Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

Convention (n° 102) concernant la sécurité sociale (norme minimum), 1952 - Espagne (Ratification: 1988)

Further to its previous comments, the Committee notes the detailed information supplied by the Government in its report.

1. Part III (Sickness benefit), Article 18 (in conjunction with Part XIII (Common provisions)), Articles 71, paragraph 3, and 72, paragraph 2. In its earlier comments, the Committee noted that, in accordance with Royal Decree No. 5/1992 of 21 July, issuing special budgetary measures, section 131(1) of the General Social Security Act (LGSS) provides that payment of the benefit due in the event of temporary incapacity for work resulting from common illness or a non-occupational accident is the responsibility of the employer from the fourth to the fifteenth day of leave inclusive. It also noted the observations made in this respect on several occasions by the General Union of Workers (UGT), according to which the 1992 reform raises considerable problems because the State no longer assumes direct responsibility for the guarantees laid down in the Convention. This results in conduct and practices which offend against the dignity of workers and, in some cases, involve denial of the benefit due as a result of pressure from the employer. The Committee therefore asked the Government to supply information on the measures taken to ensure fulfilment by the employers of their obligation to pay sickness benefit from the fourth to the fifteenth day of incapacity.

In its reply, the Government indicates that it has introduced new measures for managing benefits due to temporary incapacity for work, and aimed essentially at combating abuses and fraud, through more specific monitoring of the incapacity for work of the person concerned. In particular, the new measures taken by Royal Decree No. 1117 of 5 June 1998 and Royal Decree No. 6 of 23 June 2000, along with the Order of 18 September 1998, authorize physicians registered with the National Social Security Institute and those of the social security occupational accident and occupational diseases mutual schemes to verify the termination of the temporary incapacity for work, which will determine the termination of the entitlement to the corresponding benefit, without prejudice to the right to the medical care that the public health service will continue to supply if this is still necessary. Henceforth, the public health service is no longer solely competent to declare the termination of the temporary incapacity but shares this power with other entities which, in the Government’s view, constitutes an important means of supervising protection against temporary incapacity as well as better rationalization and effectiveness in management of the financial benefit.

The Committee notes these new measures which still do not in themselves respond to the fears expressed by the UGT, but fall within the more general framework of combating fraud and abuses.

More particularly in regard to failure by the employers to fulfil their obligations to pay sickness benefits, raised by the UGT, the Government considers that this is a sporadic and occasional occurrence and does not constitute a widespread violation of legislation. It sees proof of this in the fact that the other representative unions which receive copies of the Government’s reports have not raised the question. In this context, the Government refers to the agreement for the improvement and development of the social protection system, concluded by the Government and certain social partners in April 2001, which seeks in particular, solutions to ensure that this type of situation remains marginal. The Committee asks the Government to supply a text of this agreement and also to furnish information on the results obtained.

The Committee also recalls that, in a decision handed down on 15 June 1998 the Supreme Court declared that the system of obligations and accompanying guarantees established in respect of direct payment of the benefit for temporary incapacity according to the public social security scheme in the event of the employer’s failure to meet the obligation to pay the benefit 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 managing entity of the social security system. In this respect, the Committee notes that, according to the information in the Government’s report, in the absence of a legal provision or consolidated jurisprudence, as required by Spanish legal order for it to be of general application, the social security management entities assume direct payment of the benefit only when the failure to execute affects the period for which the enterprise must pay the benefit for temporary incapacity by delegation of the social security, that is, from the sixteenth day of incapacity or when, during the initial period of payment covered in section 131(1) of the Social Security Act, the employment is terminated. The Committee recalls that under Article 71, paragraph 3, of the Convention, the State must accept general responsibility for the due provision of the sickness benefits and shall take all measures required for this purpose. The Committee asks the Government to indicate any developments in this matter with a view to strengthening the implementation of this provision of the Convention. The Committee also attaches particular importance to the supervision effected by the labour and social security inspection service and would be grateful if the Government would continue to supply detailed information on the supervision carried out by the inspection service in regard to proper fulfilment by the employer of his obligations under section 131(1) of the LGSS, particularly on the number of inspections conducted, violations reported and penalties imposed. Please supply extracts from all relevant reports.

2. Part III (Sickness benefit), Article 18, and Part VI (Employment injury benefits), 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, in the framework of the cooperation provided in section 77 of the LGSS, the Committee asked the Government to provide a number of supplementary details and, in particular, statistics. In its reply, the Government confirms that the most recent important measures taken in this matter were introduced by Royal Decree No. 706/1997 of 16 May, the content of which was analysed by the Committee in its previous observation. Furthermore, the Government states that in the framework of voluntary collaboration, the enterprise assumes directly payment of the cash benefit for temporary incapacity of work for workers in its employment without this collaboration being subject to cession, transmission or insurance with another person or entity. The enterprise may, nevertheless, conclude contracts with other entities with a view to ensuring supervision of the benefit; in this case, furthermore, these activities may not be financed through contributions deducted by the enterprise since they must be devoted solely to the purpose of collaboration, namely, payment of the benefit. The enterprise is required to have a special accounting head covering the collaboration activities. The enterprise must communicate to the administration the necessary data for the latter to be fully aware of the measures taken in the framework of collaboration. Violation by the employer of his obligation to pay directly the cash benefits for temporary incapacity constitutes an administrative violation which can be penalized by a fine and by the temporary or definitive suspension of the right to voluntary collaboration. With regard to the workers, failure of the enterprise to fulfil its obligations entails its civil or penal responsibility according to case without the subsidiary responsibility of the social security bodies being involved. Finally, the Government considers that the agreement concluded with certain social partners for the improvement and development of the social welfare system mentioned above should enable a solution to be found for any cases of enterprises failing to fulfil their obligations.

The Committee notes this information with interest. According to the information supplied earlier by the Government, a large number of workers are concerned by the type of collaboration provided in section 77(1) of the LGSS and the Committee therefore hopes that the Government will not fail to continue to supply information and statistics on the number and results of the checks carried out by the Labour and Social Security Inspectorate and the General Social Security Controller, by indicating the number and nature of penalties imposed as well as information on the number of workers concerned and enterprises participating in the forms of voluntary collaboration provided in section 77(1), particularly subparagraphs (a) and (d), as compared with the total number of workers involved in the LGSS in regard to benefits for temporary incapacity. The Committee also asks the Government to continue to communicate information on all measures taken or contemplated in this matter with a view to improving operation of the voluntary collaboration system and, in particular, on any solutions that have been found in the framework of the agreement for improving and developing the social protection system concluded with certain social partners with a view to ensuring payment of benefits for temporary incapacity for work in the event that the system fails to function in practice.

3. Part VI (Employment injury benefit), Article 34, paragraph 2(c). In reply to the Committee’s comments, the Government recalls that legislation provides for medical care at the home of the patient under the terms of primary medical assistance, care at home for immobilized patients and patients in the terminal phase, primary emergency care at the home of the patient and oxygenotherapy at home (Royal Decree No. 63 of 1995). It adds that medical care is supplied regardless of the origin of the illness or accident, be it common or occupational, from which the patient who needs care at home is suffering. The Committee notes this information. It assumes that this medical assistance includes provision of nursing care at home free of charge in accordance with this provision of the Convention.

Article 34, paragraph 2(e). In its reply the Government first refers to information supplied earlier on the content of medical assistance provided under legislation in the event of occupational accidents and diseases and indicates that, to date, it has adopted no new measures to include specifically dental prosthetic appliances and spectacles, in accordance with this provision of the Convention. The Committee therefore hopes that in its next report the Government will be able to indicate the measures taken or envisaged to give effect in particular to Article 34, paragraph 2(e), on this point.

4. Finally, the Committee asks the Government once again to supply its comments in reply to the observations made by the UGT on 27 February 1999 concerning Part II (Medical care) of the Convention.