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

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

With reference to its previous comments made in 1993 and 1995 (November-December), the Committee notes the information provided by the Government, in particular that relating to Part XIII (Common provisions), Article 72 (Participation of protected persons in system administration). It also notes the adoption of Act No. 42/1994 to unify the benefits in respect of temporary incapacity for work and of temporary invalidity in a single temporary incapacity benefit. Furthermore, the Committee notes the information contained in the observation sent by the General Union of Workers (UGT).

1. Part III (Sickness benefit), Article 18; Part VI (Employment injury benefit), Article 38 (in relation to Article 69(f)). In its previous comments, the Committee observed that under the provisions of the General Social Security Act the benefits in respect of temporary incapacity could be refused, cancelled or suspended where this incapacity was caused or prolonged by "recklessness" on the part of the beneficiary. The Committee notes with satisfaction that following the adoption of Act No. 42/1994 of 30 December, this cause of loss or suspension of entitlement to the temporary allowance has been removed from the text of section 132 of the General Social Security Act (LGSS).

2. Part III (Sickness benefit), Article 18 in relation to Part XIII (Common provisions), Article 71, paragraph 3, and Article 72, paragraph 2). (a) In its previous comments, the Committee requested the Government to indicate the measures taken to ensure that employers fulfil their obligation to pay sickness benefits from the fourth day up to the fifteenth day of incapacity, in accordance with section 131, paragraph 1, of the LGSS, and with Royal Decree No. 5/1992 of 21 July. In its report, the Government indicates that where a worker has submitted the necessary health documents, the cash benefit shall be paid to him automatically. The Government adds that the doctor usually assigned to the worker by the corresponding health services is empowered to determine his state of incapacity. Furthermore, the Government explains that the fulfilment of an employer's obligations is guaranteed by means of the complaints made to the Labour and Social Security Inspectorate. In addition, in the case of non-payment of benefits, a worker may appeal to the courts, although the Government does not know of any court decisions handed down in this regard. Finally, the Government indicates that no provisions exist to ensure that benefits are paid in case of the insolvency of an employer.

For its part, in a communication of 15 November 1996 the General Union of Workers confirms its previous observations in which it indicated that the reform of 1992 causes significant problems both by absolving the State of its responsibility emanating from the Convention and by generating codes of conduct and practices contrary to a worker's dignity. In particular, the enterprises which are unaware of the sanitary authorities whose task it is to draw up official documentation, subject workers to examinations by their own medical staff and begin by suspending the payment of benefits from the start of the period of sick leave, apart from where the leave is the result of surgery or an accident, so that workers are obliged to appeal to the courts for entitlement to the benefits which should be paid to them.

The Committee notes this information. It recalls that although the obligation of an employer to pay sickness benefits for a limited period may be considered to correspond to the case laid down in the Convention, such a system must still offer all the guarantees in respect of the payment of benefits in practice. In such a case, it is the responsibility of the State to take all the necessary measures to achieve this aim, in accordance with Article 71, paragraph 3, and Article 72, paragraph 2. The Committee considers that a worker should not, as a rule be obliged to refer his case to the Labour Inspectorate or to the courts in order to receive the sickness benefits which should be paid to him. Consequently, the Committee hopes that the Government's next report will contain detailed information on the steps taken against employers who do not fulfil their obligations, in particular to ensure that such employers do not replace doctors from the sanitary authorities usually empowered to conduct examinations with their own medical staff, and that they only suspend the payment of sickness benefits in the cases authorized under Article 69. The Committee also hopes that the Government will be able to take measures to ensure, in all cases, the payment of sickness benefits owed by an employer, both within the framework of Royal Decree No. 5/1992 and of section 77, paragraph 1(d) of the LGSS, in particular in case of the insolvency of an employer, or a delay in the payment by him of sickness benefits. The Committee asks the Government to provide, in its next report, complete information on the checks made by the Labour and Social Security Inspectorate, in particular on the number of inspections made, the cases of infringements recorded and the penalties imposed. Finally, the Committee requests the Government to provide copies of the texts of all administrative and court decisions adopted in this area as well as the texts of any new legislation which may be adopted.

(b) As regards more particularly the possibility offered to employers in the cooperation provided for in section 77, paragraph 1(d), of the LGSS, i.e. to assume direct responsibility for the payment of cash benefits in respect of temporary incapacity resulting from a common risk, the Committee notes the text referred to by the Government in its report, and in particular the Order of 18 January 1993 and Royal Decree No. 2064/1995 of 22 December. The Committee observes that in return for the obligation to pay sickness benefits directly, an employer benefits from a reduction in the contributions to be paid; in addition, an employer must allocate any possible surplus funds resulting from the cooperation provided for in section 77, paragraph 1(d) referred to above -- which is only possible if it involves all the workers in an enterprise -- to improving the cash benefits paid in the case of temporary incapacity. By contrast, in the texts examined the Committee has not found any other obligations likely to ensure, in all cases, the payment of sickness benefits in practice. In order to be in a better position to assess the situation, the Committee requests the Government to provide, in its next report, detailed information on the implementation in practice of section 77, paragraph 1 of the LGSS, by indicating in particular the number of enterprises which have engaged in such cooperation and the number of workers concerned. It also wishes to receive information on the checks made by the Labour and Social Security Inspectorate and on the their results (number of infringements, penalties and so on) (see also 2(a) above).

3. Part VI (Employment injury benefit). (a) Article 34, paragraph 2. Further to its previous comments and to the observation previously supplied by the UGT, the Committee notes that the Government's report does not contain any new information specifying the provisions of national legislation under which nursing care at home, dental supplies and eyeglasses are supplied to the victims of occupational injuries, in accordance with Article 34, paragraph 2(c) and (e). It hopes that the Government would provide this information in its future report.

(b) Article 36 (in relation to Article 65, paragraph 10). The Committee again requests the Government to provide all the statistics requested under Article 65, Title VI, in the report form adopted by the Governing Body in respect of the revaluation of the pensions allocated to the victims of occupational injuries in the case of permanent incapacity, or to their survivors in the case of death, together with information on the changes in the cost of living and the general level of earnings.

4. Part IV of the Convention (Unemployment benefit), Articles 23 and 24. In this regard, the Committee refers to the observations made under the Unemployment Provision Convention, 1934 (No. 44), at the present meeting and at the meeting held in November-December 1995 (points 1 and 3).

[The Government is asked to report in detail in 1998.]