Social Security (Minimum Standards) Convention, 1952 (No. 102) - Denmark (RATIFICATION: 1955)

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In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on social security, the Committee considers it appropriate to examine Conventions Nos 102 (social security, minimum standards) and 130 (medical care and sickness benefits) together.

Articles 12, 29, 32(b), 56(b), 65, 66, 67, 69, 70 of Convention No. 102 and Articles 16, 28, 29 of Convention No. 130. The Committee takes note of the information provided by the Government in its report concerning: (i) minimum duration of medical care; (ii) suspension of medical care; (iii) right to complain and appeal; (iv) period of residence for calculation of old-age benefits; (v) benefits due to temporary incapacity for work; (vi) replacement rate of invalidity benefits; (vii) determination of the reference wage; and (viii) adjustment of benefits to the cost of living.

Part III (Sickness benefit), Article 22 of Convention No. 130. Calculation of the replacement rate of benefit. The Committee notes from the Government’s report that the replacement rate of the sickness benefit is 58.4 per cent which is lower than the replacement rate of 60 per cent required by Article 22 of the Convention. In this respect, the Government indicates that the reference wage applied by the Government for the purpose of the calculation of the replacement rate is higher than the reference wage which should be determined according to Article 22(6) of the Convention. The Government points out that the replacement rate of 58.4 per cent would be higher if the reference wage was determined according to Article 22(6) of the Convention. The Government also indicates that most employees in Denmark continue to receive their salary during the period of sickness according to the collective agreements.

The Committee observes that the reference wage determined by the Government refers to all unskilled male and female employees, except for managers, regardless of the type of economic activity. The Committee recalls that Article 22 of the Convention sets out the replacement rate of sickness benefits based on the reference wage of a skilled employee. The Committee further recalls that option d) of Article 22(6) of the Convention determines the reference wage as 125 per cent of the average earnings of all the persons protected. The Committee observes that this option refers to similar parameters than those used by the Government to determine the reference wage, particularly coverage of all male and female employees regardless of the type of economic activity.

The Committee requests the Government to calculate the replacement rate of the sickness benefit based on the reference wage of a skilled employee, as provided by Article 22 of the Convention. The Committee further invites the Government to assess the possibility to apply option d) of Article 22(6) of the Convention for the determination of the reference wage. Lastly, the Committee requests the Government to provide information on the provisions of the collective agreements on the payment of wages by employers during the period of an employee’s absence due to sickness, particularly on the average duration of the payment as well as the share of employees covered by such collective agreements.

Article 26 of Convention No. 130. Minimum duration of sickness benefits. The Committee notes the Government’s indication that sickness benefits are provided for 26 weeks in total, including 4 weeks of sick pay provided by employers and 22 weeks of sickness benefits provided by the local authorities. The Government further indicates that by the end of the 26th week, the local authorities shall undertake an assessment of the beneficiary’s health condition to decide on the extension of the payment of sickness benefits. In particular, the Committee observes that the payment of sickness benefits will be extended if it is assessed that a beneficiary is able to return to work. If, as a result of that assessment, it is concluded that a beneficiary is unable to return to work due to incapacity for work, such a person will undergo a job assessment process and receive a resource allowance instead of sickness benefit.

The Committee recalls that according to Article 26 of the Convention, the payment of sickness benefits may be limited to not less than 52 weeks in each case of incapacity. The Committee therefore requests the Government to provide information on the resource allowance and other benefits which may be provided to persons who have exhausted the maximum period of the payment of the sickness benefit and are still unable to work, for a period of up to 52 weeks. In this respect, the Committee requests the Government to provide information on how the benefits provided instead of sickness benefits meet the requirements of Part III of the Convention, including the level of such benefits and qualifying conditions.

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Part VI (Employment injury benefit), Article 36(3) of the Convention. Conversion of the periodical benefit into a lump sum. The Committee notes the Government’s reference in its report to the Government’s previous indications provided under Article 36(3) of the European Code of Social Security of the Council of Europe (Code) which has the same provisions on the conversion of periodical cash benefits due to employment injury into a lump-sum payment. In particular, in its 45th report of 2018 on the application of the Code, the Government indicates that different financial support measures are available to injured persons in addition to a lump-sum payment, which is provided to persons who: (a) have a loss of earning capacity for up to 50 per cent; or (b) have a loss of earning capacity above 50 per cent but requested a lump sum for the loss of earning capacity up to 50 per cent (section 27 of the Occupational Injury Insurance Act of 2017, No. 216). In particular, the Government indicates that injured persons may be entitled to various periodical cash benefits, including benefits provided under the sickness benefits scheme or unemployment benefits scheme. The Government points out that considering the different financial support measures available to injured persons under the social security system, the rules for the provision of lump-sum payments due to employment injury under section 27 of the Occupational Injury Insurance Act of 2017, No. 216, are in line with Article 36(3) of the Convention.

The Committee recalls that Article 36(3) of the Convention allows the conversion of a periodical payment in case of permanent incapacity for work into a lump sum only: (a) where the degree of incapacity is slight; or (b) where the competent authority is satisfied that the lump sum will be properly utilized. The Committee further recalls that periodical cash benefits which may be provided to injured persons in addition to a lump sum shall meet the requirements of Part VI of the Convention (including as regards the level of benefits, duration of payment and an absence of the qualifying period) to be considered for the purpose of the application of the Convention. The Committee therefore requests the Government to take the necessary measures to ensure that the provision of a lump-sum payment instead of periodical cash benefits due to employment injury under section 27 of the Occupational Injury Insurance Act of 2017, No. 216, is in conformity with Article 36(3) of the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

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The Committee has examined the Government’s report on the application of Conventions Nos 102 and 130 received in 2016, as well as the 44th annual report on the application of the European Code of Social Security received in 2017, and the consolidated report on the application of the Code and certain ILO social security Conventions ratified by Denmark (Conventions Nos 12, 42, 102 and 130), for the period 2006–16.

Part II (Medical care), Article 12 of Convention No. 102 and Article 16 of Convention No. 130. Minimum duration of care. The Committee requests the Government to indicate whether any limits to the duration of different types of medical care are prescribed in the national legislation, particularly as regards diseases entailing prolonged care.

Article 69 of Convention No. 102, Article 28 of Convention No. 130. Suspension of benefit. The Committee notes that the Health Act assigns the responsibility for delivering health services to regions and municipalities. The Committee requests the Government to indicate the legal provisions under which municipalities and private providers may suspend or refuse provision of health services to the persons protected.

Article 70 of Convention No. 102, Article 29 of Convention No. 130. Right to complain and appeal. The Committee notes that the 44th report on the Code refers to Act No. 113 of 31 January 2017 to amend the Sickness Benefits Act, Authorization Act and Danish Act on the Right to Complain and Receive Compensation within the Health Service, which introduces a new approach to quality work in health-care services, emphasizing quality development rather than quality control. Patients who complain about a health-care service are offered a consultative dialogue with relevant health-care professionals and have the opportunity, on a permanent basis, to use an independent adviser free of charge in connection with the dialogue. The Committee requests the Government to provide information on how this new approach helps to speed up and streamline the consideration of complaints as to the quality or quantity of medical care and how the resulting decision of the administration may be appealed in court.

Part III (Sickness benefit). Calculation of the replacement level of benefit. The Committee notes, based on the statistics included in the Government’s reports, that the maximum amount of sickness benefit will surpass the level of 45 per cent of the total of the previous earnings of the standard beneficiary required by Convention No. 102, but does not appear to attain the level of at least 60 per cent established by Convention No. 130. The Committee requests the Government to provide information on the replacement rate of the sickness benefit on the basis of the weekly or monthly amounts (not annual), in accordance with Title II under Article 22 of the Report form on Convention No. 130.

Article 18 of Convention No. 102, Article 26 of Convention No. 130. Minimum duration of benefit. The Committee notes that if the employed person is absent from work due to sickness and does not receive pay during sickness, he is entitled to sickness benefit payable by the employer for a maximum period of 30 days as from the first day of sickness. Where a sickness period lasts longer than 30 days, the duty to pay benefit is normally transferred to the local authorities. An employer may also be relieved from his duty to pay benefit by entering into agreement with an employed person accepted by the local authorities, if it is certified that the employed person has a risk of periods of absence owing to a long term chronic disease. The Committee requests the Government to provide information on who, in this situation, pays sickness benefit to this person instead of the employer and under what conditions.

The Committee notes that there is a general limit to the duration of payment of sickness benefit, which is 22 weeks within a period of nine months. The Committee observes that this general limit is lower than the sickness benefit of 52 weeks provided by Article 26(1) of Convention No. 130. The Committee requests the Government to provide information on the measures envisaged to raise this limit to the 52 weeks of benefit in each case of incapacity as required by Convention No. 130.

The Committee notes that if the person reaches the limit of 22 weeks within a period of nine months, and is not able to have the benefit prolonged, but is still unable to work due to incapacity for work, the person can be offered a job assessment process with benefits payable during a process focusing on resources. The Committee requests the Government to provide information on the duration and the level of benefits paid during this process.

Part V (Old-age benefit), Article 29 of Convention No. 102. Period of residence for calculation of benefit. The Committee notes that, according to the information provided by the Government in the 44th report on the Code, Act No. 995 of 30 August 2015 stipulates that refugees who have been granted a residence permit in Denmark in accordance with sections 7 or 8 of the Aliens Act, shall not be subject to more favourable rules for calculating old-age pension. The Act reinstates the harmonization of residency for calculating old-age pension, which was introduced on 1 January 2011, and abolished by 1 January 2015. The Committee requests the Government to explain in detail the said rules for the harmonization of residency for calculating old-age pension.

Part VI (Employment injury benefit). The Committee notes that the 44th report on the Code states that a reform of the workers’ compensation system is part of the Danish Government Platform and is expected to be discussed in the Danish Parliament in 2017–18. The Committee hopes that in developing the reform proposals the Government and the Parliament will fully take into account the obligations outlined in Part VI of Convention No. 102.

Article 32(b) of Convention No. 102. Temporary incapacity for work. The Committee notes the Government’s indication in its report on Convention No. 102 that workers’ compensation in Denmark does not cover compensation for the temporary loss of earnings in connection with incapacity for work, while the report on the Code states that the rules on sickness benefit apply to persons with an injury covered by the industrial injury legislation. The Committee understands therefore that in Denmark protection against the contingency of the temporary incapacity for work in case of employment injury covered by Part VI is ensured not by the special workers’ compensation scheme but by the general sickness benefit scheme under Part III of the Convention. The Committee observes that the conditions of entitlement and the level of the general sickness benefit do not comply with the higher level of protection guaranteed by the Convention in case of employment injury (absence of the qualifying period, no limitation of the duration of benefit, higher replacement rate, among others) and requests the Government to provide detailed information on the national sickness benefit legislation and the application of Part VI of Convention No. 102.

Article 36(3) of Convention No. 102. Conversion of the periodical benefit into a lump sum. According to the consolidated report, up to a degree of earning capacity loss of 50 per cent the periodical payments must be inverted into a lump sum. For degrees of 50 per cent and above, a lump sum payment corresponding to 50 per cent may be granted on the request of the beneficiary. The competent authority does not exercise any supervision as to whether the lump sum will be properly utilized, unless the beneficiary is declared by the Court incapable of managing his own affairs. The Committee requests the Government to provide information on the measures envisaged to bring these regulations into conformity with Article 36(3) of Convention No. 102, which authorizes lump-sum payments only where the degree of incapacity is slight (less than 25 per cent), or where the competent authority is satisfied that the lump sum will be properly utilized.

Article 38 of Convention No. 102. Duration of benefit. According to the consolidated report, the monthly compensation payments cease by the end of the month when the injured person reaches the national pension age. The Committee requests the Government to provide information on the measures envisaged to continue payment of compensation for permanent incapacity throughout the contingency, which in that case means until the death of the injured person in accordance with Article 38. The Committee refers the Government to Article 69(c) of the Convention for coordination of payment of the employment injury benefit with the old-age benefit.

Part IX (Invalidity benefit), Article 56(b) of Convention No. 102. Calculation of benefit. The Committee notes that entitlement to disability pension at the full rate is subject to a period of residence equivalent to not less than four to five of the years between the 15th birthday and the date on which the pension is first payable. Where the condition for pension at the full rate is not complied with, the amount of pension payable will be assessed according to the ratio between the period of residence and four to five of the years between the 15th birthday to the date on which the pension is first payable. The fraction of the pension at the full rate thus calculated shall be reduced to the nearest number of fortieths of the pension at the full rate. The Committee understands therefore that a person who has developed a full disability at the age of 45 years having previously resided in Denmark for ten years (the qualifying period of residence allowed by Article 57(1)(a) of the Convention) after his 15th birthday will be entitled to ten twenty-fourths of the full pension. Taking into account that the resulting pension will be much below the minimum rate guaranteed by the Convention, the Committee requests the Government to provide information on the application of Article 67 with respect to the rate of the disability pension, including all deductions and supplements.

Part XI (Standards to be complied with by periodical payments), Articles 65–67 of Convention No. 102. Determination of the reference wage used for calculating the replacement level of benefits. The Committee recalls that the 42nd report on the Code indicated that male employees in “Manufacturing machinery and equipment n.e.c.” are the relevant reference group in relation to Articles 65–67 of the Code and Articles 65–67 of Convention No. 102, and the 2014 data on employment and wages of these employees would be obtained from the new Eurostat Structure of Earnings Survey (SES), Statistics on Income and Living Conditions (SILC) and Labour Force Survey (LFS) to be published in 2016. The 43rd detailed report however determined the reference wage of a skilled and unskilled manual male employee in the iron and metal industry on the basis of the data provided by the Confederation of Danish Employers for 2014, which is substantially higher than the Eurostat data and negatively affects the calculation of the replacement rate of benefits under Convention No. 102. The Committee requests the Government to determine the reference wage of the skilled and unskilled workers following the methodology laid down in Article 65(6)(b) and Article 66(4)(b) of Convention No. 102 (options 2 and 5 in the ILO Technical Note).

Adjustment of benefits to the cost of living. The Committee requests the Government to provide statistics on the adjustment of benefits for the period 2011–16 requested in the report form on Convention No. 102 under Title VI of Article 65.

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The Committee takes note of the information provided by the Government in its detailed report on the Convention received in December 2011 and in the 39th annual report on the application of the European Code of Social Security.

Part VI. Employment injury benefit. (a) The Committee notes that the report does not include detailed information required by the report form under each Article of Part VI of the Convention and does not reply to questions raised in its direct request of 2011, but makes reference to previous reports where such information and replies were also lacking. The report mentions however the Consolidation Act No. 848 of 7 September 2009 on industrial injuries insurance, according to which the Danish industrial injuries insurance scheme is fully financed by the employers through the payment of premiums to the private insurance companies (covering accidents at work) and contributions to the Labour Market Occupational Diseases Fund (covering occupational diseases). The National Board of Industrial Injuries administers the scheme and makes the decisions on entitlement to benefits. In view of the complex structure of the scheme containing public and private agencies, the Committee would like the Government to include in its next report, in addition to information requested under Part VI, detailed information on how the Danish industrial injuries insurance scheme complies with the provisions of each Article of Part XIII (Common provisions) of the Convention. Please indicate, in particular, how private companies providing insurance coverage are being supervised by the public authorities and how representatives of the persons protected participate in the management of the scheme.

(b) With regard to the insurance against accidents at work, the report states that it covers consequences of accidents or injuries of duration of up to five days. Please explain how protection is ensured against accidents which cause absence from work of more than five days.

(c) The Committee asks the Government to calculate the replacement level of the employment injury benefit under Article 65 of the Convention, paying particular attention to the observance of recommendations mentioned below.

Part XI. Standards to be complied with by periodical payments. In its previous direct request, the Committee asked the Government to explain, with reference to the corresponding provisions of Article 65 of the Convention, the methodology used for selecting the standard beneficiary as the skilled manual male employee from the iron and metal industry and for determining his reference wage (in 2010 DKK 367,044), which is used for calculating the replacement rate of the sickness, maternity and unemployment benefits. In reply, the report states that the reference wage of a skilled manual employee is calculated on the basis of the average earnings on a yearly basis by weighing together the gross annual salary for workers and employees from which deductions are made for contributions to employer pension schemes, employee’s labour market contribution etc. The Committee is obliged to point out that this method of determining the reference wage does not correspond to the options foreseen in Article 65(6) of the Convention. Indeed, if it is determined on the basis of the average earnings of all workers and employees in the country, the resulting reference wage of the skilled manual male employee should amount to not less than 125 per cent of such gross average earnings, as indicated in Article 65(6)(d) of the Convention. If, on the other hand, the skilled manual male employee is selected from the iron and metal industry, his reference wage should be determined on the basis of the statistics on the actual rates of gross wages for normal hours of work paid out in the said industry in occupations requiring skilled manual labour. Article 65(6)(a) and (b) suggest in this case using the wage of a fitter or turner in the manufacture of machinery other than electrical machinery – the industry which, according to the current employment statistics, comprises the largest number of male employees in Denmark. It should also be recalled that in its 35th report on the Code in 2008 the Government stated that the iron and metal industry was no longer the biggest employer of male workers in Denmark and suggested using new methods of determining the reference wage for the purposes of the Code, which were discussed in detail at the expert meeting in Copenhagen, 25 June 2009. The Committee would be grateful if the Government would follow the recommendations of this meeting in calculating the replacement rate of the short-term benefits in its future reports. In particular, the Government is invited to show that the maximum limit for the benefits in question complies with the requirements of Article 65(3) of the Convention and to make the calculation of the replacement rate not on a yearly but on a monthly basis, as these benefits are paid monthly.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request.

Repetition

Part IV (Unemployment benefit) of the Convention. The Committee would like the Government to continue to indicate in its future reports any changes in the national legislation and practice related to the conditions governing entitlement to and suspension of unemployment benefit.

Part VI (Employment injury benefit). With reference to its previous conclusions, the Committee would like the Government to explain in its next report the main reasons and objectives of the recent reform of the workers’ compensation scheme, highlighting in particular the role of private companies in providing insurance coverage, their supervision by the public authorities and the participation of the representatives of the persons protected in the management of the branch.

Part XI (Standards to be complied with by periodical payments). The replacement rate of the sickness, maternity and unemployment benefits is calculated in the abovementioned Government’s reports on a yearly basis by comparing the total amount of benefit to the yearly reference wage of the skilled manual male employee in the iron and metal industry selected under Article 65 of the Convention or, in case of the employment injury benefit, of an ordinary adult male labourer in the same industry selected under Article 66 of the Convention. The Committee notes, however, that for compensation purposes, sickness, maternity and unemployment benefits are calculated on a daily basis taking into account the hourly pay for which the person would have been entitled had he been working during the period of absence, subject to a maximum of DKK88.30 per hour or DKK3,267 per week fixed for the year 2005. It appears from the report that basic old-age pension and anticipatory (invalidity) pension, which are universal flat-rate benefits covering all residents and not related to the previous earnings of the beneficiary, are fixed at the rate corresponding to the above maximum of daily cash benefit in the earnings-related schemes protecting employees. This maximum, which is fixed by the Government each year, corresponds to 50 per cent of the weekly wage of the standard beneficiary selected under Article 65 of the Convention (DKK6,519). Thus, while the daily cash benefit is 100 per cent of the daily pay in case of sickness and maternity, and 90 per cent in case of unemployment, the standard beneficiary will be entitled to the maximum benefit of only 50 per cent of his daily wage. The Committee observes that in the Danish system the maximum limit for earnings-related benefits is fixed so low that it has the effect of transforming them into flat-rate schemes. It would therefore like the Government to explain in detail in its next report, with reference to the corresponding provisions of Article 65, the methodology used for selecting the standard beneficiary as the skilled manual male employee from the iron and metal industry and for determining his reference wage. The Government is also invited to show that the maximum limit for the benefits in question complies with the requirements of Article 65(3) and to make the calculation of their replacement rate not on the yearly basis, which is not the appropriate time basis for measuring daily benefits, but on a weekly or monthly basis depending on the periodicity of the benefit payments. Finally, the Committee draws the Government’s attention to the fact that the replacement level of the employment injury benefit should be calculated under Article 65 and not 66 of the Convention, inasmuch as it is also subjected to a maximum limit.

Part XIII (Common provisions). Article 69. The report states that the employment injury benefits for loss of earning capacity and for permanent injury may be reduced or withheld where the beneficiary intentionally or by unlawful conduct or negligence has provoked or to a considerable extent contributed to the occurrence of industrial injury. The Committee would like the Government to explain, on the basis of the relevant judicial or administrative decisions, how the term “negligence” is defined and how assessment is being made of the extent to which such negligent behaviour might have contributed to the occurrence of industrial injury. In this connection it draws the Government’s attention to items (e) and (f) of Article 69 of the Convention, which authorize suspension of the benefit only where the contingency has been caused by a criminal offence or wilful misconduct of the person concerned.

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The Committee takes note of the information provided by the Government in its detailed report on the Convention and in the 33rd annual report on the application of the European Code of Social Security.

Part IV (Unemployment benefit) of the Convention. According to the rules on the readiness and availability of jobseekers to take up offered employment laid down in the Unemployment Insurance Act, as amended by Act No. 1035 of 17 December 2002, the unemployed person shall be available for “reasonable” work from the first day of unemployment (previously after three months of unemployment); the term “reasonable” meaning work which may be outside the occupational field of the unemployed person. Pursuant to section 63 of the Unemployment Insurance Act, benefit shall not be paid to persons who without adequate reason refuse to take up “reasonable employment” offered to them. In its previous direct request, the Committee observed that the notion of “reasonable employment” is at odds with the concept of “suitable employment” used in the Convention, which ensures that during the minimum period of protection unemployed persons shall be offered jobs corresponding to their skills, qualifications, acquired experience and length of service in the former occupation – the criteria normally used in assessing the suitability of employment – and that their benefit could not be suspended for refusal to accept a job unsuitable in this respect (Article 20 of the Convention in relation to Article 69(h)).

In reply, the Government indicated in its report that out of the 24,000 placements of jobseekers made by the Public Employment Service (PES) in 2005 a sanction was imposed upon 352 persons for failure to turn up for an interview or for refusal to take a job offer. There were 1,200 placements of persons who had been unemployed for less than 13 weeks and a sanction was imposed upon only six of them. In order to assess the extent to which the unemployed persons refuse job offers due to the job not being “suitable”, the National Directorate of Labour, which deals with complaints and supervision in relation to the Unemployment Insurance Act, has manually examined all 352 cases. The examination showed that in all cases, except one, the unemployed persons were referred to a job within their occupational field. In the single case where an unemployed person was referred to a job outside his occupational field, he was offered a job in a related field in which he recently had received training. These statistics proved that in practice very few, if any, unemployed persons are affected negatively by the rules on availability for reasonable work from the first day of unemployment. In applying these rules, the PES follows the principles of the labour market reform stated in the agreement “More people into employment” of 2003 between the Danish Government and a broad majority of parties in the Danish Parliament, which required the administration of the rules on availability to be applied in such a way that the skills and qualifications of the unemployed were used in the most efficient and appropriate manner. According to the Government, this principle became binding on the PES following the adoption of administrative orders of 1 January and 1 July 2003.

The Committee thanks the Government for detailed explanations of the changes in the rules on availability, which should be seen in the context of increasing challenges facing Denmark due to globalization, outsourcing of jobs and the demographical development. It understands that in applying these rules to concrete cases of unemployment, the PES has often to strike a difficult balance between taking into account previous experience and qualifications of the unemployed person on the one side and the actual state of the labour market on the other side, where the demand for such qualifications may be an uncertain variable. In this respect, the Committee has always been vigilant to ensure that, whatever the discretionary power of the State to judge the employability and the behaviour of the unemployed persons in the current labour market situation, they were treated with all due respect for their acquired professional and social status and any sanctions imposed on them were kept inside the limits prescribed by Article 69 of the Convention. The Committee would therefore like the Government to continue to indicate in its future reports any changes in the national legislation and practice related to the conditions governing entitlement to and suspension of unemployment benefit.

Part VI (Employment injury benefit). The Committee would like the Government to explain in its next report the main reasons and objectives of the recent reform of the workers’ compensation scheme, highlighting in particular the role of private companies in providing insurance coverage, their supervision by the public authorities and the participation of the representatives of the persons protected in the management of the branch.

Part XI (Standards to be complied with by periodical payments). The replacement rate of the sickness, maternity and unemployment benefits is calculated in the abovementioned Government’s reports on a yearly basis by comparing the total amount of benefit to the yearly reference wage of the skilled manual male employee in the iron and metal industry selected under Article 65 of the Convention or, in case of the employment injury benefit, of an ordinary adult male labourer in the same industry selected under Article 66 of the Convention. The Committee notes, however, that for compensation purposes, sickness, maternity and unemployment benefits are calculated on a daily basis taking into account the hourly pay for which the person would have been entitled had he been working during the period of absence, subject to a maximum of DKK88.30 per hour or DKK3,267 per week fixed for the year 2005. It appears from the report that basic old-age pension and anticipatory (invalidity) pension, which are universal flat-rate benefits covering all residents and not related to the previous earnings of the beneficiary, are fixed at the rate corresponding to the above maximum of daily cash benefit in the earnings-related schemes protecting employees. This maximum, which is fixed by the Government each year, corresponds to 50 per cent of the weekly wage of the standard beneficiary selected under Article 65 of the Convention (DKK6,519). Thus, while the daily cash benefit is 100 per cent of the daily pay in case of sickness and maternity, and 90 per cent in case of unemployment, the standard beneficiary will be entitled to the maximum benefit of only 50 per cent of his daily wage. The Committee observes that in the Danish system the maximum limit for earnings-related benefits is fixed so low that it has the effect of transforming them into flat-rate schemes. It would therefore like the Government to explain in detail in its next report, with reference to the corresponding provisions of Article 65, the methodology used for selecting the standard beneficiary as the skilled manual male employee from the iron and metal industry and for determining his reference wage. The Government is also invited to show that the maximum limit for the benefits in question complies with the requirements of Article 65(3) and to make the calculation of their replacement rate not on the yearly basis, which is not the appropriate time basis for measuring daily benefits, but on a weekly or monthly basis depending on the periodicity of the benefit payments. Finally, the Committee draws the Government’s attention to the fact that the replacement level of the employment injury benefit should be calculated under Article 65 and not 66 of the Convention, inasmuch as it is also subjected to a maximum limit.

Part XIII (Common provisions). Article 69. (a) According to Act No. 327 of 18 May 2005, payment of social pension and other social benefits, as referred to in the Act, shall be suspended in case of evasion of criminal prosecution or execution of a sentence. The Act applies to persons in custody, persons wanted by the police and in the case of a ruling for custody (in absentia). If the person concerned is not found guilty, the amount retained shall be repaid. Taking into account that suspension of benefits in the abovementioned cases may go beyond the grounds listed in Article 69 of the Convention, the Committee would once again like the Government to provide in its next report detailed explanations concerning the social benefits affected by the Act which fall under the ambit of the Convention and the manner in which the new legislation is applied in practice by the administrative and judicial authorities. Please also provide statistics on the number of cases of suspension of benefits under the Act, together with its translation into English, if possible.

(b) The report states that the employment injury benefits for loss of earning capacity and for permanent injury may be reduced or withheld where the beneficiary intentionally or by unlawful conduct or negligence has provoked or to a considerable extent contributed to the occurrence of industrial injury. The Committee would like the Government to explain, on the basis of the relevant judicial or administrative decisions, how the term “negligence” is defined and how assessment is being made of the extent to which such negligent behaviour might have contributed to the occurrence of industrial injury. In this connection it draws the Government’s attention to items (e) and (f) of Article 69 of the Convention, which authorize suspension of the benefit only where the contingency has been caused by a criminal offence or wilful misconduct of the person concerned.

(c) The report states that if the survivor of the victim of employment injury opposes a post-mortem, the claim for compensation may lapse. Please explain the reasons for this provision, which is not foreseen among the grounds for the suspension of benefits listed in Article 69 of the Convention.

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Part IV of the Convention. Unemployment benefit. The Committee notes that, according to the rules on the readiness and availability of jobseekers to take up offered employment laid down in the Unemployment Insurance Act, as amended by the Act No. 1035 of 17 December 2002, unemployed persons shall be available for reasonable work from the first day of unemployment (previously after three months of unemployment); the term "reasonable" meaning work which may be outside the occupational field of the unemployed person. Pursuant to section 63 of the Unemployment Insurance Act, benefit shall not be paid to persons who without adequate reasons refuse to take up "reasonable employment" offered to them. In its XVII-1 Conclusions concerning the application by Denmark of Article 12(3) of the European Social Charter, the European Committee of Social Rights "considers the new rules on availability to be very stringent, virtually compelling unemployed persons on pain of loss of benefits to accept a job regardless of the occupational field from the first day of unemployment. The Committee holds that one of the aims of an unemployment benefit system is to offer unemployed persons adequate protection during at least an initial period of unemployment from the obligation to take up any job irrespective of occupational field, precisely with a view to giving them the opportunity of finding a job which is suitable taking into account their individual preferences, skills and qualifications. However desirable it may be for the labour market authorities to channel surplus workforce into areas with labour shortages, unemployed persons should be treated with due respect for their professional, social and family status and not as ordinary labourers, physically and mentally fit for any job".

The Committee shares the preoccupations expressed by the European Committee of Social Rights. It points out that Part IV of the Convention is based on the concept of "suitable employment", which ensures that at least during the minimum period of protection of 13 weeks provided for in Article 24 of the Convention unemployed persons shall be offered jobs with due regard, inter alia, to their skills, qualifications, acquired experience and length of service in the former occupation - the criteria normally used in assessing the suitability of employment - and that in no case covered by Article 20 (in relation to Article 69(h) of the Convention) their benefit could be suspended for refusal to accept a job unsuitable in this respect. The Committee would like the Government to indicate in its next report how effect is given to these provisions of the Convention and to supply a translation into English, if available, of the following legislation:

n  the latest consolidated version of the Unemployment Insurance Act;

n  Notification (No. 1194 of 2002) to amend the Notification respecting availability (No. 1353 of 2000) (Lovtidende A, 2002-12-19, Vol. 177, No. 1194, pp. 8488-8490);

n  Notification (No. 516 of 2003) respecting availability (Lovtidende A, 2003-06-27, Vol. 93, No. 516, pp. 3279-3284); and

n  Notification (No. 731 of 2003) respecting availability for persons applying for or benefiting from daily cash benefit or starting assistance exclusively due to unemployment (Lovtidende A, 2003-08-29, Vol. 120, No. 731, pp. 4779-4783).

In addition, to assess the practical effect of the new rules on availability of jobseekers, the Government is asked to explain the practice followed and to supply a copy of the internal guidelines of the employment service in making offers of "reasonable employment" to the jobseekers, as well as in determining whether the person concerned has a reasonable ground for refusing such offer, indicating in particular to what extent account is being taken of the person’s acquired professional and social status, or his personal and family situation in case the job offered implied a change of residence. Please also supply the statistical information on the number of cases in which unemployment benefit was suspended due to refusal to accept the job offered for the whole period since the entry into force of the new rules in 2002.

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The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes, from the Government’s twenty-fourth report on the Code, that a new structure for occupational injury insurance has been decided upon, according to which, for insurance purposes, occupational diseases are to be covered separately by a private non-profit-making organization to be established, the Employers’ Occupational Injury Insurance, which would be funded by the employers via a statutory contribution. It would like the Government to supply in its next report full particulars on the impact of this measure on the application of each Article of Part VI (Employment injury benefit) of the Convention, together with the text of the relevant legislative provisions.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

With reference to its previous comments, the Committee notes the information provided by the Government in its report on the Convention, as well as in the annual reports on the European Code of Social Security, concerning the application of Articles 36 and 38 of the Convention.

Furthermore, the Committee notes, from the Government’s twenty-fourth report on the Code, that a new structure for occupational injury insurance has been decided upon, according to which, for insurance purposes, occupational diseases are to be covered separately by a private non-profit-making organization to be established, the Employers’ Occupational Injury Insurance, which would be funded by the employers via a statutory contribution. It would like the Government to supply in its next report full particulars on the impact of this measure on the application of each Article of Part VI (Employment injury benefit) of the Convention, together with the text of the relevant legislative provisions.

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With reference to its previous comments, the Committee notes the information provided by the Government in its report on the Convention, as well as in the annual reports on the European Code of Social Security, concerning the application of Articles 36 and 38 of the Convention.

Furthermore, the Committee notes, from the Government's twenty-fourth report on the Code, that a new structure for occupational injury insurance has been decided upon, according to which, for insurance purposes, occupational diseases are to be covered separately by a private non-profit-making organization to be established, the Employers' Occupational Injury Insurance, which would be funded by the employers via a statutory contribution. It would like the Government to supply in its next report full particulars on the impact of this measure on the application of each Article of Part VI (Employment injury benefit) of the Convention, together with the text of the relevant legislative provisions.

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Part VI (Employment benefit)

1. Article 36, paragraph 3, of the Convention. The Committee notes that under section 43 of the new Act, No. 390 of 20 May 1992, on insurance against the consequences of industrial injuries, the periodical benefits granted under the provisions of section 32 of the Act in the event of a loss of earning capacity of less than 50 per cent shall, as a rule, and without the consent of the beneficiary, be converted into a lump sum. In addition, in the event of a loss of earning capacity of 50 per cent or more, part of the benefit (equivalent to 50 per cent of the loss of earning capacity) may, at the request of the beneficiary, be converted into a lump sum. Lastly, at the request of the surviving spouse, the benefit due under section 36 of the Act may also be converted into a lump sum.

The Committee recalls that under Article 36, paragraph 3, of the Convention, periodical payments may be commuted for a lump sum: (a) where the degree of incapacity is slight; (b) or where the competent authority is satisfied that the lump sum will be properly utilized. The Committee therefore asks the Government to indicate whether, and under which legal provisions, regulations or administrative rules, the competent authorities, in cases other than those in which the degree of incapacity is slight, only undertake the conversion of the periodical payment into a lump sum when they have reason to believe that the resulting lump sum will be properly utilized. The Committee also asks the Government to indicate whether the regulations to be adopted under section 43(2) of Act No. 390 of 1992 contain provisions in this respect.

2. Article 38 (in conjunction with Article 32(c) and (d) and Article 36). The Committee notes that, in the same way as the previous legislation, section 36(2) of Act No. 390 of 1992 fixes the maximum period for the payment of benefit for the death of the breadwinner to the surviving spouse at ten years whereas, in accordance with Article 38 of the Convention, the benefit shall be granted throughout the contingency. The Committee recalls in this connection that in its seventh report on the application of the European Code of Social Security the Government indicated that the possibility of extending the period of ten years was automatically examined and could be granted on the grounds of a series of factors such as age, obligation to maintain dependants and the financial condition of the persons concerned. The Committee requests the Government to confirm that this practice is still in force.

(b) Section 32(7) and section 36(4) of Act No. 390 of 1992 provide, in the same way as the previous legislation, for the conversion of the benefit for loss of earning capacity and for the loss of the family breadwinner, into a lump sum equivalent to double the annual benefit from the time that the beneficiary reaches the age of 67 years.

In view of the fact that the information available to the Committee on this point is relatively old, the Committee requests the Government to indicate, on the basis of the statistical data required under Articles 65 or 66 of the Convention (which alone are admissible for the application of Part VI), whether the amount of the old-age pension which is substituted for the benefit of total loss of earning capacity and the survivors' benefit (granted under Act No. 390 of 1992) continues to be at least equivalent to the percentage set out by the Convention for the standard beneficiary in the corresponding contingencies (50 and 40 per cent respectively), irrespective of any qualifying periods or conditions relating to means.

The Committee reserves the option to examine Order No. 673 of 9 October 1991 on the duty of the unemployed to be available for work in greater detail as soon as it has available the translation of the text which is currently being undertaken.

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Part VI (Employment injury benefit), Article 38 (in conjunction with Article 69(e) and (f) of the Convention). The Committee notes the adoption of Act No. 390 of 20 May 1992 on insurance against the consequences of industrial injuries which, according to the information supplied by the Government, replaces as of 1 January 1993 the Act on Industrial Injuries, No. 450 of 25 June 1987, in its consolidated version, as subsequently amended. The Committee notes with satisfaction that, under section 29 of Act No. 390 of 20 May 1992, benefit for loss of earning capacity or for permanent incapacity may henceforth only be reduced or entirely suspended if the injured person has intentionally, or by an unlawful act or omission, caused the injury or contributed to it in an important degree, which permits better application of the above provisions of the Convention.

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1. Part VI (Employment injury benefit), Article 38, in conjunction with Article 69(e) and (f) of the Convention. In its previous comments, the Committee raised the question of the conformity with the above provisions of the Convention, of section 14, subsection 1, of the Industrial Injury Insurance Act of 1978, under which benefits for loss of earning capacity or for permanent disability may be reduced or withheld if the person concerned has caused the employment injury or substantially contributed to it by an act or omission involving a manifest risk of injury, whereas the above provisions of the Convention authorise the suspension of these benefits only where the contingency has been caused by a crime or an offence, or by wilful misconduct of the person concerned.

The Government indicates in its report that, during the period covered, the National Social Security Office has only once made use of the possibility of reducing benefits under the above-mentioned provision of Act No. 79 of 1978. It adds that a Bill to replace the Industrial Injuries Insurance Act has been prepared by the committee set up by the Ministry of Social Affairs, and that this Bill brings the national legislation into conformity with the relevant provisions of the Convention and of the European Code of Social Security. The Committee notes this information with interest. It also notes with interest the statement made by the Danish expert at the 36th Session of the Social Security Steering Committee (Lisbon, 23-26 October 1990) in the context of the supervision procedure of the European Code of Social Security, to the effect that a proposal to bring the legislation on employment injury insurance into full conformity with Article 68 of the Code had been submitted to Parliament.

The Committee therefore hopes that it will be possible for section 14, subsection 1, of Act No. 79 of 1978 to be brought formally into conformity with the Convention in the near future. It also hopes that any new legislation adopted on compensation for employment injury will take full account of all the provisions of Part VI of the Convention and the corresponding provisions of Parts XI to XIII.

2. The Committee again asks the Government to provide, if possible in English or French, the provisions mentioned by the Government in its sixteenth report on the application of the European Code of Social Security concerning (a) the obligation for unemployed persons to be at the disposal of the employment services, (b) "deliberate" unemployment.

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Part IV (Unemployment benefit), Article 24, of the Convention (in conjunction with Article 69(i)). In reply to the Committee's previous comments, the Government, after providing certain explanations on the operation and administration of the unemployment insurance scheme, whose funds are private associations of employees or of self-employed workers, indicates that all regulations adopted on unemployment insurance have been discussed with the representatives of the employers and the workers, whose opinions are reflected in the wording of the text. With regard more particularly to section 61, subsection 3, of Act No. 114 of 14 March 1970 respecting placement and unemployment insurance which provides that benefits shall be suspended for all members of an unemployment insurance fund or section thereof if 65 per cent or more of the members are considered to be involved in a labour dispute, the Government recalls that this provision no longer applies, by virtue of the amendment made by Act No. 229 of 6 June 1979, except in cases where the labour dispute is not incompatible with a collective agreement. It indicates that this provision should be regarded in the light of the fact that, in such cases, members can influence the dispute through their trade unions and that the outcome of disputes generally also concerns members that are not directly involved in it; moreover, the trade unions can also pay benefits. Furthermore, the Committee has provided the text of the implementing regulations of above-mentioned section 61, adopted by Order No. 296 of 14 June 1985 of the Ministry of Labour after consultation with the Confederation of Danish Employers and the Federation of Danish Trade Unions which, according to the report, subscribe to it fully. The Government therefore considers that the Danish regulations on the suspension of unemployment benefit in the event of industrial dispute are not inconsistent with the Convention.

The Committee notes this information with interest. It recalls that in its previous reports the Government stated that the suspension of unemployment benefit pursuant to section 61, subsection 3, mentioned above, was to be limited only to workers involved in an industrial dispute or whose working conditions may be influenced by the outcome of such a dispute. It therefore expresses the hope that the Government will have no difficulty in supplementing, in a future revision of the legislation, section 61, subsection 3, of Act No. 114 of 24 March 1970 respecting placement and unemployment insurance as amended, so as to expressly provide that the suspension of unemployment benefit envisaged in this provision only applies where the person concerned has lost his employment as a direct result of a work stoppage due to a trade dispute, as provided for in Article 69(i) of the Convention. It asks the Government to provide information on any further developments in this respect in its next reports.

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1. Part VI (Employment Injury Benefit), Article 38 (in conjunction with Article 69(e) and (f)), of the Convention.

(a) The Committee notes that the Government has not provided a report for the second consecutive year. It takes, however, note of the information supplied by the Government in its sixteenth report on the application of the European Code of Social Security and notes, in particular, that a ministerial committee has proposed to amend subsection 1 of section 14 of the Industrial Injury Insurance Act of 1978 so as to bring it formally into line with the provisions of the Code and the Convention. Under section 14, subsection 1, of the Act of 1978, benefits for loss of earning capacity or for permanent disability may be reduced or withheld if the person concerned has caused the employment injury or substantially contributed to it by any act or omission involving a manifest risk of injury, whereas the Convention authorises the suspension of these benefits only where the contingency has been caused by a crime or an offence, or by the wilful misconduct of the person concerned. The Committee therefore hopes that it will be possible for section 14, subsection 1, of the Act of 1978 to be amended in the near future.

(b) Furthermore, the Committee hopes that the Government will be able to provide information in its future reports, on the implementation of the general reform of the legislation on employment injury insurance, previously referred to by the Government in information supplied to the Council of Europe.

2. Moreover, the Committee reserves the possibility of making a more detailed examination of the amendments to the legislation respecting the various branches of the social security scheme, referred to previously by the Government in information submitted to the Council of Europe, as soon as an English or French version of the relevant texts is available.

3. The Committee also asks the Government to provide, if possible in English or French, the new provisions mentioned by the Government in its sixteenth report on the application of the European Code of Social Security, referring to (a) the obligation for unemployed persons to be at the disposal of the employment services, (b) "deliberate" unemployment, and (c) the method used to calculate old-age pensions and anticipatory pensions.

4. Lastly, the Committee hopes that the Government will not fail to submit a report for examination at its next session and that the report will contain information on all the measures taken as well as statistics set out in the manner required by the report form on this Convention.

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The Committee notes with regret that for the second consecutive year the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

Part IV (Unemployment benefit), Article 24 of the Convention (in conjunction with Article 69(i)). In its earlier comments, the Committee noted that section 61, paragraph 3, of Act No. 114 of 24 March 1970 respecting placement and unemployment insurance (which provides that benefits shall be suspended for all members of an unemployment insurance fund or section thereof if 65 per cent or more of the members are considered to be involved in a labour dispute) no longer applied, by virtue of the amendment made by Act No. 229 of 6 June 1979, except in cases where the labour dispute is not incompatible with a collective agreement The Committee consequently requested the Government to confirm whether the suspension of unemployment benefits was henceforth limited to workers involved in the dispute or whose conditions of employment might be influenced by its outcome. In its report, the Government indicates that this is indeed the case. The Committee takes note of this statement with interest; it hopes that the Government will therefore have no difficulties in supplementing, in a future revision of the legislation, section 61, paragraph 3, of Act No. 114 of 24 March 1970, respecting placement and unemployment insurance as amended, so as to expressly provide that the suspension of unemployment benefit envisaged in this provision only applies where the person concerned has lost his employment as a direct result of a stoppage of work due to a trade dispute, as provided for in this provision of the Convention.

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The Committee hopes that the Government will be able to keep the Office informed of any progress made.