Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Part VI of the Convention. Employment injury benefit. The Committee notes the Government’s reports on the application of Conventions Nos 17 and 102, as well as the communications made in August 2011 by the General Confederation of Labour of Portugal (CGTP) and the General Workers’ Union (UGT). The Committee also notes the adoption of Act No. 98/2009 of 4 September 2009 regulating the compensation of industrial accidents and occupational diseases (pursuant to section 284 of the Labour Code, Act No. 7/2009 of 12 February 2009).

Article 35. Rehabilitation and reintegration. The CGTP considers that the new regime established by Act No. 98/2009 continues to consider workers as mere economic or productive entities, disregarding all harm not directly linked to the loss of earnings or working capacity, such as psychological harm, to the detriment of human dignity and decent work. It points out however that, for the first time, the scheme contains provisions regulating occupational rehabilitation and reintegration of victims of employment injuries. While this feature is considered as a positive measure, the social partners were not sufficiently consulted by the Government in the preparation of the implementing regulations that are currently being drafted. The Committee also notes the UGT’s indication that the National Council for Safety and Health in the Workplace, authority responsible for promoting consultation and the sharing of responsibilities between the State and the social partners, had not met in 2010 but is expected to meet in 2011. The Committee wishes to point out in this respect that Part VI of the Convention ensures comprehensive protection of the victims of employment injuries by placing at their disposal appropriate medical care services, vocational rehabilitation services and employment and placement services and providing for their close interaction with a view, first of all, to maintaining, restoring or improving the health of the persons concerned and their ability to work (Article 34(4)) and, secondly, to the re-establishment of persons with disabilities in suitable work (Article 35(1)). The approach taken by the Convention is therefore directed at restoring also the social and professional status of the victim and is not limited to the mere compensation of lost earnings. The Committee hopes that the employment injury branch in Portugal will be developed along these lines in close consultation with the representatives of the persons protected. It would like the Government to supply in its next report detailed information on how the measures currently developed to make operational the provisions of Act No. 98/2009 regarding the establishment of occupational rehabilitation and reintegration services have been implemented, how these services are coordinated with the medical rehabilitation institutions and what role is played in this process by the organizations of the persons protected. The Committee would also like to be informed of the related activities of the National Council for Safety and Health in the Workplace.

Article 36. Payment of compensation in the form of a lump sum. Section 75 of Act No. 98/2009 provides for the compulsory redemption of the pension in the case of permanent partial incapacity of less than 30 per cent or in the case of any annual pension, provided, in both cases, the amount does not exceed six times the indexing reference of social support IAS (indexante dos apoios sociais). According to the UGT, such redemption is not in the pensioners’ interests as it does not fulfil the purpose of the benefit to provide supplementary income by compensating existing incapacity. On the other hand, this system has obvious advantages for insurance companies which enjoy greater certainty when payouts are made in the form of lump sums only. The Committee has to observe in this respect that the possibility of converting pensions into lump sums was included in Article 36 of the Convention in the interest of the workers and not of the insurance companies. This is the reason why such conversion is permitted only where the competent authority is satisfied that the lump sum will be properly utilized. The Committee would like the Government to verify how private insurance companies comply with these requirements of the Convention in applying section 75 of Act No. 98/2009 and whether they have recourse to redemption of pension rights in situations where loss of capacity exceeds 30 per cent.

Part XI. Standards to be complied with by periodical payments. Article 65(10). Review of the rates of employment injury pensions. Referring to its observation, the Committee notes that Decree-Law No. 47/2010 of 10 May suspended the mechanisms established by Decree-Law No. 185/2007 of 10 May aimed at reviewing the rates of periodical payments. However, contrary to other social security pensions, employment injury pensions were updated in 2011 at 1.2 per cent by effect of Order No. 115/2011 of 24 March. Notwithstanding, the CGTP considers that the purchasing power of employment injury pensions is not guaranteed given that their mean value is already very low. Moreover, in successive years there has been an unjustified delay in uprating the pensions since the update is only published in May of the year in which it is applicable instead of December of the previous year, with seriously prejudicial consequences. The Government concurs with the CGTP in that delays in the publication of uprated pension rates should be avoided, but stresses that even when the publication of the update is delayed, the beneficiaries are paid the updated rate retroactively to January of the same year. It adds that, although the adoption of Decree-Law No. 185/2007, of 10 May, instituted an autonomous uprate mechanism, in practice, the uprating of employment injury pensions continues to take into account the consumer price index and the growth of GDP, as in the case of other social security pensions. The Committee takes note of this information. Stressing that employment injury pensions constitute the only source of income for many persons and would not fulfil their purpose if their purchasing power was not adequately maintained and adjusted in time, the Committee hopes that the Government will in future issue the reviewed rates of employment injury pensions in December as for other social security pensions.

Part XIII (Common provisions), Article 69. Suspension of employment injury benefits. According to sections 14, 15, 16 and 17 of Act No. 98/2009, employers’ liability to compensate occupational accidents would not be engaged, inter alia, in case of gross negligence, force majeure or where the accident is due to another worker or a third person. In its report on the application of Convention No. 17, the Government indicates that these cases of exclusion of employers’ liability are naturally applicable to the insurance carriers, given that the insurance contracted by employers for cases of occupational accidents aims at transferring to the insurer the obligations of the employer. The Committee observes that Article 69 of the Convention would not allow employment injury benefits to be refused in a number of situations envisaged by Act No. 98/2009 depending on how it is implemented by regulations and applied in practice through judicial and administrative decisions. The Committee therefore hopes that, in drafting the implementing regulations of the Act, the Government will take into account that the established grounds for the suspension of benefits may go beyond what is permitted by the Convention and are not usually found in the legislation of other countries which have ratified the Convention. In the meantime, the Government is asked to inform the competent administrative and judicial authorities that sections 14–17 of Act No. 98/2009 should be applied in the light of the international obligations assumed by Portugal under Convention No. 102 and the European Code of Social Security (ECSS).

Application in practice and enforcement. The UGT points out that insurers are reported to be slow in paying compensation, especially in the case of incapacity, and that subcontractors in such sectors as civil engineering, where the highest rates of workplace accidents are recorded, do not conclude the required insurance policies, making it more difficult, if not impossible, to compensate workers. In reply, the Government reiterates that the national legislation on employment injuries applies to all workers, including those employed through subcontracting arrangements, and stresses that the means of labour inspection in terms of human resources have been strengthened during the period 2009–10. The Committee hopes that these measures have helped to improve compliance with national legislation and would appreciate it if, to illustrate their effectiveness, the Government would supply statistics on the number of inspections carried out and of sanctions imposed, as well as relevant extracts from inspection reports. In particular, the Government is asked to assess whether the nature and scale of applicable sanctions is such as to produce a sufficiently deterrent effect on contraventions and whether increased sanctions would not help ensure greater compliance with the law. Please also explain the ongoing restructuring of the statistical system covering workplace accidents and professional diseases referred to by the UGT.