Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Invalidity, Old-Age and Survivors' Benefits Convention, 1967 (No. 128) - Ecuador (Ratification: 1978)

With reference to its observation, the Committee asks the Government to supply a detailed report on the application of the Convention according to the report form adopted by the Governing Body and to include in it full information on the points mentioned below.

Part I (General provisions). Article 4(2) and (3) of the Convention, in conjunction with Articles 9(2)(a), 16(2)(a) and 22(2)(a). Coverage of small farmers. The Committee notes that the Law on Social Security of 2001 incorporates the special scheme of Social Security of Farmers (Seguro Social Campesino – SSC), which covers self-employed fishermen and rural farmers who work for their own account or for their communes and do not receive wages from a public or private employer (section 2 of the Law). The Government stated in its reply that SSC formed part of the national social security system and provided, inter alia, old-age and invalidity pensions to the insured head of family at the level of 75 per cent of the minimum wage subject to contributions to the Compulsory General Scheme. The strategic plan for the development of SSC in 2008 supplied by the Government aimed at increasing its coverage to 40 per cent of the rural population. According to the statistics provided in addition to the Government’s report of 2008 on Convention No. 130, in June 2008 SSC counted 1,012,578 affiliated members. The Committee further notes that policy objectives for the development of the SSC coverage of the contingencies of invalidity, disability, old-age and death laid down in section 133 of the Law on Social Security of 2001 include the introduction of the survivors’ benefits for widows and orphans, as foreseen by the Constitution of Ecuador; the sources of financing and the modalities of these benefits will be fixed in the General Regulations pursuant to this Law on the basis of the appropriate actuarial studies. The Committee wishes to draw the Government’s attention to the fact that, with the introduction of the survivors’ benefits, in addition to the old-age and invalidity benefits already granted by the scheme, the SSC would provide all types of benefits required by the Convention and could therefore be fully taken into account for the purpose of application of its provisions by Ecuador, including those concerning the scope of coverage of the persons protected. At present, by having recourse to Articles 9(2)(a), 16(2)(a) and 22(2)(a), Ecuador has chosen to limit the personal scope of application of the Convention to “prescribed classes of employees”, which by definition do not include farmers and self-employed fishermen. Extending coverage to these categories may enable the country to consider the broader option of applying the Convention to prescribed classes of the economically active population, which is also offered by the abovementioned Articles. In the meantime and taking into account the country’s obligation to increase the number of the persons protected as circumstances permit, the Committee would welcome receiving from the Government further information and updated statistical data on the development of the Social Security of Farmers and extension of its coverage of the rural population of Ecuador.

Part V (Standards to be complied with by periodical payments). Article 26, in conjunction with Articles 10, 17 and 23 (Level of benefits). According to section 201 of the Law on Social Security of 2001, the monthly old-age pension provided by the intergenerational solidarity pension scheme after 30 years of contributions is calculated at the rate of 50 per cent of the insured employee’s adjusted average monthly earnings in the last ten years of earnings or in the 20 best years of earnings. The invalidity pension after five years of contributions is paid at the level of 50 per cent of the same earnings basis (section 202) and the survivors of the deceased breadwinner who had at least five years of contributions receive benefits totalling 65 per cent of the same earnings basis (section 203). These percentages would seem to ensure that the benefits attain the replacement level of the previous earnings of a beneficiary determined under Article 26 of the Convention. The Committee notes however that section 181 of the Law on Social Security limits insurable earnings by the maximum of US$165 and section 204 limits the amount of the pension to the maximum of 82.5 per cent of this sum. It would therefore ask the Government to compare in its next report these maximum limits with the wage of a skilled manual male employee, bearing in mind the requirements of Article 26(3) of the Convention.

Part VI (Common provisions). Article 34 (Right of appeal). The Committee notes that sections 40–44 of the Law on Social Security 2001 establish administrative bodies to deal with complaints of the insured persons relating to cash benefits and of the employers relating to their rights and obligations. The Provincial Committee on Benefits and Controversies (Comisión Provincial de Prestaciones y Controversias) handles such complaints in the first instance and the National Committee on Appeals (la Comisión Nacional de Aplicaciones) adjudicates on complaints in the second and last instance. The Government states in its report that claimants in practice may be assisted by a professional or any other person of their choice. However, having examined the Law on Social Security, the Committee has not found any provision which would expressly guarantee the individual right of an insured person to appeal in case of refusal of benefit or complain as to its quality or quantity, as well as the right to be represented or assisted in these procedures by a qualified person of his or her choice. The Committee would therefore again like the Government to identify the exact provisions in laws, regulations or internal rules or statutes of the Ecuadorian Social Security Institute which give effect to Article 34 of the Convention, and, if such provisions do not exist, to take legal measures to effectively recognize these individual rights of insured persons in the social security schemes concerned.