Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Mexico

Workmen's Compensation (Accidents) Convention, 1925 (No. 17) (Ratification: 1934)
Social Security (Minimum Standards) Convention, 1952 (No. 102) (Ratification: 1961)
Equality of Treatment (Social Security) Convention, 1962 (No. 118) (Ratification: 1978)

In order to provide a comprehensive view of the issues related to the application of ratified Conventions on social security, the Committee considers it appropriate to examine Conventions Nos 17 (workers’ compensation, accidents), 102 (social security, minimum standards) and 118 (equality of treatment, social security) together .

Article 2 of Convention No. 17. Coverage of workers for occupational accidents. (i) Coverage of apprentices. The Committee notes the information provided by the Government in response to its previous comment, in which the Committee requested the Government to explain how persons working in an enterprise or institution within the framework of vocational training were protected, in law and in practice, in the event of an employment accident, in accordance with the Convention.

The Committee notes the Government’s indication in its report that the Federal Labour Act provides for a legal status similar to that of apprenticeship, called “recruitment for initial training”, through which workers acquire the knowledge or skills needed to perform the activity for which they may be recruited. The maximum duration of initial training is three months, with the possibility of extension to six months in higher posts, and a written employment contract must be issued to ensure the worker’s social security coverage. The Committee notes that the Act also provides for an additional trial period of 30 to 80 days, enabling the worker to benefit from social security coverage during that period. Finally, the Committee notes that the Political Constitution of the United States of Mexico provides, in Article 123(A), that employers shall pay the compensation arising from employment accidents and occupational diseases of workers, irrespective of the occupational category of the workers. The Committee takes due note of this information.

(ii) Coverage of certain workers in the public sector for employment accidents. In its previous comments, the Committee requested the Government to provide statistical data on the number of public sector workers who are not covered by employment accident insurance, and to take the measures necessary to include these categories of workers in the compulsory social security system, including in the event of employment accidents. In this regard, the Committee takes note of the Government’s reply, indicating that in the first quarter of 2016, out of almost 5 million public sector workers, 670,688 persons, equivalent to 13.6 per cent of workers, did not have access to social security. The Committee recalls that Article 2 of the Convention provides that the laws and regulations as to workers’ compensation for industrial accidents shall apply to workers, employees and apprentices employed by any enterprise, undertaking or establishment of whatsoever nature, whether public or private. The Committee therefore requests the Government to take the necessary measures to ensure compensation for all victims of industrial accidents covered by the Convention, or their dependants, in conformity with the Convention. The Committee also requests the Government to provide information on any measure taken or envisaged in this regard.

Article 5 of Convention No. 17. Employment accident compensation paid in the form of a lump sum. In its previous comment the Committee noted that under section 58(III)(3) of the Social Insurance Act (LSS) of 1995, when the rate of permanent partial incapacity is between 25 and 50 per cent, an insured person may choose between the payment of either a pension or a lump sum, and requested the Government to take the necessary measures to comply with Article 5 of the Convention. The Committee notes the Government’s response, confirming that the payment of a lump sum in lieu of a pension is not in compliance with the substantive principle of the protection of insured persons set out in the Political Constitution of the United States of Mexico. In practice, the beneficiary might not put aside sums for habitual medical services, nor foresee the extent of his or her expenses, thus placing the objective of the compensation in jeopardy.

In view of the above, and observing the absence of sufficient guarantees for the competent authority to be satisfied that the lump sum be properly utilized, the Committee considers that the condition set out in Article 5 of Convention No. 17 for the compensation to be paid in the form of a lump sum instead of a periodical payment is not met. The Committee therefore requests the Government to take the necessary measures to give effect to this provision of the Convention, and to provide information on the measures taken or envisaged in this regard.

Article 8 of Convention No. 17. Procedure for reviewing the degree of incapacity. The Committee notes the information provided by the Government on the provisions on reviewing the degree of incapacity after a period of two years contained in section 60 of the LSS.

Article 10 of Convention No. 17. Normal wear and tear of artificial limbs and surgical appliances. In its previous comments, the Committee requested the Government to indicate the manner in which the right of victims of occupational accidents to the renewal of artificial limbs and surgical appliances following normal wear and tear was implemented in practice. The Committee notes the Government’s indication that the LSS provides for the supply of artificial limbs and surgical appliances, and that the medical and administrative policies and activities that the personnel of the Mexican Institute of Social Security (IMSS) must apply are set out in the Procedure for the provision or repair of artificial limbs, surgical appliances and functional aids to insured patients in the physical medicine and rehabilitation services and units of the IMSS (2680-A03-002). The Committee also observes that section 61 of the Act on the ISSSTE of 2007 envisages the provision in kind of prosthetic and orthopaedic appliances. The Committee requests the Government to indicate the laws or regulations that provide for the right to the normal renewal of artificial limbs and surgical appliances for workers affiliated to the ISSSTE and for other workers protected by the Convention.

Article 11 of Convention No. 17. Guarantees in the event of the insolvency of the insurer. In its previous comments, the Committee requested the Government to indicate how the payment of compensation for occupational accidents is guaranteed in the event of the insolvency of the insurer, despite preventive measures; whether mechanisms have been established to protect workers’ claims in the event of the insolvency or dissolution of insurers; and to what extent and in what manner the State could intervene to take the place of insurers to compensate for such losses.

The Committee notes that according to the Government, pursuant to sections 5(I) and (XIIIbis) and 56 of the Retirement Savings Systems Act (LSAR) of 1996, the National Commission for the Retirement Savings System is responsible for taking all the necessary measures to protect workers’ interests. It further notes that in accordance with sections 26 and 27(II), in conjunction with section 2(VI) of the Insurance and Financial Institutions Act (LISF) of 2013, insurance institutions or mutual societies may provide the insurance deriving from social security laws. The Committee also notes that the IMSS may enforce payment of social security contributions through the administrative enforcement procedure, while intervention by other bodies responsible for providing the pensions required by the IMSS means that the legal basis for life annuities and survivors’ benefits is set out in the Social Security Act, the LSAR and the LISF. The Committee further notes that, in accordance with the LISF, insurance institutions are required to constitute reserves and special funds for each of the social security schemes, and that the trustees of the trusts include the Federal Government. The Committee requests the Government to indicate whether, insofar as investment companies administered by insurers are concerned special funds and reserves exist to guarantee the solvency of the insurance institutions whether the State assumes responsibility for the compensation of workers in the event of insolvency of insurers, and to indicate the relevant provisions of the national legislation that so provide.

Part III (Sickness benefit), Article 18 of Convention No. 102. Limitation of the period of provision of sickness benefit. In its previous comments, the Committee noted the Government’s indication that, under section 37 of the Act on the ISSSTE, sickness benefits are paid for a period ranging from 30 to 120 days, depending on the seniority of the worker concerned. Recalling that pursuant to the Convention, the benefit shall be granted throughout the contingency, while authorizing the period during which the benefit is paid be limited to 26 weeks in each case of sickness, the Committee requested the Government to indicate the measures taken or envisaged to ensure compliance with this requirement of the Convention.

In this regard, the Committee notes that according to section 37 of the Act, the financial aid may continue for up to 78 weeks (52 weeks initially, and 26 weeks subsequently). This section 37 also states that workers with under one year of service may be granted leave of up to 30 days; those with between one to five years of service, up to 60 days; those who have between six and ten years of service, up to 90 days; and those who have more than ten years of service, up to 120 days, of which half are paid in full, with the second half at 50 per cent. If, at the expiry of the leave, the worker remains incapacitated for work, he or she shall be granted unpaid leave for the duration of the incapacity, for up to 52 weeks from its onset and, during the period of unpaid leave, the Institute shall pay the worker the cash equivalent of 50 per cent of the basic wage he or she was receiving at the moment of the incapacity, extended by 26 weeks if the incapacity continues. Taking into account the average number of benefits provided, the Committee requests the Government to specify whether the maximum sickness subsidy of 78 weeks’ duration is guaranteed after the expiry of the sick leave for all the above groups of workers affiliated to the ISSSTE, irrespective of their years of service, as well as to workers with less than one year of service.

Part V (Old age benefit), Article 29(2)(a) of Convention No. 102. Reduced pension after 15 years of contribution or employment. The Committee notes the Government’s indication, in response to the Committee’s request for information regarding the right to a reduced old-age pension after 15 years of contribution or employment, that following the reform of the LSS of 16 December 2020: (i) the 1,250 weekly contributions required for entitlement to an old-age benefit has been reduced to 1000 weekly contributions; (ii) sections 154 and 170 of the LSS, as amended, provide for a qualifying period of 1000 weekly contributions for entitlement to the old-age benefits branch, and to the guaranteed pension, approximately corresponding to 20 years of contributions: (iii) transitional section 4 of the Decree reforming the LSS provides for a transitional qualifying period of 750 weeks in 2021, corresponding to 15 years, which will be increased by 25 weeks annually so as to reach the 1000 weeks provided in section 170 in 2031.

The Committee also notes that under the ISSSTE pensions scheme (section 80 of the Act on the ISSSTE of 2007), it is possible to obtain an old-age pension having contributed for under 15 years, provided that there are sufficient resources attained in the individual account for a pension 30 per cent higher than the amount of the corresponding guaranteed pension. However, the Committee observes that the number of years necessary for the attaining the required level of resources to have a right to a pension may vary for different persons, and that the law does not guarantee the right to a reduced pension to all persons protected who have completed 15 years of contribution or employment, as required by Article 29(2) of the Convention. The Committee however notes that transitional section 10(I)(c) of the Act on the ISSSTE of 2007 provides for the possibility of obtaining an old-age pension after ten years of contributions.

The Committee also takes note of the measures indicated by the Government to reduce the number of weeks of contribution required to obtain a right to a reduced pension by the insured persons under the IMSS pension scheme with a view to apply Article 29(2) of the Convention.

The Committee requests the Government to specify whether both the ISSSTE and the IMSS pension schemes following the transitional period 2021-2022, as envisaged in the reform Decree of 16 December 2020, will guarantee a reduced old-age benefit for all affiliated workers who have completed a qualifying period of 15 years of contribution or employment. The Committee also requests the Government to provide the statistical information to demonstrate the application of Article 29 of the Convention.

Part XIII (Common provisions), Articles 71(3) and 72(2). General responsibility of the State for the due provision of benefits and for the proper administration of social security institutions and services. The Committee notes that, in response to its request to provide an actuarial evaluation of the various pension and health service schemes, the Government indicates that the ISSSTE produces annually the Financial and Actuarial Report (IFA) and the Financial and Actuarial Valuation (VFA). The Committee further notes the references to the editions for recent years provided by the Government. In addition, Government indicates Decision No. 15.1368.2019 approving the ISSSTE’s Institutional Programme 2019-2024, which provides, inter alia, for an analysis of the current state of the Institute, including an assessment of the problems, objectives and priorities. The Committee requests the Government to report the action taken for the implementation of the ISSSTE Institutional Programme 2019-2024, in light of the provisions of Articles 71(3) and 72(2) of the Convention.

Article 5, in conjunction with Article 10 of Convention No. 118. Payment of long-term benefits abroad. Taking note of the information provided by the Government in response to its previous comments, the Committee once again requests the Government to provide information on the benefits provided to its own nationals and to refugees and stateless persons in the event of residence in a country with which no bilateral agreement has been concluded.