Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121) - Chile (Ratification: 1999)

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

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

Referring to its previous comments, the Committee notes the information supplied by the Government in respect of Article 3 of the Convention (Coverage of seafarers and civil servants) and Article 24 (Participation of representatives of the insured persons in the management of employment injury insurance).

Article 14(3). Level of periodical payments in case of permanent partial invalidity. In reply to the Committee’s previous comments regarding the rate of partial disability pensions as opposed to that of total disability pensions, the Government indicates that the mandate for assessing and revising permanent incapacity belongs to specialized medical bodies (preventive and disability medical commissions – COMPIN – and mutualities of employers) following a pre-established scale contained in existing legal provisions, also taking into account other factors such as age, gender and the usual profession of the victim. In accordance with section 29 of Supreme Decree No. 109 of 1968, as amended, which contains the rules on the determination and assessment of industrial accidents and occupational diseases, the scale for assessing the loss of earning capacity is graduated 2.5 by 2.5 percentage points below 40 per cent incapacity and 5 by 5 percentage points above this level. The medical authorities determining the disability rates have nonetheless a large degree of flexibility in determining the incapacity rate which, in extreme cases, could be established 25 points higher than the strict clinical criteria. The Committee notes the flexibility allowed in assessing the rate of incapacity by taking into account other weighting factors. The Committee would like the Government to monitor the disability assessment processes by comparing data regarding the number of total and partial disability pensions granted with the corresponding rates of disability in the context of the COMPIN or the mutualities of employers. Please supply this data for the period covered by the next detailed report.

Article 14(4). Permanent partial loss of earning capacity which is not substantial. In reply to the Committee’s previous comments, the Government confirms that the types of disabilities causing 15 to 39 per cent loss of earning capacity are not substantial compared to the disabilities of 40 per cent and above. In accordance with section 35 of Act No. 16.744 of 1968 as amended, in case of loss of earning capacity of 15 to 39 per cent, the victim of employment injury receives a global compensation in the form of a lump sum which may not exceed 15 months of the base salary. The Committee requests the Government to supply statistical data on the number of cases in which lump-sum payments have been made and their amounts.

Article 26. Prevention and rehabilitation measures. Please indicate whether the Social Security Superintendence has issued the regulations implementing the duty of employers to immediately report fatal and serious occupational accidents to the labour inspection services and regional secretariats of the Ministry of Health, established by Act No. 20.123, modifying section 76 of Act 16.744.

Follow-up to the comments made in 2006 and 2007 by the Autonomous Confederation of Workers of Chile (CAT), the Latin American Central of Workers (CLAT) and the International Trade Union Confederation (ITUC) in respect of workers of the enterprise CODELCO-Chile – División Andina who have suffered total or partial work incapacity due to silicosis. In the absence of any indications from its report, the Committee asks the Government to explain whether preventive and remedial measures have been carried out in each worksite by the various regional health ministry secretariats and by the labour inspection services and what rehabilitation measures have been taken by the insurance management bodies governed by Act No. 16.744 as well as by the FONADIS programme for rehabilitation and training.

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

Article 3 of the Convention. Coverage of seafarers and civil servants. The Government indicates in its report of 2008 that the categories of workers envisaged by this provision of the Convention, i.e. the seafarers and civil servants, are protected by special schemes which provide benefits equivalent to those provided to other workers. The Committee also notes that Act No. 19.345 of 1994 extended to certain categories of civil servants the application of Act No. 16.744 of 1968 on employment injuries. The Government is invited to specify which protection schemes apply to seafarers and to the categories of civil servants to whom Act No. 16.744 has not been extended so far and to provide the corresponding legal texts.

Article 14(3). Level of periodical payments in case of permanent partial invalidity. Section 38 of Act No. 16.744 provides that in case of permanent partial invalidity, where the assessed degree of disability is between 40 and 69 per cent, the monthly pension represents 35 per cent of the base salary as opposed to 70 per cent in case of total disability (article 39). The Committee recalls that, according to this provision of the Convention, the amount of the partial disability pension shall represent a suitable proportion of the total disability pension. It invites the Government to explain how the national legislation gives effect to this provision considering that a person with assessed 69 per cent of disability is granted half of the pension of a person with 70 per cent disability.

Article 14(4). Permanent partial loss of earning capacity which is not substantial. In accordance with section 35 of Act No. 16.744, in case of loss of earning capacity of 15 to 39 per cent, the victim of employment injury receives a global compensation in the form of a lump sum which may not exceed 15 months of base salary. The Committee invites the Government to explain what types of injuries are deemed to cause 15 to 39 per cent loss of earning capacity, bearing in mind that, in accordance with Article 14(4) of the Convention, lump sum payments are, in principle, only authorized for cases of permanent partial loss of earning capacity which is not substantial.

Article 24. Participation of representatives of the insured persons in the management of employment injury insurance. In accordance with section 8 of Act No. 16.744, the administration of employment injury insurance is the responsibility of the Social Insurance Office, the National Health Service, the pension funds and the mutual employer funds. The Committee requests the Government to specify the mechanisms prescribed by national legislation ensuring that the representatives of the insured persons are consulted or participate in the management of the different employment injury insurance institutions.

Follow-up of the 2007 observation. The Committee notes that the information provided by the Government in its last report does not reply to its previous observation of 2007, in which it asked the Government to provide additional information on the measures taken to address the issues raised in 2006 by the Autonomous Confederation of Workers of Chile (CAT), the Latin American Central of Workers (CLAT) and the International Trade Union Confederation (ITUC). The Committee requests that the Government provide this information with its next regular report to be submitted in 2012.

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

The Committee notes the detailed information sent by the Government in its report for the period ending on 31 August 2006. It also takes note of the new laws that have been adopted in the area of occupational health and safety and occupational risks.

In its previous comments, the Committee noted the information sent by the Government in response to comments made by the Autonomous Confederation of Workers of Chile (CAT), the Latin American Central of Workers (CLAT) and the International Trade Union Confederation (ITUC) alleging, among other things, failure to apply certain provisions of Convention No. 121 to the workers of CODELCO-Chile – División Andina who have suffered total or partial work incapacity due to silicosis. The Committee noted that, according to the Government, 9 per cent of CODELCO’s active workers suffer from silicosis and not 28 per cent as alleged. Noting that the high percentage of workers still affected by silicosis was an evidence of a high risk situation, the Committee asks the Government to continue to take preventive measures to reduce the levels of exposure to silica to the minimum possible. It also asks the Government to provide, in accordance with Article 26 of the Convention, detailed information on: (a) measures taken in this regard, indicating the inspections carried out in this sector and the corresponding reports; (b) the rehabilitation measures taken in order to prepare incapacitated workers to resume their previous activities, or, if this is not possible, to perform an alternative gainful activity suited to their abilities and qualifications; (c) developments in cases being heard by the courts.

On the matter of risk prevention measures, the Committee notes that the supervision of measures or activities carried out in each worksite is the responsibility of the various regional health ministry secretariats, which, pursuant to Act No. 19937, have taken over these duties from the health services and, without prejudice to the powers of the labour directorate, the duties set forth in section 191 of the Labour Code. The Committee hopes that the Government will shortly seek the requested information from the competent authorities and send it with its next report.

With regard to measures for the rehabilitation and occupational pre-training of workers who have suffered industrial accidents or occupational diseases, the Government indicates that these are carried out by each insurance management body and Act No. 16744, free of charge whenever this is necessary. As to measures to facilitate the placement of workers who have been incapacitated, the Government indicates that these are included in the abovementioned measures and that in Chile there is a National Disability Fund (FONADIS) through which the programme for the placement of persons with disabilities in jobs in the labour market is implemented. The Committee takes note of this information. It also notes the report on rehabilitation for work produced by the Social Security Supervisory Authority for 2003–06, and the statements made by this Authority on rehabilitation. It asks the Government to continue to provide information, including statistics, on rehabilitation measures taken by the insurance management bodies governed by Act No. 16744, and on the FONADIS programme for rehabilitation and training.

Furthermore, in the context of the ILO/WHO Global Programme for the Elimination of Silicosis by 2030, the Committee notes that the Ministries of Labour, Social Security and Health recently confirmed the Government of Chile’s commitment to strive for the elimination of silicosis by 2030 and that to that end they will head to the development of a national tripartite plan to achieve this goal. On the prevention of silicosis-related occupational risks at work, the Government indicates that, in the context of social security for health at work, standing activities for the prevention of occupational risks are to be conducted which will concern all such actions, procedures or instructions as the management bodies or enterprises with delegated management must carry out within the existing legal and regulatory framework, in relation to the nature and magnitude of the risks associated with the production activities in the employing entities affiliated either to the enterprise with delegated administration, and which the latter must implement, as appropriate, with assistance from the occupational risk prevention departments and/or works committees, as the case may be, regardless of whether or not industrial accidents or occupational diseases occur. To this end, a record must be kept of measures taken and their results. The Committee asks the Government to provide examples of the records of measures carried out and their results, together with information on measures taken by the Labour Inspectorate, together with the corresponding reports.

As to the legal proceedings before the courts, the Committee takes note of Oficios Nos 60826 and 32184 of 9 December 2005 and 16 May 2007, respectively. The first informs the Chief of the International Relations Department of the Ministry of Labour and Social Welfare of the status of the cases mentioned and which are brought against the División Andina de CODELCO-Chile, and the second response to a request from the First Court of los Andes, which is hearing case No. 313-06 “Ortiz and others v CODELCO-Chile – División Andina”, which is being sued for damages.

[The Government is asked to reply in detail to the present comments in 2008.]

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

The Committee notes the detailed information provided by the Government in its report for the period ending 31 August 2005, received in February 2006. It also notes the information sent by the Government in response to the comments submitted by the Autonomous Confederation of Workers of Chile (CAT), the Latin American Central of Workers (CLAT) and the World Confederation of Labour (WCL) alleging, among other things, the failure to apply certain provisions of Convention No. 121 to the workers of CODELCO Chile – División Andina who have suffered total or partial work incapacity due to silicosis.

The Government indicates, in response to the concerns expressed by the above organizations, that: (a) 50 per cent of the 115 decisions by the health services (COMPIN), which found that silicosis was the cause of invalidity, were declared as being without basis by the health authority. Only 9 per cent of CODELCO’s active workers suffer from silicosis and not 28 per cent as is alleged; (b) the measures taken in accordance with legislation resulted in lower levels of exposure to silica between 1999 and 2004; (c) no worker was terminated with the intention of hiding the problem; those workers who expressed their concern were able to take advantage of voluntary retirement plans; (d) the División Andina  is authorized to act as a delegated social insurance administrator in matters of occupational hazards pursuant to section 72 of Act No. 16.744 and section 23 of Supreme Decree No. 101; (e) CODELCO allowed inspection authorities to enter its premises and is not exempt from Chilean law; (f) it is not more advantageous to allow workers to be exposed to the risks of silica than to invest in preventative measures. Workplace accidents imply for the employer the payment of medical benefits and the costs associated with work incapacity; (g) around 50 per cent of those workers diagnosed by computer-assisted axial tomography and x-ray do not actually suffer from silicosis. The COMPIN decisions were in error for using inadequate diagnostic instruments. Of the 13 appeals lodged by CODELCO with the Comere (appellate body), it was found that 11 individuals did not have silicosis: on appeal, the Social Security Superintendent determined that ten of the decisions nullifying the initial diagnoses were justified; (h) with regard to other cases, the Government indicates that four are currently under judicial consideration; (i) it also provides information on the measures adopted in applying section 184 of the Labour Code, 71 and 72 of Act No. 16.744 and 72 of Supreme Decree No. 594 of 1999; (j) CODELCO-Chile and all of its workplaces are in conformity with the relevant legal provisions, as demonstrated by the lack of violations registered by the competent authorities. In this respect, the Government points to a judgement from the Court of Appeal of Valparaiso on a protective appeal by a member of Parliament which was confirmed by the Supreme Court, in which three inspection services provided information that CODELCO had no existing infractions or fines.

The Committee notes this information. It notes, according to the Government, that 9 and not 28 per cent of CODELCO workers suffer from silicosis. The Committee considers that this still represents a high number of workers affected by silicosis and thereby constitutes a high risk. It hopes the Government will continue to take preventative measures in order to reduce to the minimum possible the levels of exposure to silica. The Committee asks the Government to provide, in conformity with Article 26 of the Convention, detailed information on the measures taken in this regard, as well as information on the inspections carried out in the mining sector and the corresponding reports and findings. The Government is further requested to provide information on the rehabilitation measures taken in order to prepare incapacitated workers to resume their previous activities or, if this is not possible, to perform an alternative gainful activity suitable to their aptitudes and capacity. Lastly, the Committee asks to be kept informed of all developments in the cases previously mentioned by the Government that are under judicial consideration.

The Committee will examine the Government’s report at its next session together with the information submitted by the Government in its next regular report due in 2007.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee refers the Government to its observation and requests further information on the following points.

Article 4 of the Convention. The Committee notes from the information sent by the Government that Act No. 16744 of 1968 on social insurance against risks of occupational accident and disease applies to all workers including, pursuant to section 2, all those who work for others. So that it can assess more accurately how the Convention and the legislation are applied in practice, the Committee asks the Government to provide information in its next report on the number of employees actually covered by the insurance against the risk of occupational accident and disease in relation to the total number of wage earners.

Article 7. The Committee notes that according to section 5(4) read in conjunction with section 29 of the abovementioned Act, accidents due to force majeure which is totally unrelated to work give no entitlement to the cash benefits established in the Act, although the burden of proof of such force majeure lies with the employer. While fully aware that according to Article 7 of the Convention, national legislation prescribes the definition of "industrial accident", the Committee nonetheless points out that section 5 of Act No. 16744 on force majeure is restrictive in that it does not allow coverage of all accidents incurred in or in connection with work. The Committee would therefore be grateful if, when the legislation is next revised, the Government would consider dropping all provisions relieving employers of liability in the event of force majeure unrelated to work. The Committee would draw the Government’s attention in this connection to Paragraph 5(a) and (b) of Recommendation No. 121. Meanwhile, it asks the Government to provide in its future reports examples of the manner in which the provisions of Act No. 16744 on force majeure unrelated to work are applied in practice and to send any copies of administrative, judicial or other decisions given in this regard.

Article 9, paragraph 3. According to section of Act No. 16744 and sections 3 and 86(2) of Legislative Decree No. 3500 of 1980 establishing a new pensions system, payment of total or partial invalidity benefit for occupational injury ceases at age 65 for men and age 60 for women, the ages at which these workers become entitled to an old-age pension, pursuant to the provisions of Legislative Decree No. 3500. The Committee requests the Government to provide detailed information on the manner in which, in practice, the benefit payable under Act No. 16744 is converted to an old-age pension. Please also indicate whether the guarantee laid down in section 53(2) of Act No. 16744 that a new pension may in no event be lower than the pension paid to the invalid or less than 80 per cent of the base wage taken to calculate the pension continues to apply throughout the contingency regardless of the form of payment (see under Article 21 below).

Article 10, paragraph 1(c), (d) and (g). Please state whether, and if so under which provision, workers who sustain occupational injury are entitled to nursing care at home where necessary. Please also indicate whether the hospitalization provided for in section 29(1)(b) of Act No. 16744 includes free maintenance in the hospitals or medical institutions concerned. Lastly, the Committee requests the Government to supply further information on the manner in which effect is given to Article 10(1)(g) on treatment at the place of work.

Article 17. Please provide further information on any regulations implementing section 63(2) of Act No. 16744 which provides for the review of certification of incapacity at the request of the injured person.

Article 18, paragraph 2. Please indicate the manner in which effect is given to this provision of the Convention on funeral benefit, specifying the applicable provisions of the legislation.

Article 19 (in conjunction with Articles 13, 14 and 18). 1. The Committee notes the information supplied by the Government concerning the amount of benefits for temporary incapacity, invalidity and survivors. It notes in particular that the amount is based on the beneficiary’s previous wage and that in these circumstances Article 19 would appear to apply. So that it can assess more accurately the manner in which the Convention is applied in practice with regard to the amount of the benefits, the Committee hopes that the Government will not fail in its next report to send all the information, including statistics, requested by the report form, adopted by the Governing Body, under Article 19 of the Convention (in particular, Titles I, II, III and V) for incapacity benefit, invalidity benefit and survivors’ benefit.

2. Please state whether, in accordance with paragraph 10 of Article 19, a minimum amount is prescribed for periodical payments provided in the event of the permanent incapacity or death of the injured person.

Article 21 (Review of benefits). The Committee requests the Government to indicate the procedure for reviewing invalidity and survivors’ benefits paid for occupational injury, specifying the applicable provisions of the legislation. Please also provide all the statistical information requested by the report form under Article 21 of the Convention.

The Committee would also appreciate the same kind of information on the old-age pensions that replace invalidity benefits once the beneficiary reaches the age of entitlement to pension.

Article 2, paragraph 2. Please indicate whether, and, if so, under which provisions, where a cash benefit is suspended, part of it is paid to the dependants of the person concerned.

Article 23. Please indicate the appeal procedures that apply where administration is delegated pursuant to section 72 of Act No. 16744.

Article 24 (Participation of representatives of the persons protected). Please indicate whether, and, if so, under which provisions, representatives of the persons protected participate in the management of the employment injury scheme where the scheme is managed by an employers’ mutual company or an enterprise to which administration may be delegated, pursuant to section 11 and 72 of Act No. 16744.

Article 26, paragraph 1. 1. Please indicate the measures taken under the national health service system to ensure prevention of industrial accidents and occupational diseases in practice.

2. Please provide information on the rehabilitation services provided and the measures taken for the placement of disabled persons in suitable employment, in accordance with paragraph 1(b) and (c) of Article 26 of the Convention. Please also indicate the steps taken to ensure supervision of the application of section 71(1), Act No. 16744 requiring the enterprise to transfer workers sustaining occupational injury to tasks in which they are not exposed to the pathogenic agent.

3. Lastly, the Committee requests the Government to provide the full text of Supreme Decree No. 109 of 1968 regulating the definition and evaluation of occupational accidents and diseases.

[The Government is asked to reply in detail to the present comments in 2005.]

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the Government’s first report. It also notes the comments sent by the Autonomous Confederation of Workers of Chile (CAT), the Latin-American Central of Workers (CLAT) and the World Confederation of Labour (WCL) on 1 April, 3 May and 22 July 2004, alleging failure to apply certain provisions of Convention No. 121 to the workers of CODELCO Chile - División Andina who have total or partial incapacity for work due to silicosis. The Committee trusts that the Government will not fail to send full information in response to the comments of the above organizations. The Committee raises other matters in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2005.]