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

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

With reference to its previous comments, the Committee notes the information sent by the Government in its report for the period 1996-98, particularly the information concerning cash benefits for temporary incapacity in the event of strikes and lockouts (Articles 18 and 38 of the Convention).

Article 36 of the Convention.  (a)  The Committee recalls that under section 139(1) of the General Social Security Act (LGSS), and according to the information provided previously by the Government, workers whose degree of incapacity for their usual occupation, as established by incapacity evaluation teams (EVI) of the National Social Security Institute, exceeds 33 per cent, but does not make it impossible to perform the basic tasks inherent in such an occupation, are entitled to a lump-sum benefit. With regard to the evaluation criteria employed by these teams, the Government states, in response to the Committee’s previous comments, that case law has established a series of criteria to assess the impact of the injury on the capacity for work of the person concerned, on the basis of which it may be considered that the degree of permanent partial incapacity has been attained. According to this case law, injuries must make the performance of the tasks inherent in the usual occupation more difficult or more arduous, that is that the worker needs more time and more effort to carry out the work. This involves assessing the lost capacity for normal output in relation to the normal effort required to achieve that result. Permanent partial incapacity may exist even where the output is not reduced, if the physical effort that the person has to make is greater and the performance of the work therefore becomes more arduous. In contrast, despite the fact that an injury has an impact on the performance of the tasks inherent to a specific job, permanent partial incapacity does not exist where it does not affect output in other jobs of the same category. The Committee notes this information. It would like the Government to provide the text of the relevant judicial decisions concerning both cases of partial incapacity and cases of total incapacity covered by sections 139(1) and (2) of the General Social Security Act, taking into account the fact that, in accordance with Article 36, paragraph 2, of the Convention, in case of permanent partial loss of earning capacity or corresponding loss of faculty, the benefit shall be a periodical payment set at a suitable proportion. In this respect, the Committee asks the Government to indicate the benefits to which a worker would be entitled who, as a result of an employment injury, could only perform the tasks inherent to the job for half of the normal hours of work, particularly in the event that the worker could not be transferred to another job or the employment contract comes to an end.

(b)  In its previous comments, the Committee noted that section 8 of Act No. 24/1997 of 15 July replaced the definitions of the various categories of invalidity by specifying that qualification for the various degrees of permanent incapacity shall be determined on the basis of the percentage of the reduction in capacity for work. On this subject, the Government states that the regulations in question have not yet been adopted and that the previous provisions therefore remain applicable. The Committee hopes that the Government will provide the text of the new regulations when they are adopted.

Part XI (Standards to be complied with by periodical payments) in relation to the following Parts of the Convention: Part III (Sickness benefit), Article 16; Part V (Old-age benefit), Articles 28 and 29; Part VI (Employment injury benefit), Article 36; Part VIII (Maternity benefit), Article 50; and Part IX (Invalidity benefit), Articles 56 and 57.  With reference to its previous comments on the calculation of the above benefits, the Committee notes the statistics on the calculation of benefit provided in the Government’s report for sickness benefit and employment injury benefit and notes in particular that the Government refers to Article 65, paragraph 6(d), of the Convention, which defines a skilled manual male employee as a person whose earnings are equal to 125 per cent of the average earnings of all the persons protected. The Committee hopes that in its next report the Government will be able to provide the statistics requested in the report form under Article 65 with respect to all the abovementioned benefits.