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

Social Security (Minimum Standards) Convention, 1952 (No. 102) - Spain (Ratification: 1988)

Further to its previous comments, the Committee notes the detailed information sent by the Government in its report for the period 1996-98, particularly concerning the adjustment of pensions granted to the victims of occupational injuries in the event of permanent incapacity or to their survivors in the event of death (Article 36, in conjunction with Article 65, paragraph 10). The Committee also notes the comments of 27 February 1999 sent by the General Union of Workers (UGT), concerning the application in Spain of certain Conventions, including Convention No. 102, which were sent to the Government on 17 March 1999.

1.  Part II (Medical care) of the Convention.  The UGT alleges that the health system is constantly at risk of being privatized owing to certain forms of management or the exclusion of drugs from public funding. At the same time this usually results in a "adverse selection of risks", as the more costly treatments are left to the public sector while the most profitable go to the private sector. The year 1998 saw the last withdrawal from public funding of a long list of drugs amounting to 35 million pesetas. In the UGT’s opinion, this policy of cuts in the health budget is wrong. Many of the drugs withdrawn are for the treatment of chronic diseases among the elderly, denying the latter their right to health and contravening Article 10, paragraph 1(a)(iii), of the Convention. Geographically speaking, there has been a process of transfer to the autonomous communities based on financing alone rather than on the establishment of a single coordinated model. This is the cause of serious inequalities between the inhabitants of the various autonomous communities. As to effective medical care, in Spain the waiting lists for some specialist treatments can amount in effect to a denial of the right to health, since the delay aggravates the illness, which can prove fatal for the patient. The Committee asks the Government to send its comments on the UGT’s observations.

2.  Part III (Sickness benefit), Article 18 (in conjunction with Part XIII (Common provisions), Articles 71, paragraph 3, and 72, paragraph 2).  In its previous comments, the Committee requested the Government to indicate the measures taken to ensure that employers meet their obligation to pay the sickness benefit from the fourth to the fifteenth day of incapacity, in accordance with section 131(1) of the General Social Security Act (LGSS) and Royal Decree No. 5/1992 of 21 July, and in particular to ensure that they do not substitute their own physicians for those normally used by the health authorities and that they suspend the payment of sickness benefits only in the cases allowed by Article 69 of the Convention. It also asked the Government to take measures to ensure the payment of sickness benefits in the event of the employer becoming insolvent or falling behind with the payments.

In its reply, the Government refers to the new measures for the management and supervision of the cases of temporary incapacity established in Royal Decree 575/1997 of 18 April and the Ministerial Order of 19 June 1997, and indicates that the public health service is still responsible for supervising cash benefits. Consequently, it is this service and not the enterprise that issues the notifications of incapacity, confirmation or fitness which determine entitlement to cash benefits for temporary incapacity. The enterprise may not unilaterally terminate the medical incapacity of its workers and must base itself on one of the grounds established by law for suspending or terminating the benefit. If the enterprise fails to meet its obligation to pay the benefit, it becomes liable and may be reported to the Labour Inspectorate and even sued for debt in administrative and/or judicial proceedings. If the enterprise is no longer liable because the labour relationship has ended, the managing entity will pay the benefit directly.

The UGT confirms its previous observations of 1995 and 1996, in which it indicated that the 1992 reform raised important issues concerning the State’s discharge of its responsibilities: from the fourth to the fifteenth day of the incapacity, the State does not directly assume responsibility for the guarantees prescribed by the Convention. This results in conduct and practices which offend against the dignity of workers and, in some cases, the latter are denied the benefit due to pressure from the employer. According to the UGT, the employer subjects the worker to excessive supervision, allowed by section 20.4 of the Workers’ Statute, which also authorizes the employer to suspend payment of the sickness benefit if the worker refuses to undergo a medical examination. The State thus in effect loses control over the guarantee required by Convention No. 102.

The Committee notes the information on the new measures related to the management and supervision of the temporary incapacity mentioned by the Government as well as the statement of the UGT that the important problems in this area remain, which seems to be supported by the detailed statistics supplied by the Government on the inspections made, infringements recorded and penalties imposed by the Labour and Social Security Inspectorate in 1996-97 in the area of social security and, more particularly, with respect to compulsory and voluntary collaboration of enterprises in the management of the benefit for temporary incapacity. Indeed, while the number of inspections carried out in 1997 (4,579) decreased in comparison with 1996 (4,877), the number of infringements recorded has substantially increased from 1,167 in 1996 to 1,526 in 1997. Measures to combat infringements included the adoption of Royal Decree 575/1997 of 18 April, and the Ministerial Order of 19 June 1997, the purpose of which is to "improve the efficiency and transparency of the management of temporary incapacity, avoiding the risk of abuse and fraud while at the same time observing the rights of those actually affected by the incapacity provided for in the law". The Committee observes that both the above texts establish more specific provisions on medical certification of incapacity or fitness for the purposes of the cash benefits for temporary incapacity and the resulting obligations of the public health services and enterprises. However, with regard to supervision and follow-up of the cash benefit and cases of temporary incapacity, under section 4 of Royal Decree 575/1997 the managing entities of the social security have the authority to carry out "activities for the purpose of ascertaining that the facts and situation which gave rise to the entitlement to the benefit still exist, as from the date on which they take over responsibility for the cost of the cash benefit for temporary incapacity. In legal terms this can mean that the managing entities do not normally supervise and follow up this benefit from the fourth to the fifteenth day of the incapacity when the enterprise is responsible for the cost of the benefit. This may result in the conduct and practices on the part of the employer referred to by the UGT and in the worker being denied the benefit. According to the Government, in such cases the worker may report the matter to the Labour Inspectorate or file an administrative or judicial complaint. If there is no longer an enterprise responsible for payment of the benefit because the labour relationship has been terminated, the managing entity will pay the benefit directly.

In the Committee’s view, workers should not as a rule have to take the matter to the Labour Inspectorate or the courts in order to receive sickness benefits due to them and, if employers fail to meet their obligations, it is up to the State to take the necessary steps to ensure that the benefits are paid in practice, in accordance with Article 71, paragraph 3, and Article 72, paragraph 2, of the Convention. The Committee notes in this connection the decision handed down on 15 June 1998 by the Supreme Court, whereby "the fact that the law requires the employer to pay the temporary incapacity benefit directly during the period in question does not mean, in the absence of an express provision, that such obligation shall have the effect of depriving the beneficiary of the system of coverage and guarantees established for social security benefits in the event of failure to pay … The system of obligations and accompanying guarantees established in respect of this benefit in the public social security scheme in the event of the employer’s failure to meet the obligation to pay it directly, must be maintained, without prejudice to the managing entity’s right to reclaim the amount subsequently from the enterprise in question, in exercise of the authority conferred on it as a managing entity of the social security system". The Committee therefore asks the Government to provide information in its next report on the abovementioned "system of obligations and accompanying guarantees". It also hopes that the Government will continue to provide copies of the relevant judicial decisions together with information on the supervision carried out by the Labour and Social Security Inspectorate, including the number of inspection visits made, the infringements recorded and the sanctions applied.

3.  Part III (Sickness benefit), Article 18, and Part VI (Employment injury benefit), Article 36, paragraph 1 (in conjunction with Part XIII (Common provisions), Articles 71, paragraph 3, and 72, paragraph 2).  With regard more particularly to the possibility for the employer to assume responsibility for direct payment of cash benefits for temporary incapacity for work resulting from common illness, in the context of the collaboration provided for in section 77(1)(d) of the LGSS, the Committee notes that such collaboration also extends to temporary incapacity resulting from employment injury as provided in section 77(1)(a). The Committee thanks the Government for having supplied the statistical information requested in its previous comments on the supervision carried out by the Labour and Social Security Inspectorate in 1996-97, with regard to compulsory and voluntary cooperation of enterprises in the management of the benefits for temporary incapacity. As the Committee observed under point 2 in its previous comments, these statistics show a substantial increase in the number of recorded infringements by enterprises. To combat this trend, the Government refers to a number of measures taken. Royal Decree 706/1997 of 16 May establishes that enterprises cooperating in social security management are subject to the financial supervision of the General Social Security Controller, without prejudice to the authority conferred on the Labour and Social Security Inspectorate. The purpose of such supervision is to ascertain, in particular, that the scope and amounts established by law for protective measures are observed. Furthermore, to ensure that the system for voluntary collaboration by enterprises in social security management operates properly, the Government adopted the Ministerial Order of 20 April 1998 to amend the Order of 25 November 1996 regulating the cooperation of enterprises in the management of the General Social Security Scheme, the object of which is to avoid practices which are contrary to the nature of the institution, such as the practice of transferring the management of cash benefits for temporary incapacity to entities other than the authorized enterprise. Provisions have also been introduced to bring greater clarity to the obligations, to ensure that public benefits are paid in the event of lack of resources and to establish instruments for ascertaining the proper use of the resources earmarked for the collaboration in question.

The Committee notes these measures with interest. It also notes that they concern a very large number of workers in the enterprises cooperating in the management of the social security system. According to the statistics given by the Government, on 22 April 1998, the number of workers covered by the cooperation arrangement established in section 77(1)(d) of the LGSS was 1,276,292, corresponding to 16,868 contribution registers assigned to participating enterprises. In order to be able to assess the effectiveness of these measures, the Committee would like the Government to continue to supply detailed statistics on the number and the results of the checks carried out by the Labour and Social Security Inspectorate, as well as by the General Social Security Controller. It would also like the Government to provide statistics on the number of workers concerned and enterprises taking part in the other forms of voluntary collaboration provided for under section 77(1), in particular subparagraph (a). Lastly, the Committee would welcome information on any new measures taken or contemplated by the Government with a view to improving the functioning of the system of voluntary collaboration of enterprises in the payment of sickness benefit and ensuring the payment of this benefit in case of its malfunctioning.

4.  Part VI (Employment injury benefit), Article 34, paragraph 2(c) and (e).  In its previous comments the Committee requested the Government to indicate the legislative provisions or regulations under which nursing care at home, dental supplies and eyeglasses are provided free of charge to victims of employment injury, in accordance with these provisions of the Convention. In reply, the Government refers to section 11 of Decree No. 2766 of 1967, which provides that medical assistance in the event of employment injury shall be provided to workers as fully as possible and include: (a) medical and surgical care for injuries and diseases, medicaments and, in general, all the diagnostic and therapeutic techniques considered necessary by the medical profession; (b) the supply and normal resupply of prosthetic and orthopaedic appliances considered necessary, as well as vehicles for disabled persons; and (c) plastic surgery under certain conditions. With regard in particular to nursing care at home, the Government adds that Royal Decree No. 63 of 1995 includes in Annex I, among the benefits provided directly by the national health system and financed by social security or public funds, medical assistance at the home of the patient. Similarly, care at home is provided for immobilized patients and patients in the terminal phase, as well as primary emergency care at the home of the patient. In this respect, the Committee notes that point 2(4) of Annex I of Royal Decree No. 63 of 1995 states that primary emergency assistance is provided continuously at all hours of the day and night and includes outpatient medical and nursing care, as well as care at the home of the patient in cases in which it is required. The Committee asks the Government to confirm in its next report that the victims of employment injury are entitled free of charge to the nursing care at home which is necessary during the entire period that they are immobilized.

Furthermore, the Committee also notes a number of provisions to which the Government refers in its report, and particularly section 108 of Royal Decree No. 2065/1974, Annex I of Royal Decree No. 65/1995 and the Ministerial Order of 18 January 1996, which refer to the possibility of providing financial assistance for "dental and special prosthetic appliances", covering the difference between the cost of the corresponding articles and the share of the user, according to the prescribed rates. However, it notes the statement by the Government that dental prosthetic appliances, with certain exceptions for the palate, as well as eyeglasses, which are covered by Article 34, paragraph 2(e) of the Convention, are not included in the list of benefits provided by the health system. It notes in this respect that Annex V of the Ministerial Order of 18 January 1996, which defines dental and special prosthetic appliances, only makes reference in this respect to prostheses of the palate. In these conditions, the Committee would be grateful if the Government would indicate in its next report the measures which have been taken or are envisaged to give full effect to this provision of the Convention in national law and practice with regard to the provision free of charge of dental supplies and eyeglasses to the victims of employment injuries.

5.  The Committee notes the communication dated 29 February 2000 sent by the Moroccan Democratic Confederation of Labour on the application by Spain of certain Conventions, including Convention No. 102, and the comments which the Government saw fit to make on these issues.