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

Social Security (Minimum Standards) Convention, 1952 (No. 102) - Portugal (Ratification: 1994)

The Committee has noted the information provided in the Government's first report and requests the Government to furnish additional information on the following points:

1. Part IV (Unemployment benefit), Article 23 of the Convention. The Committee notes that, in accordance with section 12 of Legislative Decree No. 79-A/89 establishing the rules governing unemployment insurance under the general social security scheme, unemployment benefit shall be paid subject to the completion of a qualifying period of at least 540 paid working days during the last 24 months. The Committee requests the Government to provide explanations as to the reasons for fixing a relatively long qualifying period providing entitlement to unemployment benefit, in view of Article 23 of the Convention, according to which the qualifying period shall not exceed the length considered necessary to preclude abuse. In this context, the Committee has also noted that, according to the information provided by the Government in its twelfth report on the application of the European Social Security Code, the qualifying periods for the allocation of unemployment benefit and social unemployment benefit in the textile and clothing industry have been reduced as part of a new programme for the development of this sector, approved in resolution No. 6/97 by the Council of Ministers. The Committee would be grateful if the Government would specify the length of the new qualifying period fixed for workers involuntarily unemployed in this industry and indicate whether similar measures have been taken or are envisaged in respect of the workers protected in other economic sectors.

2. Part VI (Employment injury benefit), Article 34, paragraph 2(d) (maintenance in hospitals, convalescent homes, sanatoria or other medical institutions), and (f) (care furnished by members of such other professions as may at any time be recognized as allied to the medical profession). The Committee would be grateful if the Government would indicate the legislative provisions guaranteeing the victims of occupational accidents or diseases the types of medical care provided for under these provisions of the Convention.

Article 36, paragraph 1 (in relation to Article 65, paragraph 10). The Committee notes that with regard to the adjustment of employment injury benefit to changes in the cost of living and in the general level of earnings, the Government refers in its report to the statistics provided on the adjustment of old-age pensions. Given that employment injury benefit is covered by systems which differ from that for old-age benefit, the Committee requests the Government to specify, in its next report, the relevant legislative provisions establishing the method of review for benefits to be paid in the case of occupational injuries, and to provide all the statistics on their adjustment requested in the report form under Title VI of Article 65 of the Convention.

Article 38 (in relation to Article 69(f)). According to Part VI, paragraph 1(a) and (b) of Act No. 2127 of 1965 establishing the rules governing occupational accidents and diseases, accidents caused intentionally or resulting from an action or omission on the part of the victim while that person was violating, without good reason, the safety rules, and accidents resulting from the serious and inexcusable misconduct of the victim, are not subject to compensation. In addition, section 12 of Order No. 642/83 approving the Regulations of the National Insurance Fund for Occupational Diseases also provides that serious and inexcusable misconduct excludes the right to compensation for occupational diseases. The Committee recalls that Article 69(f) of the Convention authorizes the suspension of benefits only in the case of the wilful misconduct of the person concerned. Given that the notions of "act or omission on the part of the victim who appears to have violated, without good reason, the safety rules" and of "serious and inexcusable misconduct" may go beyond the suspensions authorized in Article 69(f) of the Convention, the Committee requests the Government to indicate in its next report the manner in which these provisions are applied in practice, in particular by providing extracts of relevant administrative and court decisions together with statistics on the number of cases in which benefits have been refused for these reasons.

3. Part VII (Family benefit). The Committee has noted the adoption of Legislative Decree No. 133-B/97 establishing the rules governing family benefit under the general social security scheme and of its implementing regulations. Given that these texts did not relate to the period covered by the Government's first report, the Committee hopes that its next report will contain detailed information on the effect of the new legislation in respect of family benefits on the application of each of the articles of Part VII, taking into account the following points:

Article 43. Section 15 of Legislative Decree No. 133-B/97 establishing the rules governing family benefit under the general social security scheme makes the allocation of family benefit, apart from for those receiving pensions, conditional on the completion of a qualifying period of six months' registered remuneration, either on a continuous or interrupted basis, in the 12 months preceding the second month prior to application. The Committee draws the Government's attention to the fact that under Article 43 of the Convention the qualifying period thus prescribed shall not exceed three months of contribution or employment, or one year of residence. Consequently, the Committee hopes that the Government will be able to take the necessary measures to bring section 15 of the above-mentioned Legislative Decree into full conformity with the Convention in this regard.

Article 44. The Committee hopes that the Government's next report will contain all the statistics necessary to verify that the total value of benefits paid to families on the basis of the new legislation reaches the level prescribed by the Convention, in the manner required in the report form. In so doing, please take account only of benefits corresponding to the definition of the contingency provided for in Article 40 of the Convention -- i.e. those relating to dependent children cared for -- rather than to all family benefits.

4. Part X (Survivors' benefit), Article 64 (in relation to Article 69). The Committee notes that according to sections 10 and 41 of Legislative Decree No. 322/90 establishing the rules governing survivors' benefit, pensions are not paid where a spouse is recognized by the courts as being unworthy of or prohibited from inheritance. Please indicate whether, and under what circumstances, cases of the non-payment of survivors' benefit have been declared under these provisions during the period covered by the report.

5. Part XII (Equality of treatment of non-national residents), Article 68, paragraph 1 (in relation to Part II (Medical care)). In its report the Government indicates that non-national residents have the same rights as nationals in respect of health care, based on the principle of universal protection for all residents, or of the general social security scheme. The Committee notes, however, that according to Part XXV of Framework Law No. 48/90 relating to health, all Portuguese citizens, citizens of Member States of the European Union, stateless persons and foreign citizens residing in Portugal are entitled to use the national health service, subject to reciprocal conditions. In this respect, the Committee recalls that, although Article 68, paragraph 1, of the Convention, while applying the principle of equality of treatment of non-national residents, may in respect of benefits which are payable wholly or mainly out of public funds adopt special provisions (such as a longer qualifying period) where necessary, it has always considered that the requirement for reciprocal conditions does not constitute a special provision as it is defined in the Convention. Consequently, the Committee hopes that appropriate measures will be taken to ensure, in accordance with this Article of the Convention, equality of treatment without reciprocal conditions for all foreigners resident in Portugal for the purposes of the medical care provided for in Part II of the Convention. Pending the resolution of this matter, the Committee would be grateful if the Government would indicate the countries whose nationals are resident in Portugal and benefit from the reciprocal scheme for entitlement to medical care.

Article 68, paragraph 2 (in relation to Part VI (Employment injury benefit)). The Committee notes that Part III of Act No. 2127 of 1965 referred to above, as amended by Act No. 22/92, guarantees for all foreigners working in Portugal and for their families equality of treatment in respect of compensation for occupational accidents and diseases without reciprocal conditions. In this context, it requests the Government to indicate whether section 10 of Order No. 642/83, which provides for reciprocal conditions in respect of compensation for occupational diseases, has consequently been amended.

6. Part XIV (Miscellaneous provisions), Article 72, paragraph 1 (in relation to Part VI (Employment Injury Benefit)). The Committee notes that the participation of employers' organizations and beneficiaries in the administration of benefits paid in the case of occupational diseases is ensured by means of their representation in the management of the National Insurance Fund for Occupational Diseases (sections 62 and 63 of Order No. 642/83). However, since benefits for occupational accidents are paid through private insurance companies, the Committee would be grateful if the Government would indicate how the representatives of the persons protected participate in the relevant administrative duties.