Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Workmen's Compensation (Accidents) Convention, 1925 (No. 17) - Mexico (Ratification: 1934)

The Committee takes note of the Government’s report and wishes to draw attention to the following points.

Article 2 of the Convention. (a) In its previous comments, the Committee asked the Government to indicate whether, and if so under which provisions, apprentices are covered by the occupational injury compensation scheme established in the Social Insurance Act. The Government indicates in this connection that, under Mexican labour law, apprentices have the same status as “pupilos”, and refers the Committee to section 351 of the Federal Labour Act which regulates family undertakings. The Committee observes, however, that the information supplied mentions only the labour legislation applying to family undertakings and does not specify the provisions under which apprentices are covered by law for occupational accident compensation in any enterprise, undertaking or establishment of whatsoever nature, whether public or private, in conformity with this provision of the Convention. It therefore once again expresses the hope that the Government will provide this information in its next report.

(b) Under section 3 V of the Social Insurance Act, workers employed by federal public administrations, federal bodies and municipalities whom the law does not treat as being covered by social security may participate in the social security scheme on a voluntary basis. In its latest report, the Government indicates that the abovementioned provision of the Social Insurance Act aims to allow certain public entities which are unable to establish a social security service equivalent to the one offered by the Social Insurance Institute, to offer the workers concerned the possibility of joining the statutory scheme. The Government refers, in this connection, to certain provisions of the membership regulations setting forth the conditions in which such workers may join the statutory social insurance scheme covering occupational accidents. While taking note of this information, the Committee is bound to remind the Government once again that, according to Article 2, paragraph 1, of the Convention, the laws and regulations on accident compensation must apply to workers, employees and apprentices employed by any enterprise, undertaking or establishment of whatsoever nature, whether public or private. Consequently, workers excluded from the scope of the statutory social insurance scheme must have coverage under an occupational accident compensation scheme that meets the requirements of the Convention. Joining an accident insurance scheme on a voluntary basis cannot suffice in that the workers in question are covered by the Convention and so are entitled to demand coverage of the kind established in the Convention, even where they are not affiliated. The Committee therefore asks the Government to provide detailed information on the manner in which workers excluded from compulsory social insurance have protection equal to that established by the Convention in all circumstances. Please also specify the number of workers employed in public enterprises, undertakings or establishments excluded from statutory social insurance, and the number of persons who participate in the latter on a voluntary basis under section 13 V of the Social Insurance Act.

Article 5. According to section 58 III(3) of the Social Insurance Act, when the rate of permanent partial incapacity is between 25 and 50 per cent, the beneficiary may choose between the payment of either a pension or a lump sum. The Convention, however, establishes the principle that the compensation payable in the event of death or permanent incapacity must be paid in the form of periodical payments, and that payment in the form of a lump sum is authorized only on an exceptional basis where trustworthy guarantees of the proper utilization of the lump sum are provided to the competent authorities. The Committee infers from the statistical information sent by the Government that a large percentage of the cases of permanent incapacity resulting from occupational accidents are concerned by payment in the form of a lump sum. Further to its previous comments, the Committee observes that the Government provides no information regarding the requisite guarantees of proper utilization of the lump sum, payment of which implies forfeiting any future periodical payments. The Committee accordingly points out that payment of a lump sum in the event of permanent incapacity or death is authorized by the Convention on an exceptional basis where the workers or their dependants provide guarantees that the funds will be used properly and in such a way as not to jeopardize their future standard of living. It therefore asks the Government to re-examine the matter and to indicate in its next report the measures taken or envisaged to bring national law and practice into line with the Convention (please refer also to the comments under point 2 of the direct request pertaining to Convention No. 102).

Article 7. In its previous comments, the Committee requested the Government to state whether the assistance provided for in section 140 can also be provided to victims of occupational accidents requiring the constant assistance of another person, which corresponds to a supplement to the amount of the pension which may attain 20 per cent. The Committee notes that the Government does not provide the information requested and that it refers to section 59 of the Act which provides that the compensation for total permanent incapacity includes family and assistance allowances. The Committee therefore once again asks the Government to indicate whether the abovementioned assistance allowance is paid to injured workers with temporary incapacity who require the constant assistance of another person.

Article 8. The Committee again asks the Government to state whether, and if so under which provisions, the degree of incapacity of the injured person may be reviewed after the initial two-year period.

Article 10. Under section 56 of the Social Insurance Act, victims of an employment accident may benefit from the provision of artificial limbs and surgical appliances. With regard to the renewal of these, the Government refers to section 17 of the Medical Services Regulations which provides, inter alia, that the same services and appliances are supplied in the event of a relapse linked to occupational risks where the victim retains the status of insured person or receives a periodical payment for permanent incapacity. The Committee notes this information but points out that it does not indicate the manner in which artificial limbs and surgical appliances are renewed, in relation to normal wear and tear, for example. The Government is accordingly asked to provide relevant information in this regard.

Article 11. In its previous comments, the Committee requested the Government to indicate the extent to which provision of the compensation due to victims of accidents and their dependants is guaranteed in the event of the insolvency of the insurance company selected by these beneficiaries for the payment of their pensions.

In its report, the Government indicates that the insurance companies have to establish reserves of various kinds to enable them to pay the pensions of victims of occupational accidents whom they cover for lifetime annuity or survivors’ insurance. These companies replace the Social Insurance Institute and their aim is to ensure that the earnings on their investments will be sufficient to provide the benefits throughout the contingency. While taking due note of this information, the Committee is bound to point out that the prudential measures described by the Government aim to prevent the risk of insolvency, but do not indicate the manner in which payment of workers’ compensation would be guaranteed were insolvency to arise despite these preventive measures. The Government is therefore asked to provide relevant information on this matter.