municipal social security councils in the field of health care. In this context, the Committee once again requests the Government to provide information on the supervisory activities of national, district and municipal social security health councils to monitor user services.

Article 6(2) of Conventions Nos 24 and 25. Participation of insured persons in management. The Committee notes the information provided by the Government on user alliances and associations, the role of which is to represent users in relation to health promotion bodies (EPS) and health service providers (IPS). The Committee further notes External Circular No. 008 of 2018 of the National Health Supervisory Office, which indicates that Benefit Plan Administrators (EAPB) and health service providers (IPS) shall take the necessary action to promote and strengthen the exercise of social participation in accordance with the laws and regulations in force.

Article 9 of Convention No. 24 and Article 8 of Convention No. 25. Right of appeal. The Committee notes the Government’s indication that, within the context of the Social Security System, there exist bodies, time limits and procedures regulated by Decree No. 1072 of 26 May 2015 and Legislative Decree No. 19 of 2012 on the right of appeal in relation to the recognition and granting of benefits for injury and diseases. The Committee notes the procedures described in relation to the recognition authority, the Regional Injury Recognition Board and the National Injury Recognition Board. It also notes the indication that, in addition to the administrative bodies referred to above, persons who are affected may take action through judicial bodies.

Application of Convention No. 24 in practice. Payment of health insurance. The Committee notes the information on the proceedings undertaken by the Supervisory Body delegated by the jurisdictional and conciliation authorities for the resolution of disputes that arose between users and providers in the health care system during the period between August 2018 and July 2022, which does not refer specifically to any progress in the action taken in relation to the employees of the International Aviation Company. The Committee recalls that the Government indicated in previous reports that the Ministry of Labour was undertaking an investigation and that a round table had been established under the leadership of the Deputy Minister for Industrial Relations and Inspection with a view to reaching an agreement. The Committee once again requests the Government to provide specific information on any progress achieved and the possibility of concluding this case.

Conclusions and recommendation of the Standards Review Mechanism. The Committee recalls the recommendations of the Tripartite Working Group of the Standards Review Mechanism, on the basis of which the Governing Body decided that Member States for which Conventions Nos 17, 18, 24 and 25 are in force should be encouraged to ratify the Employment Injury Benefits Convention [Schedule I amended in 1980], 1964 (No. 121), the Medical Care and Sickness Benefits Convention, 1969 (No. 130), and the Social Security (Minimum Standards) Convention, 1952 (No. 102). The Committee encourages the Government to give effect to the decision adopted by the Government Body at its 328th Session (October–November 2016) and to consider the ratification of the most up-to-date social security instruments.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on Workmen’s Compensation, the Committee considers it appropriate to examine Conventions Nos 12 (agriculture), 17 (accidents), 18 (occupational diseases) and 19 (equality of treatment) together.

The Committee notes the observations of the General Confederation of Labour (CGT) on the application of Conventions Nos 12 and 19, received in 2017, and the observations of the Confederation of Workers of Colombia (CTC) and the Single Confederation of Workers of Colombia (CUT), on the application of Conventions Nos 17 and 19, received in 2017.

Article 1 of Convention No. 12. Application of the Convention in practice. Progressive extension of coverage. In its previous comment, the Committee requested the Government to indicate the specific measures adopted to strengthen and extend the coverage of the General Occupational Risks System (SGRL) to agricultural workers. The Committee notes the Government’s reply in its report, in which it indicates that the strengthening and extension of SGRL coverage in the agricultural sector is continuing. The Committee notes that the average number of people insured by the SGRL is approximately 10.1 million, and that in May 2017 there were 372,309 insured persons in the agricultural, livestock, hunting and forestry sector. The Committee also notes the Government’s indication that the General Agreement for the Termination of the Conflict and the Construction of a Stable and Lasting Peace of 2016 laid the foundations for the Comprehensive Rural Reform and action to reduce poverty and inequality to secure the welfare of the rural population. The Committee also notes the allegations of the CTC and the CUT that the agricultural sector has the highest accident rate, and that crops such as sugar cane and palm oil have higher accident rates than the sector as a whole. The Committee also notes that the CGT, while emphasizing the importance of the signing of the Pact for Employment Formalization in the Agricultural and Livestock Sector in 2014, indicates that there is a high level of informality in the sector. The Committee trusts that the implementation of the General Agreement of 2016 and the Pact of 2014 will enable the continued pursuit of the extension of effective occupational accident coverage to agricultural workers and requests the Government to indicate any developments in this regard. The Committee also requests the Government to indicate any other measures envisaged or adopted to extend in practice the laws and regulations on occupational accident compensation to all agricultural wage earners and to give full effect to this Article of the Convention. Lastly, the Committee requests the Government to provide updated statistical data on the number of agricultural workers registered with the SGRL.

Article 1, in conjunction with Article 11 of Convention No. 17. Obligation of the State to guarantee the payment of benefits to workers whose employers have not taken out occupational accident insurance and payment of the allowance in the event of the insolvency of the insurer or employer. In its previous comment, the Committee requested the Government to clarify whether the victim of an occupational accident who is not registered with the SGRL would be entitled to reimbursement of his/her medical expenses and would receive compensation from occupational risk insurers (ARLs). The Committee also requested the Government to indicate the legal provisions that guarantee to victims of an occupational accident or disease the provision of the necessary medical care in the event of the insolvency of the ARL. Lastly, with regard to the insolvency of the employer, the Committee requested the Government to indicate the measures adopted or envisaged to guarantee the rights established by the Convention in the case of the insolvency of employers who are not insured through the SGRL. With reference to the first point, the Committee notes the Government’s indication that the occupational risk insurer to which an occupational accident claim is submitted is wholly liable for the benefits arising out of the accident and its sequelae, irrespective of whether or not the worker is registered with the insurer. Regarding the case of the insolvency of the ARL, the Government indicates that Decree No. 1295 of 1994 provides that the Financial Institutions Guarantee Fund (FOGAFIN) shall guarantee the payment of pensions in the event of loss of assets or the suspension of payments by the occupational risk insurer. Regarding medical care, it is provided by the General Comprehensive Safety and Health System in the case of persons who are not protected for the various reasons described. The Committee also notes the allegations by the CTC and CUT of the lack of protection against the insolvency of the insurer in the event of a loss of capacity for work of less than 50 per cent and in the case of workers whose employers are not insured through the SGRL. In this regard, the Committee notes the Government’s indication that the regulations in force provide for mechanisms for the constitution of reserve funds by ARLs. Concerning workers whose employers are not covered by the SGRL, in the event of the insolvency of the employer, the Committee notes the Government’s indication that the employer is responsible for registering workers and paying contributions to protect against contingencies in the event of occupational accidents or diseases. The State monitors social security registration, and to this end it has adopted Decision No. 1111 of 2017 on minimum standards of occupational safety and health management (now repealed by the new Decision No. 0312 of 2019). The Committee requests the Government to indicate the manner in which it is ensured that compensation is paid to victims of occupational accidents in the case of a loss of capacity for work of less than 50 per cent in the event of the insolvency of the ARL, and of the insolvency of employers not insured by the SGRL.

Article 5 of Convention No. 17. Compensation in the form of a lump sum. In its previous comments, the Committee expressed the hope that the Government would introduce appropriate procedures to strengthen the protection of victims of occupational accidents and diseases against the misuse of lump sum compensation, as provided for in Article 5 of the Convention. The Committee notes the observations of the CTC and the CUT alleging once again that, in the event of an occupational accident or disease resulting in a loss of capacity for work of between 20 and 50 per cent, workers are no longer granted pensions, but receive compensation in the form of a lump sum. The Committee notes the confirmation by the Government that the law establishes the provision of periodical payments only in the case of invalidity and survivors’ pensions for general or occupational injury granted for an incapacity for work of more than 50 per cent, and that the Office’s advice would be welcome to examine the possibility of providing compensation for permanent partial incapacity in the form of periodical payments, without prejudice to the right currently held by workers to the indexed lump sum. The Committee requests the Government to indicate the manner in which the competent authorities ensure the proper utilization of indexed lump sums. The Committee recalls that the Government may avail itself of the technical assistance of the Office to strengthen the measures to ensure the proper utilization of the indexed lump sum, or to examine the possibility of once again establishing periodical payments for workers victims of occupational accidents with a permanent partial incapacity exceeding a certain level. The Committee requests the Government to indicate any developments in this regard.

Article 2 of Convention No. 18. Recognition of occupational diseases. In its previous comments, the Committee requested the Government to respond to the observations of the trade union confederations and to provide information on the manner in which a disease is treated during the first 540 days that precede its classification as an occupational disease, and to indicate the average time for its recognition as such. The Committee also requested the Government to carry out a detailed analysis of the manner in which the national list of occupational diseases complies with the Schedule annexed to the Convention. Regarding the first point, the Committee notes the Government’s indication that Decree No. 1072 of 2015 provides that, where 30 days have elapsed from the end of the comprehensive rehabilitation process and the disease has still not been recognized on first application, in no event may the recognition exceed 540 days following the date of the accident or the diagnosis of the disease, in which case the worker shall have the right to appeal directly to the invalidity recognition board. The Government also indicates that during this period the cash benefits for temporary incapacity and permanent partial incapacity are set by Act No. 776 of 2002. Regarding the second point, the Committee notes the Government’s indication that Decree No. 1477 of 2014 is based on the legal presumption of the occupational nature of the diseases listed in its Schedule in accordance with section 202 of the Substantive Labour Code, and that the list of activities and industries contained in the Schedule of occupational diseases is not exhaustive. Finally, the Committee notes the Government’s indication regarding a draft decree to regulate the process for the recognition of occupational diseases on first application that must be followed by health promotion bodies, ARLs, insurance companies and pension funds. The Committee requests the Government to provide information on the progress achieved in strengthening the legal framework for the recognition of occupational diseases on first application by health promotion agencies, ARLs and other relevant bodies, and on any measures that simplify the recognition of the occupational origin of the occupational diseases listed in the Convention, thereby giving it full effect.

Article 1(1) of Convention No. 19, and the application of the Convention in practice. The Committee notes the Government’s indication that any foreign national who enters the labour market with a contract is entitled to the social benefits provided by the SGRL. The Committee notes the allegations of the CTC and the CUT that the Government has not provided data on the application of the Convention in practice, and their indication that, although under the law there is no difference of treatment of foreign workers for the purpose of the compensation of occupational accidents, in practice many unskilled migrant workers are recruited informally, so that they are not guaranteed registration with the SGRL. The CGT indicates that among foreign workers, irregular workers without a work permit are exposed to the absence of protection, and refers in particular to the situation of Venezuelan migrant workers in Colombia. The Committee requests the Government to provide information, if existing statistics so allow, on the approximate number of foreign workers in the country and on their occupation and nationality. The Committee also requests the Government to provide information on the number and nature of occupational accidents recorded among foreign workers, and on the compensation for occupational accidents provided to workers who are nationals of other member States that have ratified the Convention, and to their dependants.

Lastly, the Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group (SRM tripartite working group), the Governing Body has decided that member States for which Conventions Nos 17 and 18 are in force should be encouraged to ratify the more recent Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), and accept Part VI (see GB.328/LILS/2/1). The Committee therefore encourages the Government to follow up the Governing Body’s decision at its 328th Session (October–November 2016) approving the recommendations of the SRM tripartite working group and to consider ratifying Convention No. 121 or Convention No. 102 (accepting Part VI), as the most up-to-date instruments in this area.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the Government’s reply to its previous consolidated comment on Conventions Nos 12, 17 and 18. It also notes the observations of the Union of Workers of Colombia (UTC) on the application of Conventions Nos 17 and 18, received on 27 October 2014, and those made by the Single Confederation of Workers of Colombia (CUT), the General Confederation of Labour (CGT), and the Confederation of Workers of Colombia (CTC), on Conventions Nos 12, 17 and 18, received on 15 September 2015, as well as the observations made by the International Organisation of Employers (IOE) and the National Association of Employers of Colombia (ANDI) on the application of Convention No. 17.

Convention No. 12 (Article 1) and Convention No. 17 (Article 2(1)). Coverage. The Committee notes the steady increase in the number of persons covered by the Occupational Risks System (SGRL) from 6.5 million in 2009 to just over 8 million in 2012, and to approximately 9 million in 2014.

It also notes the adoption of Decree No. 2616 of 2013, amended by Decree No. 1072 of 2015, which regulates the affiliation to the occupational risks system of persons engaged in employment relationships of less than one month, that is, daily wage earners and part-time workers, with a view to progressively formalizing these workers and providing them with social protection coverage. The Government further indicates that it is currently preparing the regulations on the voluntary membership of independent and informal workers whose earnings are at least equal to the statutory minimum wage.

The CUT observes, in this respect, that with only about 8 per cent of agricultural workers covered by the SGRL, the level of enrolment in agriculture remains extremely low, yet this sector has one of the highest rates of occupational accidents: agricultural workers represent only 3.8 per cent of all SGRL affiliated persons but account for 9 per cent of all industrial accidents. Certain agricultural sectors, such as banana production, have, following their formalization, started effectively reporting industrial accidents, which has resulted in high accident rates in proportion to the number of persons employed therein. The CUT therefore considers that the following are inadequate for the agricultural sector: the SGRL coverage; the existing risk assessment and preventive measures; occupational health and safety training; and measures aimed at monitoring compliance with minimum age requirements. The CUT calls for the introduction of a differentiated policy guaranteeing access to social security to a considerable number of workers in rural areas. The Committee asks the Government to indicate the specific measures taken with a view to strengthening and extending SGRL coverage to agricultural workers.

Convention No. 17 (Article 5). Payment of benefits by employers to workers whose employers have not taken out SGRL insurance. 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. The CGT and the CUT previously indicated that, in cases in which employers did not affiliate their workers to the SGRL and refused to assume their direct liability, the only possibility left for the workers was to present their case before the courts. In its reply, the Government states that there are no interlocutory proceedings aimed at ensuring that victims of industrial accidents or occupational diseases not affiliated by their employer to the SGRL are nonetheless duly compensated by the social insurance institutions, which would address the defaulting employer for the reimbursement of incurred expenses. The Government also indicates that, in such a case, in accordance with section 2.2.5.1.25 of Decree No. 1072 of 2015, the worker is entitled to appeal to the regional council for recognition of invalidity, which firstly determines the institution that should provide compensation, and, secondly, claims reimbursement from the respective occupational risk insurer (ARL) through judicial action. The Committee, however, is unable to ascertain from these provisions mentioned by the Government, whether the victim of an employment injury who is not affiliated to the SGRL would nevertheless be entitled to have his or her medical expenses fully defrayed and receive compensation from the ARL which would then claim reimbursement from the employer at fault. The Committee asks the Government to clarify this point in its next report and recalls that in cases of failure of employers to fulfil their obligation to affiliate workers, the State bears the general responsibility for the provision of the occupational accident benefits, since the possibility of taking legal action for victims of industrial accidents does not give effect to Article 5 of Convention No. 17.

Convention No. 17 (Article 5). Compensation in the form of a lump sum. The Committee notes the information provided by the Government with respect to the conditions under which lump sums are paid to workers with recognized degrees of disability between 5 per cent and 50 per cent, in combination with legal guarantees for the maintenance of their employment relationship for the remaining working capacity. However, the Government has not responded to the concern expressed by the Committee with respect to cases of permanent disability between 25 per cent and 50 per cent where the risk of a loss of the lump sum compensation is increased even if the employment relationship is preserved. In this regard, the Committee once 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, as provided for in Article 5 of Convention.

Convention No. 17 (Article 11). Protection against insolvency of the insurer. The Committee notes the Government’s confirmation that the Guarantee Fund for Financial Institutions (FOGAFIN) is only responsible for payment of pensions in the event of insolvency of an ARL, in conformity with section 83 of Decree Law No. 1295 of 1994. Nevertheless, the Government indicates that the provision of medical benefits in cases of employment injury is guaranteed by the State under article 48 of the national constitution but that in practice the probability of having recourse to this guarantee is very low. The Committee requests the Government to specify the legal provisions, other than constitutional, which guarantee victims of an employment injury the medical care due under Articles 9 and 10 of Convention No. 17 in case of insolvency of the ARL concerned.

Protection against insolvency of the employer. The Committee notes the Government’s indication that the State does not guarantee payment of employment injury pensions to workers whose employers are not affiliated to the SGRL and that, in order for the workers concerned to be able to exercise their rights, they must address the judicial authorities, including through the procedure of tutela. The Committee requests the Government to indicate the measures taken or envisaged to guarantee the rights established by the Conventions under examination, even in the case of the insolvency of employers who are not insured with the SGRL.

Convention No. 18. Recognition of occupational diseases. In their observations, the CGT and the CUT once again state that the procedures for the recognition of occupational diseases are slow and too cumbersome to implement in practice. Moreover, insurers prefer to compensate diseases as common diseases in so far as the cash benefits due are inferior (66 per cent) to those in the case of occupational diseases (100 per cent). In cases where the worker persists and the occupational origin of the disease is qualified, which can take up to five or six years, the worker’s entitlement to benefits could lapse. The CGT also reports problems of corruption or misuse of the social security resources, which have the effect of undermining the confidence of users in the entire system. The Government refers in its report to the adoption, in 2012, of Decree No. 1562 aimed at providing greater clarity in this respect, in particular by stating that the qualification of the occupational origin of the disease must be made, at the latest, 540 days after the initial diagnosis. In addition, Decree No. 1507, adopted in 2014, aims at regulating the point at which the pathological condition can be considered stable. Finally, the Government refers to the adoption of Decree No. 1477 of 2014, establishing the list of occupational diseases which provides that a disease not expressly on the list can henceforth be recognized as occupational, subject to proving the causal link with occupational risk factors and which adds four new occupational diseases to the pre-existing list. The listed diseases are considered direct occupational diseases and do not require screening by an ARL as regards payment of benefits and medical care. The Committee requests the Government to respond to the observations of the CGT and the CUT and to provide information on the manner in which a disease is treated during the first 540 days which may precede its qualification as an occupational disease (as regards the level of cash benefits and the type of medical care). Please also indicate the average time in practice for the recognition of an occupational disease and whether any measures are envisaged to simplify the administrative procedures for the recognition of the occupational origin of the disease in order to prevent the payment of compensation being rendered impossible due to legal limitation periods. Finally, the Committee notes that the list annexed to Decree No. 1477, while it contains all the diseases and toxic substances listed in the table annexed to the Convention, does not expressly state all corresponding industries listed therein (for example, loading, unloading or transport of goods not on the list of the occupations listed in the Decree). The Government is requested to ask the competent departments of the State to carry out and provide in its next report a detailed analysis of how the national list of occupational diseases complies with the list annexed to the Convention.

[The Government is asked to reply in detail to the present comments in 2016.]

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

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.]

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Part V of the report form. Application of the Convention in practice. Gradual extension of the number of persons covered. In its previous comments, the Committee invited the Government to keep it informed of measures taken to continue the geographical extension of coverage of the workers’ compensation system, in order to enable all agricultural wage earners covered by the Convention to be entitled to the benefits provided by the general system for employment injury compensation (Sistema General de Riesgos Profesionales (SGRP)). It therefore asked the Government to continue supplying information on the number of wage earners affiliated to the SGRP and, in particular, statistics on the number of insured wage earners in the agricultural sector in relation to the total number of wage earners working in this sector.

In its last report, the Government states that between 2005 and 2006 the total number of workers affiliated to the SGRP increased from 5,104,050 in 2005 to 5,796,531 in 2007, i.e. a total of 692,481 newly affiliated workers. However, the Government states that it does not have disaggregated statistics concerning the proportion of workers employed in the agricultural sector in this total. The Committee can therefore only emphasize that, in the absence of detailed statistics on this subject, it is unable to evaluate whether progress has been made in the extension of coverage of agricultural wage earners by the SGRP. In this respect, it notes that even though the total number of persons affiliated to the SGRP (agricultural and non-agricultural workers) actually increased between 2005 and 2006, it remains slightly below the number communicated by the Government in its previous report, and this does not appear to demonstrate real progress in this area. The Committee therefore trusts that the Government will supply information in its next report on tangible results achieved in the gradual extension to all agricultural wage earners of the protection guaranteed to them by the Convention, and that it will take all necessary steps to be able to supply statistical information on the number of wage earners affiliated to the SGRP in relation to the total number of wage earners, and also on the number of insured wage earners in the agricultural sector in relation to the total number of wage earners working in this sector.

2. The Committee notes the Government’s statement that specific measures have been taken to promote health protection and prevent occupational accidents involving women working on an informal basis in the rural sector. These measures have included training, consciousness-raising and action, and have sought to improve the conditions of health and the quality of life of this section of the population. Accordingly, 2,000 women from 20 departments benefited from this programme between 2005 and 2006 and the objective is to cover 12 new departments and some 1,200 women in 2007. The Committee notes this information and would be grateful if the Government would keep it informed in subsequent reports of the progress made with regard to the prevention of occupational accidents and the improvement of the conditions of health of informal workers in the agricultural sector.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

In reply to the Committee’s previous comments concerning the extent of the coverage of the general system for employment injury compensation (Sistema General de riesgos Profesionales (SGRP)) to wage earners in the agricultural sector, the Government states that enterprises in the agricultural industry are affiliated to the SGRP and that the implementation of this system is gradual in both the urban and rural sectors. The Government hopes that its next report on the application of the Convention will show positive developments and even significant progress in the application of the Convention.

The Committee notes this information and the statistics provided by the Government. It notes with interest the increase in the number of workers affiliated to the SGRP (6,185,191 insured persons in 1998, compared with 4,320,038 in 1996). It nevertheless hopes that the Government will indicate in its next report the measures taken to enable all the agricultural wage earners covered by the Convention to be entitled to the benefits provided by the SGRP in the event of employment injury. In this respect, it requests the Government to continue providing information on the number of wage earners affiliated to the SGRP and, in particular, statistics on the number of insured wage earners in the agricultural sector in relation to the total number of wage earners working in this sector.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

In previous comments, the Committee requested further information and statistics on the effective extension of the social security scheme in respect of employment injury to agricultural wage-earners coming under the scope of the Convention. In reply, the Government states that many laws exist to ensure protection of workers; that coverage of the entire working population is 20 per cent; and that 8 per cent of the covered workers are in the primary sector which would include agricultural workers.

The Committee notes this information. It points out that it is difficult to assess the progress made in extending the application of the Social Security Act No. 100 of 1993 to the agricultural sector, due to the lack of more precise statistics on the number of insured employees in agriculture in relation to the total number of agricultural employees, as well as the lack of statistics from previous years which would provide an indication of progress. It would appreciate receiving more detailed data in the Government's next report in order to assess the compliance of the employment injury scheme to the agricultural sector with the provisions of the Convention.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

With reference to its previous comments, the Committee notes the adoption of the new Social Security Act, No. 100 of 1993, which sets up a comprehensive social security system guaranteeing its gradual extension to the whole population including the agricultural sector (section 6 of Act). With particular reference to the employment injury branch, the Committee also notes that Decree No. 1295 of 1994, issued under section 139 of the above-mentioned Act, applies by virtue of section 3 to all enterprises engaged in activities on the national territory and to all workers in both public and private sectors, subject to the exceptions provided for in section 279 of Act No. 100 of 1993. The Committee would be grateful if in its next report the Government would provide detailed information and statistics on the effective extension of the social security scheme in respect of employment injury so as to cover the whole national territory and all agricultural wage-earners coming under the scope of the Convention.

[The Government is asked to report in detail in 1996.]

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

In reply to the Committee's previous comments, the Government indicates that the draft social security reform, prepared in accordance with article 48 of the new Constitution, is to be submitted to Congress at its present session. With regard to the agriculture and livestock sector, the Government states that it undertook on Farmers' Day, 19 July 1992, to extend the coverage of the social security scheme to the whole of the national territory.

The Committee notes this information. It also notes from the statistics supplied by the Government that the number of occupational accidents reported in the agriculture and livestock sector was still relatively high in 1990. In these circumstances, and in view of the fact that 60 to 96 per cent of workers in this sector are still not covered by social security, the Committee again expresses the hope that, as part of the social security reform, the Government will be able to take the necessary measures to extend progressively to the whole of the national territory the occupational accident branch of the social security scheme, so as to cover all agricultural workers covered by the Convention. Pending the achievement of this objective, the Committee can but insist once again that the Government take the necessary measures to amend the Labour Code, which sets out lower levels of compensation than those prescribed in the compulsory social security scheme, as regards the duration of both medical assistance and cash benefits.

The Committee hopes that the Government's next report will contain information on the progress made in this respect. It also asks the Government to continue to provide information, including statistics, on the extension of the social security scheme to the rural sector in respect of workmen's compensation.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

For a number of years, the Committee has been drawing the Government's attention to the need to amend the Labour Code in order to ensure that, pending the extension of the coverage provided by the social security scheme to the whole of the national territory, all agricultural wage-earners, without exception, benefit from compensation for industrial accidents that is equivalent to the levels established by the social security scheme. In this context, the Committee notes that Act No. 50 of 1990 to reform the Labour Code has not changed the existing situation.

In its report, the Government refers in particular to section 48 of the new Constitution, which encompasses the right to social security, and to interim section No. 57, which provides that a tripartite committee shall be set up in order to make proposals on reforming the social security system within 180 days following the coming into force of the Constitution. According to the information supplied by the Government, it was envisaged that the above tripartite committee, which is chaired by the Minister of Labour and Social Security, should submit a draft reform of the social security system to Congress in December 1991.

The Committee notes this information with interest. It also notes the National Occupational Health Plan 1990-95, which was supplied by the Government with its report. This document shows that in the agricultural and stock-raising sectors, between 60 and 96 per cent of workers are not covered by social security. It therefore hopes that, within the context of the reform of the social security system, the Government will be able to take the necessary measures to progressively extend to the whole of the national territory the branch of the social security scheme concerning the compensation of industrial accidents, so as to cover all employees in the agricultural sector who come within the scope of the Convention. While awaiting the achievement of this objective, the Committee cannot but urge the Government once again to take the necessary measures to amend the Labour Code to the extent that it sets out lower levels of compensation as regards the duration of both medical care and cash benefits, than those fixed by the compulsory social security scheme. It hopes that the Government's next report will contain information on the progress achieved in this respect. The Committee also requests the Government to continue supplying information, including statistical data, on the extension of the industrial accident branch of the social security scheme to the rural sector.

Finally, the Committee once again requests the Government to supply a copy of the social security regulations provided for in section 132 of Decree No. 1650 of 1977.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

For some years the Committee has been drawing the Government's attention to the need to amend the Labour Code in order to ensure that, while the coverage provided by the social security scheme is being extended to the whole of the national territory, all agricultural workers, without exception, benefit from compensation for industrial accidents that is equivalent to the levels established by the social security scheme. In its report the Government once again refers to the new basic provisions which lay down the principle of compulsory coverage under the social security scheme, both for the urban and rural populations, and confirms the application of the Labour Code in the meantime to workers residing in areas that are not yet covered by the social security scheme. However, it indicates that each year the Institute of Social Security is extending its protection and is arriving in the most distant regions of the country, despite the geographical obstacles and the problems related to infrastructure, in addition to the problems related to violence that Colombia is experiencing at the present time. The Government stresses that it also hopes to cover the whole of the territory and thereby provide social security for all the inhabitants of the country, as set out in the legislation.

The Committee also notes that, as regards the amendment of the Labour Code, the Government indicates that, as part of its policy to unify social security schemes, in 1987 it issued Decree No. 0776 to amend the schedule for the assessment of incapacity resulting from industrial accidents, which is contained in section 209. This Decree increases the number of categories of injuries that are described from 131 to 388 while broadening the percentage bands and thereby permitting the provision of more adequate compensation through the inclusion in assessment of variables such as age, sex, occupation and other conditions.

The Committee notes this information and the detailed statistical data supplied in the report on Convention No. 17 with interest. It notes, however, that, as the Government itself points out, the rural sector is not in practice covered by the social security scheme. In these circumstances, the Committee is bound to urge once again that since the social security scheme does not cover the whole of the national territory, the Government should amend the Labour Code, which sets out lower levels of compensation, as regards the duration of both medical assistance and cash benefits, than those fixed by the compulsory social security scheme. The Committee also requests the Government to continue supplying information on the extension of the industrial accident branch of the social security to the rural sector and to supply copies of the social security regulations that are envisaged under section 132 of Decree No. 1650 of 1977. [The Government is asked to report in detail for the period ending 30 June 1991.]