Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

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

1. Article 36 of the Convention. (a) In its previous comments, the Committee asked the Government to provide more information about the application in practice of the provisions of the General Social Security Act (LGSS) concerning total or partial permanent incapacity for work. In its reply the Government points out that recognition of partial or total incapacity does not imply, in the terms of the law, a reduction of 50 per cent in the worker’s usual working day. The Government recalls that the concept of permanent incapacity is defined in section 137 of the LGSS, subsection 3 of which treats as partial any incapacity which causes a reduction of at least 33 per cent in the worker’s normal capacity to work in his or her usual occupation but does not prevent performance of the basic tasks. In such cases, workers are entitled to a cash benefit consisting of an amount of capital fully compatible with maintaining the workers in their jobs, since they retain sufficient capacity to carry out the fundamental tasks of the occupation they hold. In the event of total incapacity the worker is entitled to a benefit in the form of periodical payments; according to section 137(4) of the above Act, total incapacity means incapacity to perform all the tasks or the basic tasks involved in the usual occupation, but this does not imply that the worker cannot perform some other work in or outside the enterprise, whatever the length of the working day.

The Committee notes this information. It asks the Government to provide additional details of the manner in which the abovementioned provisions of the legislation enable effect to be given to Article 36, paragraphs 2 and 3, of the Convention, which states that in case of partial permanent loss of earning capacity, or in case of corresponding loss of faculty 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, the periodical payments being convertible into a lump sum in accordance with paragraph 3: (a) where the degree of incapacity is slight; and (b) where the competent authority is satisfied that the lump sum will be properly utilized. The Committee also asks the Government to provide copies of any administrative or judicial decisions that illustrate with specific examples the manner in which effect is given in practice to the abovementioned provisions of the legislation.

(b) In its previous comments the Committee noted that section 8 of Act No. 24/1997 of 15 July has replaced the definitions of the various categories of invalidity by specifying that the qualification for the various degrees of permanent incapacity shall be determined on the basis of the percentage of the reduction in capacity for work. The Committee understands that these regulations have not yet been adopted, which means that the former provisions still apply. It asks the Government to indicate in its next report any developments in this respect.

2. Part XI (Calculation of benefits). (a) The Committee notes from the statistical information provided by the Government that sickness benefit (Part III) and employment injury benefit (Part VI) attained the level prescribed by the Convention.

(b) With regard to unemployment benefit (Part IV), the Committee notes that the Government avails itself of Article 66 of the Convention. The Committee recalls in this connection that, according to this provision, periodical payments may not be less than a specified amount which, in respect of the contingency in question for the standard beneficiary indicated in the Schedule to the Convention, must be at least equal to the percentage indicated therein of the total of the wage of an ordinary adult male labourer. This method of calculation is used in particular for schemes that pay benefits fixed at a uniform rate, but it can also be used where the benefits, as is the case of unemployment benefits in Spain, although set on the basis of the beneficiaries’ former earnings, comprise a guaranteed minimum. Should the Government continue to avail itself of Article 66 in calculating unemployment benefits, the Committee hopes that in future it will not fail to provide statistics not only on the earnings of an ordinary adult male labourer chosen in accordance with paragraphs 4 or 5 of the above Article, but also on the minimum unemployment benefit paid to a standard beneficiary (a man with a wife and two children).