Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 17) sur la réparation des accidents du travail, 1925 - Kirghizistan (Ratification: 2005)

Article 1 of the Convention. Ensuring compensation to workers who suffer personal injury due to a work accident through effective provisions . (i) Employer’s liability system. The Committee takes note of the information provided by the Government in reply to its request for clarification on the provisions of its national legislation regulating the payment of compensation and benefits to victims of industrial accidents and their dependents, and to its invitation to give a general appreciation of the manner in which the Convention is applied. The Government indicates that compensation in case of incapacity for work or death of a worker due to a work-related injury is provided by their employers, who have the obligation, under Law No.194, 2008, to insure their civil liability “for harm caused to the life and health of workers in the course of employment” with a licensed insurance company. The Committee also notes that, according to the Government, this system serves the interests of insurance companies and places a heavy financial burden on employers who still have to pay significant amounts of other benefits in case of employment injury, such as benefits for temporary incapacity for work, lump-sum payments, and additional expenses. The Government considers that this system sets the stage for disagreements between the parties and results in numerous complaints and appeals to various state bodies.

(ii) Social insurance system. The Committee further notes the indication by the Government that, although section 211 of the Labour Code and section 11 of the Act No. 167 on Occupational Safety and Health, 2003, require employers to insure their workers against industrial accidents and occupational diseases by way of mandatory social insurance, there is currently no legislation regulating this matter. The Committee also observes that, pursuant to Law No. 57 of 21 June 1997 on the State Pension Social Insurance and according to the database of the International Social Security Association (Social Security Programs Throughout the World, 2018), victims of work injury who suffer a permanent disability and their dependents, in case of death, are entitled to a pension, paid at the same rate and under the same conditions as pensions provided in case of disability and survivorship under the general pension scheme.

The Committee observes that workers’ compensation in Kyrgyzstan is provided through a combination of employers’ liability, private insurance and social insurance schemes, implemented to a varying extent. Taking note, in particular, of the information provided by the Government on the systemic issues faced by the employers’ liability system established by Law No.194, 2008, the Committee requests the Government to take the necessary measures to address the abovementioned issues with a view to ensuring the effective provision of compensation to all workers injured in the course of employment or to their dependents in case of death, in application of the Convention. As part of these measures, the Committee recommends the strengthening of enforcement and compliance mechanisms. Recalling the important role of labour inspection in this regard, the Committee requests the Government to refer to its detailed comments under the Labour Inspection Convention, 1947 (No. 81).

Furthermore, noting the absence of legislation regulating the provision of protection against work-related injury by way of social insurance, the Committee invites the Government to adopt the regulations lacking to give effect to Section 211 of the Labour Code and section 11 of the Act No. 167 on Occupational Safety and Health, 2003, and to provide information on progress made in this respect. The Committee recalls that the Government can avail itself of the technical assistance of the ILO in this regard.

The Committee also requests the Government to supply data on: (i) the number and nature of work accidents reported and the number of work accidents in respect of which compensation was paid; (ii) the total amount of compensation paid in cash and the average amount of compensation paid to victims of work accidents; and (iii) the number of complaints and appeals lodged with the competent judicial and administrative bodies on matters related to the application of the Convention.

Article 5. Compensation in case of permanent incapacity and death. The Committee observes that in accordance with section 19(5) of Law No. 194 of 5 August 2008, the amount of insurance compensation paid to victims of employment injury is determined on the basis of the loss suffered by the worker, but that it cannot be more than the amount determined in the insurance contract which employers have to conclude to insure their liability. The Committee further observes that as per the Decree No. 113 of 26 February 2010 on approval of insurance tariffs and insurance amounts (liability limits) of compulsory liability insurance, the maximum amount of the insurance compensation is limited and should not be less than one year of the worker’s salary. The Committee also observes that in accordance with sections 247 and 252 of the Labour Code, the amount of the lump-sum payment for which the employer is liable corresponds to ten times the average annual earnings of a worker with a Group I disability and, in case of death of the worker, to twenty times his/her average annual earnings. Recalling that Article 5 of the Convention requires the compensation in case of permanent injury or death to take the form of a periodical payment, and provides that this payment can be converted into a lump sum if the competent authority is satisfied that it will be properly utilized, the Committee requests the Government to indicate how it is ensured, in law and in practice, that the compensation paid by insurance companies and the lump-sum payments made by employers are properly utilized by recipients. The Committee also requests the Government to indicate whether workers who suffer a permanent incapacity and the dependents of workers who have died due to a work-related injury are also entitled to an invalidity or survivors’ pension under the general public pension scheme established by Law No. 57 of 21 June 1997.

Article 9. Entitlement to medical, surgical and pharmaceutical aid free of charge. The Committee observes that, in accordance with the Program of State Guarantees for Providing Citizens with Health Care approved by the Government Decree of November 20, 2015, No. 790, all persons suffering work-related disabilities belonging to groups 1 and 2 are entitled to inpatient and outpatient medical aid free of charge (paragraph17 of section I of Annex I). The Committee requests the Government to indicate whether all victims of work-related injury are entitled to medical, surgical and pharmaceutical aid free of charge, when such aid is recognized to be necessary, regardless of the nature of the injury they have suffered.

Article 11. Insolvency of insurance companies. The Committee takes note of the Government’s indication that the Law No. 194, 2008, does not provide for the compensation of workers who suffered an employment injury in case of liquidation or bankruptcy of insurance companies. Recalling that Article 11 of the Convention requires the payment of compensation be provided to workers or their dependents due to an industrial accident in the event of the insolvency of the employer or insurer, the Committee requests the Government to provide information on any other measure ensuring that victims of employment injury are effectively compensated for their loss despite the liquidation or bankruptcy of the insurance companies through which such compensation would have otherwise been provided.

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 Convention No. 17 is 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), accepting its Part VI (see GB.328/LILS/2/1). Conventions Nos 121 and 102 reflect the more modern approach to employment injury benefits. 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 Conventions Nos 121 or 102 (Part VI) as the most up-to-date instruments in this subject area.