Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Social Security (Minimum Standards) Convention, 1952 (No. 102) - Spain (Ratification: 1988)

With reference to its observation and the comments on the application of the Convention made by the General Union of Workers, the Committee wishes to point out the following:

1. Part VI of the Convention (Employment injury benefit). (a) Article 36, paragraph 2. The Committee requested the Government to indicate whether workers who are the victims of employment injury and whose permanent incapacity is less than 100 per cent and greater than 33 per cent are entitled to cash benefits in the form of a periodical payment, in accordance with this provision of the Convention. The Government states in reply that the workers concerned, for whom the permanent incapacity ranges between 33 and 66 per cent, receive a monthly pension equivalent to 55 per cent of their real wages, in addition to various supplements and bonuses. It adds that this pension is increased by 20 per cent of the above wage for beneficiaries who have reached the age of 55 years and who are considered to encounter difficulties in finding employment (in a different activity to the one which they normally exercised) due to an inadequate level of training or the prevailing social or employment situation at their place of residence.

The General Union of Workers states in this respect that the pension provided in the event of permanent incapacity which prevents the worker from exercising his usual occupation is the only social security benefit for which a minimum amount is set only for beneficiaries who have reached the age of 65 years. The above trade union organization considers that this is a grave injustice, particularly for incapacitated workers who do not receive other income or benefits. It adds that there are cases in which the amount of the above invalidity pension is clearly insufficient and is not even equivalent to 50 per cent of the rate set out by the Convention, particularly since for a number of years the adjustment of pensions has been lower than the inflation rate.

The Committee notes the comments made by the above trade union organization, and the Government's observations on this subject. It requests the latter to indicate all the measures which have been taken or are envisaged to respond to the concerns expressed by the General Union of Workers on this point. The Committee recalls, however, that under the terms of the Convention, in the case of partial loss of earning capacity (that is less than 100 per cent, as in the case of beneficiaries in question) the benefit shall be a periodical payment representing a suitable proportion of that specified for total loss of earning capacity or corresponding loss of faculty. It is therefore only in the latter case that the rate set out by the Convention is 50 per cent.

(b) Article 38 (in relation with article 69). The Committee notes the Government's reply to its previous request concerning certain cases of the suspension of the widow's pension provided for by section 11 of the Order of 13 February 1967. The Committee also notes the comments made by the General Union of Workers on this subject and it notes with interest, in the Government's reply and the comments of the above trade union organization, that cases of the loss of parental authority on the grounds set out in sections 169 and 171 of the Civil Code do not affect the application of the Convention. It also notes with interest that the above section 11, which provides for the suspension of the widow's pension in the event of dishonourable or immoral conduct by her, is no longer applicable by virtue of Article 18 of the Spanish Constitution of 1978. The Committee also notes that the various brochures and guides published by the National Social Security Institute for insured persons do not mention, among the grounds for suspending benefits, dishonourable or immoral conduct. The Committee hopes that it will be possible, in a forthcoming revision of the legislation, to formally repeal the above provision of the Order of 1967.

2. Part III (Sickness benefit), Article 18; Part VI (Employment injury benefit), Article 38 (in relation with Article 69(f)). In its previous comments, the Committee noted that, by virtue of section 130(b) of the General Social Security Act of 30 May 1974, benefits for transitional incapacity (temporary incapacity) for work can be refused, withdrawn or suspended if the incapacity has been caused or prolonged due to the "rash conduct" of the beneficiary. The Committee requested the Government to indicate the manner in which this provision is applied in practice, in view of the fact that, by virtue of Article 69(f) of the Convention, the suspension of benefits is only authorized where the contingency has been caused by the wilful misconduct of the person concerned. In its reply, the Government states that the above provision of the Act of 1974 is no longer applied by the administration of the social security scheme due to the fact that, in practice, it is difficult to prove that the incapacity has been caused or prolonged due to rash conduct, or simply the imprudent conduct of the insured person. The Committee notes this statement with interest and, also noting the comments made by the General Union of Workers on this subject, hopes that it will be possible to formally repeal the provision of section 130(b) of the General Social Security Act in order to ensure the full application of the Convention on this point.