Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Equality of Treatment (Social Security) Convention, 1962 (No. 118) - Libya (Ratification: 1975)

The Committee notes the information supplied by the Government in its report of July 2004 and the information that the Technical Committee responsible for reports supplied to an ILO mission in October 2004. The Government undertakes to discharge its obligations and has requested technical assistance in order to take action on the Committee’s comments. Such assistance should be forthcoming early in 2005. Noting the concern expressed by the Conference Committee that serious discrepancies remain between the Convention and national law and practice, the Committee hopes that following the ILO assistance, the Government will take the necessary steps to give full effect in law and in practice to the provisions of the Convention. It hopes that the Government will send a detailed report for examination at its next session and that it will contain full replies to all the Committee’s previous comments, which addressed the following matters.

I. Article 3, paragraph 1, of the Convention (in conjunction with Article 19). The Committee noted in its previous observations that section 38(b) of the Social Security Act, No. 13 of 1980, and Regulations 28 to 33 of the Pension Regulations of 1981 provide that non-Libyan residents receive only a lump sum in the event of premature termination of work, whereas nationals are guaranteed, under section 38(a) of the Act, the maintenance of their wages or remuneration. The Committee once again points out the importance of abolishing the difference between Libyan workers and foreign workers in the event of premature termination of employment. It hopes that the Government will take all necessary steps to this end in the near future.

(b) According to the information sent by the Government and pursuant to the national legislation (sections 5(c) and 8(b) of the Security Act), foreign workers engaged in the public administration and non-Libyan self-employed workers may be affiliated only on a voluntary basis to the social security scheme unless, in the case of the latter, an agreement exists with their country of origin. The Committee again points out that where affiliation of nationals to the social security scheme is compulsory, as it is in the Libyan Arab Jamahiriya, to make affiliation voluntary for some categories of foreign workers is contrary to the principle of equal treatment laid down in the Convention (except where arrangements exist between the members concerned under Article 9). The Committee reiterates the hope that the Government will take the necessary measures in the near future to bring the legislation into line with the Convention on this point.

II. The Committee notes with regret that the Government merely reproduces the arguments adduced in its earlier reports and before the Conference Committee in 2002 in an attempt to justify the discrepancy between the national legislation and the Convention. It must therefore draw the Government’s attention to these matters once again.

1. Under the terms of Regulation 16, paragraphs 2 and 3, and Regulation 95, paragraph 3, of the Pensions Regulations of 1981, and without prejudice to special social security agreements, non-nationals who have not completed a period of ten years’ contributions to the social security scheme (years that may be supplemented, where appropriate, by years of contributions paid to the social insurance scheme) are entitled neither to an old-age pension nor to a pension for total incapacity due to an injury of non-occupational origin. Furthermore, Regulation 174, paragraph 2, of the above Regulations seems to imply a contrario that this qualifying period is also required for pensions and allowances due to survivors of the deceased person by virtue of Title IV of the Regulations, when death is due to a disease or an accident of non-occupational origin. Since such a qualifying period is not required for insured nationals, the Committee points out that the above provisions of the Pension Regulations of 1981 are incompatible with Article 3, paragraph 1, of the Convention. It hopes that the Government will indicate the measures that it has taken or is envisaging to give effect to this provision of the Convention.

2. Article 5. Regulation 161 of the Pension Regulations of 1981 provides that pensions or other cash benefits may be transferred to beneficiaries resident abroad subject, where appropriate, to the agreements to which the Libyan Arab Jamahiriya is a party. The Committee recalls that, in accordance with Article 5 of the Convention (read in conjunction with Article 10), each Member which has ratified the Convention must guarantee both to its own nationals and to the nationals of any other Member that has accepted the obligations of the Convention in respect of the branch in question, as well as to refugees and stateless persons, when they are resident abroad, the provision of invalidity benefits, old-age benefits, survivors’ benefits, death grants and employment injury pensions. The Committee considers that the strict application of Article 5 of the Convention is all the more necessary in the light of the mass expulsions which have taken place in the past of foreign workers from the national territory. It hopes that the Government will indicate in its next report the measures which have been taken or are envisaged to give effect to this basic provision of the Convention in both law and practice.

[The Government is asked to reply in detail to the present comments in 2005.]