Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19) - Colombia (Ratification: 1933)

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comments: Direct requests C.12, C.17, C.18 and C.19; direct requests C.24 and C.25

The Committee notes the observations provided by the Single Confederation of Workers of Colombia (CUT), the General Confederation of Labour (CGT) and the Confederation of Workers of Colombia (CTC) on the application of Conventions Nos 12, 17, 18 and 19, dated 31 August 2022, which were communicated with the Government’s report. The Committee requests the Government to provide its comments in this regard.

The Committee also notes the observations of the International Organisation of Employers (IOE) and the National Employers Association of Colombia (ANDI), dated 31 August 2022, communicated with the Government’s report.

In order to provide a comprehensive view of the issues relating to the application of ratified social security Conventions, the Committee considers it appropriate to examine Conventions Nos 12, 17, 18, 19, 24 and 25 together in a single comment.

Article 1, Conventions Nos 12, 17, 18, 24 and 25. Representation made under article 24 of the ILO Constitution. Application of the Conventions in practice. Progressive extension of the numbers of persons covered. The Committee notes that, at its 342nd Session (June 2021), the Governing Body found receivable the representation made by the CUT, CGT and CTC under article 24 of the ILO Constitution alleging non-compliance by the Government of Colombia with the Maternity Protection Convention, 1919 (No. 3), the Workmen’s Compensation (Agriculture) Convention, 1921 (No. 12), the Workmen’s Compensation (Accidents) Convention, 1925 (No. 17), the Workmen’s Compensation (Occupational Diseases) Convention, 1925 (No. 18), the Sickness Insurance (Industry) Convention, 1927 (No. 24), the Sickness Insurance (Agriculture) Convention, 1927 (No. 25), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The Committee observes that the allegations contained in the representation refer to the coverage of protected persons and the guarantee of social security benefits in relation to Conventions Nos 3, 12, 17, 18, 24 and 25. In accordance with its usual practice, the Committee has decided to suspend its examination of matters related to the subjects referred to until the Governing Body adopts its report on the representation.

Article 5 of Convention No. 17. Compensation in the form of a lump sum. The Committee notes the information provided by the Government on guarantees of stability of employment and the obligation of employers to provide rehabilitation measures. The Committee also notes that the legislation provides for the payment of a higher-level compensation benefit in the event of permanent partial incapacity. In this regard, the Committee observes that the Government has not indicated the measures adopted with a view to guaranteeing the proper utilization of the lump sum received in such circumstances. The Committee wishes to recall that Article 5 of the Convention provides that the compensation payable in the event of permanent incapacity or death may as an exception be wholly or partially paid in a lump sum, if the competent authority is satisfied that it will be properly utilized. In this context, the Committee once again requests the Government to indicate the measures adopted so that the competent authorities ensure the proper utilization of the lump sum benefit, in accordance with Article 5 of the Convention.

Article 11 of Convention No. 17.Guarantees of the payment of benefits to workers in the event of the insolvency of the employer or the insurer, and in cases of the failure to register workers. The Committee notes the information provided by the Government in its report that occupational risk administrators are required to take out reinsurance coverage, and that the Guarantee Fund for Financial Institutions (FOGAFIN) is responsible for the payment of pensions in the event of the insolvency of the pension administrator. The Committee further notes that, in the event of the insolvency of enterprises, Act No. 1116 of 2006 grants preference to labour credits, as a result of which workers in enterprises under compulsory liquidation are assisted by the law, on an equal footing, to benefit from the distribution of the active assets during liquidation. With reference to the failure to register workers, the Committee notes that, in the case of workers who are not registered under the General Labour Risks Scheme (SGRL), the State does not guarantee the payment of employment injury benefits, and workers have to have recourse to the ordinary labour courts to make their claims against the responsible employer. In this regard, the Committee notes the observations of the CUT, CGT and CTC indicating that court action takes years to be completed and is costly. The Committee recalls the Government that Article 11 of Convention No. 17 provides that Member States shall make such provision as is deemed most suitable for ensuring in all circumstances the payment of compensation to workers who suffer injury and to their dependants. In this context, the Committee requests the Government to indicate the manner in which the payment of compensation is guaranteed in the case of workers who are not registered with the SGRL, over and above the possibility for them to take action through the ordinary courts. The Committee also requests the Government to provide information on the court rulings handed down recognizing the payment of such compensation.

Article 2 of Convention No. 18. Recognition of occupational diseases. The Committee notes the indication that the regulations on recognition on first application through administrative decisions have been under revision since 4 March 2022 by the Ministry of Finance and Public Credit, which is seeking to reduce to 140 days the procedure for the determination and recognition of loss of capacity for work in all cases. The Committee further notes the Government’s indication that work is being undertaken on a draft text to add Part 5 of Book 3 to Decree No. 780 of 2016, regulating the health and social protection sector, which establishes the procedure for determining the origin of the disease or injury, the degree of invalidity and the date of the recognition and review of the invalidity. In light of the above, the Committee requests the Government to provide information on: (i) progress in the adoption of the regulations referred to above, with a view to the simplification of the process of the recognition of occupational diseases upon first application, and the reduction in the timeframe for their recognition; and (ii) the number of occupational diseases that have been reported and recognized, and the average period of time between their recording and their recognition.

Application in practice of Convention No. 19. The Committee notes the information provided by the Government on the adoption of Decree No. 117 of 2020 establishing a procedure to regularize the status of migrants with a view to reducing informal work and allowing the access to work with insurance coverage of Venezuelan citizens in an irregular migration situation. The Committee also notes Decision No. 1178 of 2021 and Decision No. 572 of 2022 of the Ministry of Health and Social Protection, adopting the temporary protection permit (PPT) as a valid identity document for Venezuelan migrants, with which they can register with the General Social Security System and the General Occupational Risks Scheme, through which they benefit from relevant protection and benefits for employment injuries. The Committee notes the observations of the CUT, CGT and CTC which indicate a lack of the necessary labour inspection to ensure compliance by employers with their obligations under labour law, as workers of Venezuelan nationality are subject to unfair treatment as a result of their vulnerable situation. In this regard, the Committee requests the Government to indicate whether the labour inspection services have reported irregularities in the payment of employment injury compensation to migrant workers.

Article 4(1) of Conventions Nos 24 and 25. Access to medical care. The Committee notes the information provided by the Government on the supervisory measures adopted by the National Health Supervisory Office in relation to health promotion bodies (EPS) and health service providers (IPS) to ensure that they comply with their obligations. The Committee also notes the statistical data, which shows that the number of complaints relating to access to medical care has diminished.

Article 4(2) of Conventions Nos 24 and 25. Sharing in the cost of medical care. The Committee notes the information provided by the Government that the cost share by beneficiaries in Colombia is 15.1 per cent, and that the share of the cost of health services paid by households represents 1.7 per cent of the total cost. The Committee recalls that, while Article 4(2) of the Convention provides that the insured person may be required to pay such part of the cost of medical care as may be prescribed by national laws or regulations, the principle of the provision of care free-of-charge is also established. In this context, the Committee requests the Government to provide information on the public financial assistance measures or policies that exist with a view to preventing hardship for insured persons, especially in cases which may require multiple consultations and complex or long-term medical treatment.

Article 6(1) of Conventions Nos 24 and 25. Non-profit and profit-making health insurance institutions. The Committee notes the information provided on the National Health Supervisory Office in relation to the adoption of measures with a view to the removal of the approval of institutions that do not guarantee the provision of health services to their members, including the partial revocation of the authorization to operate and precautionary measures. However, the Committee notes that the Government has not provided information on the controls carried out of user services by national, district and municipal social security councils in the field of health care. In this context, the Committee once again requests the Government to provide information on the supervisory activities of national, district and municipal social security health councils to monitor user services.

Article 6(2) of Conventions Nos 24 and 25. Participation of insured persons in management. The Committee notes the information provided by the Government on user alliances and associations, the role of which is to represent users in relation to health promotion bodies (EPS) and health service providers (IPS). The Committee further notes External Circular No. 008 of 2018 of the National Health Supervisory Office, which indicates that Benefit Plan Administrators (EAPB) and health service providers (IPS) shall take the necessary action to promote and strengthen the exercise of social participation in accordance with the laws and regulations in force.

Article 9 of Convention No. 24 and Article 8 of Convention No. 25. Right of appeal. The Committee notes the Government’s indication that, within the context of the Social Security System, there exist bodies, time limits and procedures regulated by Decree No. 1072 of 26 May 2015 and Legislative Decree No. 19 of 2012 on the right of appeal in relation to the recognition and granting of benefits for injury and diseases. The Committee notes the procedures described in relation to the recognition authority, the Regional Injury Recognition Board and the National Injury Recognition Board. It also notes the indication that, in addition to the administrative bodies referred to above, persons who are affected may take action through judicial bodies.

Application of Convention No. 24 in practice. Payment of health insurance. The Committee notes the information on the proceedings undertaken by the Supervisory Body delegated by the jurisdictional and conciliation authorities for the resolution of disputes that arose between users and providers in the health care system during the period between August 2018 and July 2022, which does not refer specifically to any progress in the action taken in relation to the employees of the International Aviation Company. The Committee recalls that the Government indicated in previous reports that the Ministry of Labour was undertaking an investigation and that a round table had been established under the leadership of the Deputy Minister for Industrial Relations and Inspection with a view to reaching an agreement. The Committee once again requests the Government to provide specific information on any progress achieved and the possibility of concluding this case.

Conclusions and recommendation of the Standards Review Mechanism. The Committee recalls the recommendations of the Tripartite Working Group of the Standards Review Mechanism, on the basis of which the Governing Body decided that Member States for which Conventions Nos 17, 18, 24 and 25 are in force should be encouraged to ratify the Employment Injury Benefits Convention [Schedule I amended in 1980], 1964 (No. 121), the Medical Care and Sickness Benefits Convention, 1969 (No. 130), and the Social Security (Minimum Standards) Convention, 1952 (No. 102). The Committee encourages the Government to give effect to the decision adopted by the Government Body at its 328th Session (October–November 2016) and to consider the ratification of the most up-to-date social security instruments.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on Workmen’s Compensation, the Committee considers it appropriate to examine Conventions Nos 12 (agriculture), 17 (accidents), 18 (occupational diseases) and 19 (equality of treatment) together.

The Committee notes the observations of the General Confederation of Labour (CGT) on the application of Conventions Nos 12 and 19, received in 2017, and the observations of the Confederation of Workers of Colombia (CTC) and the Single Confederation of Workers of Colombia (CUT), on the application of Conventions Nos 17 and 19, received in 2017.

Article 1 of Convention No. 12. Application of the Convention in practice. Progressive extension of coverage. In its previous comment, the Committee requested the Government to indicate the specific measures adopted to strengthen and extend the coverage of the General Occupational Risks System (SGRL) to agricultural workers. The Committee notes the Government’s reply in its report, in which it indicates that the strengthening and extension of SGRL coverage in the agricultural sector is continuing. The Committee notes that the average number of people insured by the SGRL is approximately 10.1 million, and that in May 2017 there were 372,309 insured persons in the agricultural, livestock, hunting and forestry sector. The Committee also notes the Government’s indication that the General Agreement for the Termination of the Conflict and the Construction of a Stable and Lasting Peace of 2016 laid the foundations for the Comprehensive Rural Reform and action to reduce poverty and inequality to secure the welfare of the rural population. The Committee also notes the allegations of the CTC and the CUT that the agricultural sector has the highest accident rate, and that crops such as sugar cane and palm oil have higher accident rates than the sector as a whole. The Committee also notes that the CGT, while emphasizing the importance of the signing of the Pact for Employment Formalization in the Agricultural and Livestock Sector in 2014, indicates that there is a high level of informality in the sector. The Committee trusts that the implementation of the General Agreement of 2016 and the Pact of 2014 will enable the continued pursuit of the extension of effective occupational accident coverage to agricultural workers and requests the Government to indicate any developments in this regard. The Committee also requests the Government to indicate any other measures envisaged or adopted to extend in practice the laws and regulations on occupational accident compensation to all agricultural wage earners and to give full effect to this Article of the Convention. Lastly, the Committee requests the Government to provide updated statistical data on the number of agricultural workers registered with the SGRL.

Article 1, in conjunction with Article 11 of Convention No. 17. Obligation of the State to guarantee the payment of benefits to workers whose employers have not taken out occupational accident insurance and payment of the allowance in the event of the insolvency of the insurer or employer. In its previous comment, the Committee requested the Government to clarify whether the victim of an occupational accident who is not registered with the SGRL would be entitled to reimbursement of his/her medical expenses and would receive compensation from occupational risk insurers (ARLs). The Committee also requested the Government to indicate the legal provisions that guarantee to victims of an occupational accident or disease the provision of the necessary medical care in the event of the insolvency of the ARL. Lastly, with regard to the insolvency of the employer, the Committee requested the Government to indicate the measures adopted or envisaged to guarantee the rights established by the Convention in the case of the insolvency of employers who are not insured through the SGRL. With reference to the first point, the Committee notes the Government’s indication that the occupational risk insurer to which an occupational accident claim is submitted is wholly liable for the benefits arising out of the accident and its sequelae, irrespective of whether or not the worker is registered with the insurer. Regarding the case of the insolvency of the ARL, the Government indicates that Decree No. 1295 of 1994 provides that the Financial Institutions Guarantee Fund (FOGAFIN) shall guarantee the payment of pensions in the event of loss of assets or the suspension of payments by the occupational risk insurer. Regarding medical care, it is provided by the General Comprehensive Safety and Health System in the case of persons who are not protected for the various reasons described. The Committee also notes the allegations by the CTC and CUT of the lack of protection against the insolvency of the insurer in the event of a loss of capacity for work of less than 50 per cent and in the case of workers whose employers are not insured through the SGRL. In this regard, the Committee notes the Government’s indication that the regulations in force provide for mechanisms for the constitution of reserve funds by ARLs. Concerning workers whose employers are not covered by the SGRL, in the event of the insolvency of the employer, the Committee notes the Government’s indication that the employer is responsible for registering workers and paying contributions to protect against contingencies in the event of occupational accidents or diseases. The State monitors social security registration, and to this end it has adopted Decision No. 1111 of 2017 on minimum standards of occupational safety and health management (now repealed by the new Decision No. 0312 of 2019). The Committee requests the Government to indicate the manner in which it is ensured that compensation is paid to victims of occupational accidents in the case of a loss of capacity for work of less than 50 per cent in the event of the insolvency of the ARL, and of the insolvency of employers not insured by the SGRL.

Article 5 of Convention No. 17. Compensation in the form of a lump sum. In its previous comments, the Committee expressed the hope that the Government would introduce appropriate procedures to strengthen the protection of victims of occupational accidents and diseases against the misuse of lump sum compensation, as provided for in Article 5 of the Convention. The Committee notes the observations of the CTC and the CUT alleging once again that, in the event of an occupational accident or disease resulting in a loss of capacity for work of between 20 and 50 per cent, workers are no longer granted pensions, but receive compensation in the form of a lump sum. The Committee notes the confirmation by the Government that the law establishes the provision of periodical payments only in the case of invalidity and survivors’ pensions for general or occupational injury granted for an incapacity for work of more than 50 per cent, and that the Office’s advice would be welcome to examine the possibility of providing compensation for permanent partial incapacity in the form of periodical payments, without prejudice to the right currently held by workers to the indexed lump sum. The Committee requests the Government to indicate the manner in which the competent authorities ensure the proper utilization of indexed lump sums. The Committee recalls that the Government may avail itself of the technical assistance of the Office to strengthen the measures to ensure the proper utilization of the indexed lump sum, or to examine the possibility of once again establishing periodical payments for workers victims of occupational accidents with a permanent partial incapacity exceeding a certain level. The Committee requests the Government to indicate any developments in this regard.

Article 2 of Convention No. 18. Recognition of occupational diseases. In its previous comments, the Committee requested the Government to respond to the observations of the trade union confederations and to provide information on the manner in which a disease is treated during the first 540 days that precede its classification as an occupational disease, and to indicate the average time for its recognition as such. The Committee also requested the Government to carry out a detailed analysis of the manner in which the national list of occupational diseases complies with the Schedule annexed to the Convention. Regarding the first point, the Committee notes the Government’s indication that Decree No. 1072 of 2015 provides that, where 30 days have elapsed from the end of the comprehensive rehabilitation process and the disease has still not been recognized on first application, in no event may the recognition exceed 540 days following the date of the accident or the diagnosis of the disease, in which case the worker shall have the right to appeal directly to the invalidity recognition board. The Government also indicates that during this period the cash benefits for temporary incapacity and permanent partial incapacity are set by Act No. 776 of 2002. Regarding the second point, the Committee notes the Government’s indication that Decree No. 1477 of 2014 is based on the legal presumption of the occupational nature of the diseases listed in its Schedule in accordance with section 202 of the Substantive Labour Code, and that the list of activities and industries contained in the Schedule of occupational diseases is not exhaustive. Finally, the Committee notes the Government’s indication regarding a draft decree to regulate the process for the recognition of occupational diseases on first application that must be followed by health promotion bodies, ARLs, insurance companies and pension funds. The Committee requests the Government to provide information on the progress achieved in strengthening the legal framework for the recognition of occupational diseases on first application by health promotion agencies, ARLs and other relevant bodies, and on any measures that simplify the recognition of the occupational origin of the occupational diseases listed in the Convention, thereby giving it full effect.

Article 1(1) of Convention No. 19, and the application of the Convention in practice. The Committee notes the Government’s indication that any foreign national who enters the labour market with a contract is entitled to the social benefits provided by the SGRL. The Committee notes the allegations of the CTC and the CUT that the Government has not provided data on the application of the Convention in practice, and their indication that, although under the law there is no difference of treatment of foreign workers for the purpose of the compensation of occupational accidents, in practice many unskilled migrant workers are recruited informally, so that they are not guaranteed registration with the SGRL. The CGT indicates that among foreign workers, irregular workers without a work permit are exposed to the absence of protection, and refers in particular to the situation of Venezuelan migrant workers in Colombia. The Committee requests the Government to provide information, if existing statistics so allow, on the approximate number of foreign workers in the country and on their occupation and nationality. The Committee also requests the Government to provide information on the number and nature of occupational accidents recorded among foreign workers, and on the compensation for occupational accidents provided to workers who are nationals of other member States that have ratified the Convention, and to their dependants.

Lastly, the Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group (SRM tripartite working group), the Governing Body has decided that member States for which Conventions Nos 17 and 18 are in force should be encouraged to ratify the more recent Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), and accept Part VI (see GB.328/LILS/2/1). The Committee therefore encourages the Government to follow up the Governing Body’s decision at its 328th Session (October–November 2016) approving the recommendations of the SRM tripartite working group and to consider ratifying Convention No. 121 or Convention No. 102 (accepting Part VI), as the most up-to-date instruments in this area.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the information sent by the Government in its report responding to the Committee’s previous comments. It asks the Government to provide further information on the following points.

Article 1 of the Convention. 1. Persons residing abroad. In its previous comments, the Committee invited the Government to state whether, and if so how, victims of industrial accidents or their dependants are provided with cash benefits (prestaciones económicas) in the event of residence abroad. In its report, the Government indicates that for compensation of occupational risks, the national legislation applies as a rule the principle of territoriality while maintaining a distinction depending on whether or not the Colombian national intends to settle abroad permanently. In such cases, a distinction must be made between entitlement to medical benefits and entitlement to cash benefits. According to the Government’s report, a Colombian national established abroad on a permanent basis would lose the entitlement to medical benefit but would at the same time keep the entitlement to cash benefits (prestaciones económicas), regardless of whether the location (Colombia or abroad) of the accident is known.

The Committee takes due note of this information. In so far as the applicable regulations (Ministry of Labour and Social Security Decree No. 1295 of 1994) apply to all workers regardless of their nationality, as the Committee understands matters foreign nationals from countries that are parties to the Convention (and their dependants) who reside abroad are entitled to recognition and payment of cash benefits (prestaciones económicas) under the same conditions as Colombian workers in the event of industrial accident. It would be grateful if the Government would specify whether this is actually the case.

2. Persons abroad temporarily or briefly. According to the Government’s report, when Colombian nationals affiliated to the general occupational accident compensation scheme (SGRP) are abroad for the purpose of carrying on an occupational activity and suffer an industrial accident, the Occupational Accident Insurance Fund (occupational risk management bodies – ARP) must provide emergency medical care and ensure their transfer to Colombia. The Committee is asked to confirm that foreign workers from other countries that are parties to this Convention (and their dependants) have these same rights as Colombian nationals in such circumstances.

3. The dependants of a worker deceased following an industrial accident. The Committee notes that according to the Government, the family of a worker who has died following an employment accident abroad is entitled to all the economic benefits (survivors’ pension) provided by the SGRP pursuant to Decree No. 1295 of 1994. It requests the Government to indicate in its next report whether, as the Committee understands it, the cash benefits guaranteed by this Decree are paid abroad when the victim’s dependants (Colombian or foreign wife) reside outside Colombia.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the adoption of Act No. 100 of 23 December 1993 to establish a comprehensive social security system, and Decree No. 1295 of 22 June 1994 on the organization and administration of the general system of occupational risks. The Government indicates in this regard that the benefits provided for by Decree No. 1295 in the event of occupational injury are granted to national workers and foreign workers on the same terms. The Committee would be grateful if the Government would indicate in its next report whether, and in what manner, the cash benefits guaranteed by this Decree are paid abroad where injured persons transfer their residence abroad or where the injured person’s dependants reside abroad.