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

Social Security (Minimum Standards) Convention, 1952 (No. 102) - Peru (Ratification: 1961)

The Committee notes the information supplied by the Government in its report, and the discussion held in June 2002 in the Committee on the Application of Standards of the Conference. It also notes that the Government requested information from the Superintendence of Banks and Insurance to reply to the Committee’s observations, which will be forwarded when it has been received. In view of the fact that this information has not been provided to the Office, the content of the report, in the same way as in 2001, almost exclusively covers the health scheme, and not therefore the pensions scheme. The Committee therefore hopes that the Government will provide this information in the near future.

Health-care scheme

Part II (Medical care), Article 10 of the Convention (in conjunction with Article 8). With reference to the Committee’s previous comments, the Government reiterates that the benefits provided under the new health system include all the benefits set out in Articles 8 and 9 of the Convention. With regard to domiciliary visiting by general practitioners, the Government indicates that there are no specific regulations. There is a programme of domiciliary care (PADOMI) which provides direct health services by means of general and specialized domiciliary visiting, as well as continuous care for therapeutic purposes and health education. The Committee notes this information. However, it observes that PADOMI is intended for insured persons over 80 years of age and those under 80 years of age who suffer from physical limitations or incapacities. It recalls that, by virtue of Article 8 of the Convention, medical care must be guaranteed in the event of any morbid condition, whatever its cause, for all persons protected, without any age condition. In these conditions, the Committee hopes that the Government will take the necessary measures to ensure that the medical care provided under the new health system explicitly includes, in accordance with Article 10, paragraph 1(a)(ii), of the Convention, domiciliary visiting by general practitioners for all persons protected without any distinction as to age.

Part II (Medical care), Article 9, Part III (Sickness benefit), Article 15, and Part VIII (Maternity benefit), Article 48. With reference to its previous comments, the Committee notes the detailed information and statistics provided by the Government on the geographical coverage of the new health scheme, and on the population insured by both health-care providers (EPS) and by ESSALUD. It notes that the system of EPS is national in scope, since the rules do not set out any limitations or exclusions. However, it notes that in four departments (Amazonas, Huancavelica, Madre de Dios, Moquegua) there is no coverage by any type of service, and that in three others (Apurímac, Huanuco, Pasco) there is only outpatient coverage. The Committee hopes that the Government will take the necessary measures to extend the health system to the above regions. It requests the Government to keep it informed of the progress achieved in this respect. The Committee also notes that, according to the above report, as of November 2001 the system of EPS registered an accumulated total of 330,058 insured persons, representing an increase of 2.73 per cent in relation to November 2000. The Committee requests the Government to provide detailed information on the coverage of the persons protected in the manner required in the report form (see the direct request).

Part XIII (Common provisions) (in conjunction with Parts II, III and VIII), Article 71. With reference to its previous comments, the Committee notes the information provided by the Government on the manner in which the Health-Care Providers Superintendence (SEPS) supervises the operation of the health-care system. It notes in this respect Superintendence Resolution No. 053-2000-SEPS/SD, approving the General Supervision Rules of the SEPS, and Superintendence Resolution No. 026-2000-SPES/CD, published on 6 May 2000, approving the Regulations respecting infringements and penalties for health-service providers. The Committee further notes a supervision report prepared by the SEPS relating to the Clinica del Pacífico S.A.C. It requests the Government to provide, as appropriate, the supervision reports for Novasalud EPS and Rimac Internacional EPS, and the decisions issuing penalties delivered in accordance with Superintendence Resolution No. 026-2000-SEPS/CD (see the Management Evaluation Report for the year 2001, page 5). With regard to the financial viability of the institutions participating in the health scheme, the Government indicates that the legislation (Supreme Decree No. 009-97-SA, and the Regulations issued under Act No. 26790) empowers the SEPS to carry out inspections both during the establishment and functioning of EPS. The Committee once again requests the Government to provide copies of feasibility studies (ibid., page 8).

Article 72. In reply to the Committee’s previous comments, the Government reiterates that the participation of protected persons in the administration of the health system is not obligatory as SEPS is a public body established by the law, the objective of which is to authorize, regulate and supervise the operation of EPS and guarantee the proper use of the funds that they administer. It is the policy of SEPS to disseminate the rights of regular insured persons, and to take into consideration the opinions of the various stakeholders. The Committee notes this information. It shares the opinion of the Government that, with regard to the SEPS, the participation of the persons protected is not obligatory. However, it notes that the EPS are entities which are independent of the SEPS and that the supervision carried out by the latter does not imply the participation of the persons protected in the administration of the EPS. The above was corroborated by the Worker delegate of Peru in June 2002 in the Committee on the Application of Standards of the Conference. In view of the fact that, by virtue of the legislation (sections 15 and 16 of Act No. 26790), enterprises which provide health care, through EPS or their own care services, are entitled to a credit drawn from workers’ contributions equal, in principle, to 25 per cent of the latter, the Committee requests the Government to indicate the measures that it intends to adopt to allow the participation of the persons protected in the administration of EPS and the health-care services of individual enterprises which, according to the Institutional Management Evaluation Report of 2001, amounted on 31 December 2001 to 529 enterprises and entities providing health care.

Pension system

The Committee notes the information concerning the Insurance Standardization Office (OMP) and the funds administered by the directorate of the Consolidated Reserve Fund (FCR), as well as the statistical information on the private pensions system. The Committee notes the statement made by the Government representative in the Committee on the Application of Standards of the Conference in June 2002. However, it notes that once again this year the Government has not replied to the questions raised in its previous comments. In these conditions, it is bound to reiterate the points raised previously.

I.  Private pensions system

In its statement to the Conference Committee in June 2002, the Government indicated that the introduction of the private pensions system was due to the financial exhaustion of the pay-as-you-go system, resulting from a series of related factors. The State is not, however, considering renouncing its obligation to ensure a national social security system in general. In this respect, on 1 January 2002, Act No. 27617 was published, which is still awaiting implementing regulations, but which among other provisions establishes the minimum pension of the private pensions system. These measures cover the transfer of accredited contribution amounts for pensioners through the National Public Savings Fund. The Government is aware of the importance of social security Conventions, in view of the important role that they play in combating poverty. For this reason, it is important to do everything necessary, with the support of the ILO, to find appropriate solutions to harmonize the international standards and obligations with the internal policy and rights. It is therefore necessary to work towards achieving a better level of the pension to be achieved gradually and which has been proposed as an objective of the private pensions system. The Committee notes the above statement. It hopes that in its next report the Government will describe the manner in which the following issues, which have been raised for a number of years, have been resolved.

1. Part V (Old-age benefit), Articles 28 and 29, paragraph 1 (in conjunction with Article 65 or Article 66). In its previous comments, the Committee recalled that the rate of the pensions provided by the private pensions system does not appear to be determined in advance, since it depends on the capital accumulated in individual capitalization accounts, and particularly on the earnings from these accounts. The Committee noted the statistical data on the pensions adjustment factor and the monthly average pension per member, provided by the Government in September 1998, but noted that the data were not adequate to allow it to assess the effect given to the Convention. The Committee notes that, according to the report on the ONP and the funds administered by the directorate of the FCR, Ministry of Economy and Finance, June 2002, page 5, some 25,000 persons received benefits under the private pensions system. The Committee requests the Government to provide information on the amount of such pensions. The Committee once again recalls that, under Article 29, paragraph 1, read in conjunction with Articles 28 and 65 or 66, an average benefit at least equal to 40 per cent of the reference wage has to be secured to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 30 years of contribution. The Committee would therefore be grateful if the Government would provide statistical data as requested in the report form to allow it to make a full evaluation of the extent to which the old-age benefit, in all cases and irrespective of the type of system selected, attains the level prescribed by the Convention.

In relation to its previous comments, the Committee notes with interest that Act No. 27617 was published on 1 January 2002, but that it is still awaiting implementing regulations, and which among other provisions, establishes the minimum pension for the private pensions system. The Committee requests the Government to provide detailed information on the amount of the minimum pension. In this respect, the Committee recalls that the formula set out in Article 66 can be applied within the framework of a private pensions system, provided that the minimum old-age benefits payable to a standard beneficiary with 30 years of contribution are not less than the minimum amount required by the Convention (40 per cent of the wage of an ordinary adult unskilled male labourer within the meaning of paragraphs 4 and 5 of the above Article). The Committee therefore requests the Government to provide a copy of the above Act and, where appropriate, its implementing regulations, as well as the statistical information required by the report form.

2. Article 30. The Committee once again requests the Government to indicate the measures which have been adopted or are envisaged to guarantee the full application of this provision of the Convention (payment of the benefit throughout the contingency) with regard to the "programmed retirement" system, under which monthly withdrawals may be made from the account until the accumulated capital is exhausted, contrary to the above Article. In this regard, the Committee also refers to its comments on the application of Article 4 of the Old-Age Insurance (Industry, etc.) Convention, 1933 (No. 35).

3. Part IX (Invalidity benefit), Article 58. With reference to its previous comments, the Committee notes that in the case of a worker with permanent invalidity, the "programmed retirement" is provided as a survivors’ pension, with the insured person maintaining ownership of the individual capital account, which generates rights for dependants and is adjusted every quarter in accordance with the current economic situation. The Committee once again requests the Government to indicate how full effect is given to this provision of the Convention (provision of the benefit throughout the contingency or until an old-age benefit becomes payable) in the event of the permanent total invalidity of a worker who has selected the "programmed retirement" system.

4. Part XIII (Common provisions), Article 71, paragraph 1. In relation to its previous comments, the Committee notes that the contributions made by each worker are absolutely independent of each other, and that administrative expenses are covered by a minimal percentage of the contributions made by each of the workers, and that this percentage goes to form part of a fund through which, by means of a mini-redistribution system, the administrative expenses are financed in a general manner. The Committee recalls that the cost of the benefits, certain administrative expenses and the cost of certain commissions are at the exclusive charge of workers who are insured under an AFP, with employers’ contributions being of a voluntary nature. By virtue of Article 71, paragraph 1, "the cost of the benefits ... and the cost of the administration of such benefits shall be borne collectively by way of insurance contributions or taxation or both in a manner which avoids hardship to persons of small means and takes into account the economic situation of the Member and of the classes of persons protected". The Committee once again requests the Government to indicate the measures which have been adopted or are envisaged to give full effect to the Convention in this respect.

5. Article 71, paragraph 2. The Committee once again recalls that, under these provisions of the Convention, the total of the insurance contributions borne by the employees protected shall not exceed 50 per cent of the total of the financial resources allocated to the protection of employees and their spouses and children. In order to be in a position to assess the effect given to this provision of the Convention, the Committee once again requests the Government to provide in its next report the statistics requested in the report form under this Article of the Convention for both the private pensions and health systems and the schemes administered by the public system.

II.  System of pensions administered by the ONP

The Committee once again draws the Government’s attention to the following points.

1. Part V (Old-age benefit), Article 29, paragraph 2(a). With reference to its previous comments, the Committee notes the Government’s statement that, to be entitled to receive a full retirement pension proportional to the amount of the contributions paid, a minimum of 20 years of contributions has been set. In its report received in September 1998, the Government acknowledges that Peruvian law does not envisage the situation described in this provision. The Committee recalls that Article 29, paragraph 2(a), provides that, where the old-age benefit is conditional upon a minimum period of contribution, a reduced benefit shall be secured to a person protected who has completed a qualifying period of 15 years of contribution or employment. The Committee once again points out that the qualifying period laid down in the national legislation is higher than the 15-year period established in the Convention. In these conditions, the Committee is bound to urge the Government to take the necessary measures to ensure that persons protected are entitled to a reduced benefit after 15 years of contribution, as provided by this provision of the Convention.

2. Part XI (Standards to be complied with by periodical payments), Articles 65 and 66. The Committee notes the adoption of resolution No. 001-2002-JEFATURA/ONP, which provides for an increase in the pensions under the National Pension System covered by Legislative Decree No. 19990. It requests the Government to provide a copy of the above resolution. The Committee notes the Government’s statement that the maximum rate of the old-age pension paid by the public pension system is inadequate and not proportional to the contributions made by workers. It also notes that, as from 1 January 1997, the contributions to the national pension system cannot be lower than 13 per cent of the insurable wage of each worker. Furthermore, a National Public Savings Fund has been established, the profits from which will be used to provide supplements to pensioners whose total monthly pensions do not exceed 1,000 new soles. The Committee hopes that the Government will continue providing information on the measures adopted or envisaged to increase the amount of the benefits paid by the national pensions system with a view to attaining the level prescribed in the Convention. Furthermore, the Committee once again requests the Government to provide all the statistics required in this respect by the report form under Article 65 or 66, including statistics on the review of the long-term benefits to take into account changes in the cost of living. In this respect, the Committee once again recalls the importance that it attaches to the revision of the rates of current periodical payments in the case of long-term benefits, as required by Article 65, paragraph 10, and Article 66, paragraph 8. The Committee requests the Government to provide a copy of the above resolution.

III.  Supervision of the private and public pensions systems

The Government indicates in its report received in September 1998 that the State assumes overall responsibility for matters relating to the provision of benefits and takes any measures required for this purpose and for ensuring the sound administration of institutions and services involved in the implementation of the Convention. The Committee would be grateful if the Government would indicate the specific measures adopted to apply Article 71, paragraph 3, and Article 72, paragraph 2, with regard to both the private and the public pensions systems. In this context, the Committee recalls the importance of carrying out regularly the actuarial studies and calculations required by Article 71, paragraph 3.

With particular reference to the private system, the Committee notes that, by virtue of section 23 of Supreme Decree No. 054-97-EF, investments made by AFPs must generate a minimum level of profit. Furthermore, the Government is responsible for determining the criteria of minimum profitability (guaranteed by the statutory reserve formed from the AFPs’ own funds and other sources). The Committee would be grateful if the Government would also indicate in its next report all the measures taken to ensure the minimum level of profits generated by AFPs for their members and if it would provide a copy of the Supreme Decree approved by the Minister of Economics and Finance.

IV.  Participation of persons protected
  in the administration of the system

1. The Committee once again requests the Government to indicate the measures which have been taken or are envisaged, in the context of the private pensions system, to give effect to Article 72, paragraph 1, which provides that, where the administration is not entrusted to an institution regulated by the public authorities or to a government department responsible to the legislature, representatives of the persons protected shall participate in the management, or be associated therewith in a consultative capacity, under prescribed conditions. In this respect, the Committee refers to the information provided by the Government in its report of 2001 on the application of Convention No. 35, and trusts that the Government will indicate any new measures which have been adopted to allow the participation by the persons protected in the administration of the private pensions system.

2. The Committee requests the Government to indicate the manner in which representatives of the persons protected participate in the management of the pensions system administered by the Insurance Standards Office (ONP), and particularly whether they are represented on the management bodies of the ONP.

With reference to the observations made by the Association of Retired Oil Industry Workers of the Metropolitan Area of Lima y Callao, the Committee notes the Government’s statement that no authority can address issues pending before a judicial body, nor interfere in the exercise of its functions. The Committee refers to its previous comments and trusts that the Government will in due course provide copies of any final judicial decisions on cases brought in connection with the observations made by the Association of Retired Oil Industry Workers of the Metropolitan Area of Lima y Callao.

With reference to a communication submitted by the World Federation of Trade Unions, the Committee notes the information provided by the Government to the effect that a special commission is entrusted with preparing a report on the situation of insurance schemes covered by Legislative Decrees Nos. 1990 and 20530, and others under the responsibility of the State. Once this commission has submitted its report, the Government will be able to determine the merits of the matters raised by the National Central Association of Retired Workers and Pensioners of Peru (CENAJUPE).

While fully aware of the complexity of the issues raised, the Committee trusts that the Government, in accordance with the statement by its representative in June 2002, will seek advice from the competent services of the Office on the organization and working of the public and private social security systems in the areas of health care and pensions. The Committee trusts that the Government will redouble its efforts to provide the information requested in the present observation, as well as in its direct request.

[The Government is asked to reply in detail to the present comments in 2003.]