Workmen's Compensation (Accidents) Convention, 1925 (No. 17) - Colombia (Ratification: 1933)

Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

The Government communicated the following information:

The Government, following the conclusions of the Committee on Social Security, will submit to the Congress a draft law to reform the existing system.

As regards various Articles of the Convention, the Government indicates the following:

Article 2. Concerning limitations related to the non-application of the compensation for occupational accidents, the corresponding provisions were abandoned in practice taking into account that, due to the economic factors (inflation), there are no enterprises with less than 50,000 Colombian pesos of registered capital.

Article 5. Under sections 23, 60, 61, 62 and following regulatory Decree No. 1848 of 1969, a public official who suffers from temporary or permanent invalidity due to an occupational accident has a right to receive a pension which, in terms of the Convention, corresponds to periodical payments.

The articles in question provide:

Section 23: 1. In case of permanent partial incapacity a public official has a right to compensation proportional to the degree of incapacity which is determined on the basis of the salary received and the amount of which should not be less than one month's salary nor superior to 23 months of salary. (...)

2. In case of permanent total incapacity or great invalidity, the employee has a right to an invalidity pension regulated in Title XII (section 23).

Section 60 provides that every public official who suffers temporary or permanent invalidity has a right to receive an invalidity pension.

Section 61 further indicates that for the effects of the invalidity pension, a public official will be considered an invalid if he for whatever reason has lost in percentage not less than 75 per cent of his working capacity, provided that such loss is not the result of an intentional act, commission of a grave fault, or an unjustified and grave violation of safety regulations.

Article 7. Victims of occupational accidents who become incapacitated and need the constant help of another person are considered by the Colombian legislation as falling under the category of "great invalidity" which provides for special treatment to the extent that section 21 of Decree No. 3170 of 1964 stipulates that a worker has a right, in these circumstances, to receive a pension (rent) equivalent to 85 per cent of a basic monthly salary, which is higher than that for the permanent absolute incapacity fixed at 70 per cent.

Article 10. Section 10 of Decree No. 3224 of 1981 provides: a worker covered by the social security who is a victim of an occupational accident or suffers from an occupational disease has a right:

(a) to the necessary medical, surgical, hospital and pharmaceutical aid as well as to the other necessary therapeutic means (without any other limit but that related to the duration of contingency);

(b) to the supply, repair and renewal of the orthopaedic appliances and prostheses the use of which is considered to be necessary due to the injury received and under the conditions established by special regulations.

As concerns the National Fund for Social Protection which covers social security for the employees and workers of the State, section 25 of resolution No. 2640 of 1984 stipulates: a member affected by a disease of occupational or non-occupational origin or by an occupational accident has a right to have the National Fund for Social Protection provide him with the corresponding medical help without any limitation and for all the time which will be necessary, including the supply of the orthopaedic appliances, prostheses and surgical measures.

In addition, a Government representative, the Minister of Labour and Social Security, referred to the observation of the Committee of Experts where it requested that steps be taken to amend the legislation on workmen's compensation of industrial accidents in order to bring the legislation in question fully into line with the Convention. With respect to Article 2 of the Convention, the provisions mentioned in the observation had been repealed in practice. It was indeed impossible to establish enterprises with a capital which was less than 50,000 Colombian pesos (around US$75). With regard to the points related to the application of Article 5 of the Convention, the Committee of Experts should again examine this question in the light of the provisions of the regulatory Decree No. 1848 of 1969 mentioned by the Government in its written communication and which clarifies Decree No. 3135 of 1968. As concerns the application of Article 7 of the Convention, it was appropriate to add that victims of occupational accidents who became incapacitated and who needed the constant help of another person were considered by the Colombian legislation as falling under the category of "great invalidity". These persons had the right to receive a special pension which was higher than that granted in the case of permanent absolute incapacity.

As regards Article 10 of the Convention, the provisions of Decree No. 3224 of 1981 and of Resolution 2640 of 1984 provided for services of medical assistance to workers in the private and public sectors as well as the supply of prostheses and orthopaedic appliances. It would be appropriate to take note of these legislative texts to which the Committee of Experts made no reference in its observation. In the event where the slightest divergence subsisted between the legislation and practice and the Convention, the Government was ready to examine the question and to put proposals before Congress with a view to amending the relevant laws. With regard to point 2 of the observation, the Government shared the concern felt by the Committee of Experts as to the number of people covered by the social security scheme. This was a problem that occurred in both developed and developing countries as was demonstrated in the tripartite seminar organised by the ILO in 1991 on the future of social security in industrialised countries. The constituents showed themselves to be conscious of this problem by providing in the Constitution that the State of Colombia should extend social security coverage by progressive stages. Social security coverage, both territorially as well as in terms of the number of persons covered, could be extended.

The Employers' members thanked the Government representative for this information but regretted that it had not been made available to the Committee of Experts. With respect to Article 2 of the Convention, the Government maintained that in practice it complied with the requirements of the Convention. It should thus not be a problem to ensure that the legislation itself was brought into line with the Convention. With respect to Article 5, the Government cited a different Decree to that relied upon by the Committee of Experts and it would be appropriate to submit this Decree to the Experts for their review. With respect to Article 7, which concerned additional compensation to victims of industrial accidents, it appeared that some compensation was provided for by Decree No. 3170 and it would be appropriate to submit this text as well to the Committee of Experts for review. The application of Article 9 of the Convention was not referred to either in the written or the oral presentation of the Government representative. It would be useful if he explained the way in which his Government complied with this provision. As for Article 10, the Government representative once again cited a different Decree to that which was referred to by the Committee of Experts. The Committee of Experts in its report also asked for some statistical information with respect to the number of persons who were actually protected by the workmen's compensation laws. This number appeared to be quite low but, based on the new information that the Conference Committee had received, this figure could in fact be substantially higher and this new information should be provided to the Committee of Experts. Generally, the Experts needed to study this legislation attentively so that this Committee could be in a better position in the future to determine whether the Government of Colombia had met the requirements of the Convention.

The Workers' members indicated concern about ensuring the extension of the social security scheme to the whole of the population as soon as possible because the Committee of Experts themselves wanted detailed information on the progress achieved, with a view to progressively extending this scheme throughout the national territories. Current figures showed that about 31 per cent of the active population was covered by the scheme but that a higher figure would be noted and appreciated by this Committee. Moreover, the Committee of Experts had indicated that in making an assessment of whether a government had fulfilled the commitments it had entered into concerning the Conventions which it had ratified, it was not only the laws that mattered but that statistical information was needed as well. The Government representative was invited to submit such information not only to this Committee but also to the Committee of Experts in order to make such an assessment.

A Workers' member from Greece added that the Committee of Experts had very clearly established that the Colombian legislation was not in conformity with the provisions of the Convention. The Government representative should clearly indicate if his Government intended to amend this legislation which seems to be a relatively simple procedure. It was sad to have to discuss the application of a Convention relating to accidents at work since this was a problem which should first be dealt with by preventive measures. Governments should, for their part, apply legislation which was in conformity with the Convention.

The Government representative specified that, in the event that the examination of the new observations of the Committee of Experts revealed the need to revise the current legislation, his Government would be ready to put the matter before Congress which would then have the last word in accordance with the democratic system prevailing in his country.

A Workers' member from France, recalling that the Committee of Experts had indicated that only 31.2 per cent of the active population was covered by social security, considered that this low percentage required a more specific explanation from the Government representative, particularly regarding practical measures which could be taken to this end.

The Government representative confirmed his previous explanation that an eventual legislative reform would not relate to an extension of the social security coverage but to the provisions relating to Articles 2, 5, 7, 9 and 10 of the Convention. The coverage of the social security scheme depended on available funds. The social security scheme was financed by contributions from employers and workers and the State faced many problems in order to comply with its legal obligations in the matter. The assistance of ILO experts would be welcome, as well as, as was suggested by the Director-General of the ILO, international assistance in this domain. His country was absolutely prepared to receive suggestions and ILO assistance in order to obtain the resources that were indispensable in order to extend social security coverage.

The Committee took due note of the information supplied by the Government representative from which it gathered that new documents were available on the points raised by the Committee of Experts. It trusted that the Government would provide this information to the Experts very soon. In view of its concern over a social security scheme not covering all the workers and not being extended to the whole national territory, it expressed its firm hope that it would find the situation in complete conformity with the Convention at one of its next sessions.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comments: Direct requests C.12, C.17, C.18 and C.19; direct requests C.24 and C.25

The Committee notes the observations provided by the Single Confederation of Workers of Colombia (CUT), the General Confederation of Labour (CGT) and the Confederation of Workers of Colombia (CTC) on the application of Conventions Nos 12, 17, 18 and 19, dated 31 August 2022, which were communicated with the Government’s report. The Committee requests the Government to provide its comments in this regard.

The Committee also notes the observations of the International Organisation of Employers (IOE) and the National Employers Association of Colombia (ANDI), dated 31 August 2022, communicated with the Government’s report.

In order to provide a comprehensive view of the issues relating to the application of ratified social security Conventions, the Committee considers it appropriate to examine Conventions Nos 12, 17, 18, 19, 24 and 25 together in a single comment.

Article 1, Conventions Nos 12, 17, 18, 24 and 25. Representation made under article 24 of the ILO Constitution. Application of the Conventions in practice. Progressive extension of the numbers of persons covered. The Committee notes that, at its 342nd Session (June 2021), the Governing Body found receivable the representation made by the CUT, CGT and CTC under article 24 of the ILO Constitution alleging non-compliance by the Government of Colombia with the Maternity Protection Convention, 1919 (No. 3), the Workmen’s Compensation (Agriculture) Convention, 1921 (No. 12), the Workmen’s Compensation (Accidents) Convention, 1925 (No. 17), the Workmen’s Compensation (Occupational Diseases) Convention, 1925 (No. 18), the Sickness Insurance (Industry) Convention, 1927 (No. 24), the Sickness Insurance (Agriculture) Convention, 1927 (No. 25), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The Committee observes that the allegations contained in the representation refer to the coverage of protected persons and the guarantee of social security benefits in relation to Conventions Nos 3, 12, 17, 18, 24 and 25. In accordance with its usual practice, the Committee has decided to suspend its examination of matters related to the subjects referred to until the Governing Body adopts its report on the representation.

Article 5 of Convention No. 17. Compensation in the form of a lump sum. The Committee notes the information provided by the Government on guarantees of stability of employment and the obligation of employers to provide rehabilitation measures. The Committee also notes that the legislation provides for the payment of a higher-level compensation benefit in the event of permanent partial incapacity. In this regard, the Committee observes that the Government has not indicated the measures adopted with a view to guaranteeing the proper utilization of the lump sum received in such circumstances. The Committee wishes to recall that Article 5 of the Convention provides that the compensation payable in the event of permanent incapacity or death may as an exception be wholly or partially paid in a lump sum, if the competent authority is satisfied that it will be properly utilized. In this context, the Committee once again requests the Government to indicate the measures adopted so that the competent authorities ensure the proper utilization of the lump sum benefit, in accordance with Article 5 of the Convention.

Article 11 of Convention No. 17.Guarantees of the payment of benefits to workers in the event of the insolvency of the employer or the insurer, and in cases of the failure to register workers. The Committee notes the information provided by the Government in its report that occupational risk administrators are required to take out reinsurance coverage, and that the Guarantee Fund for Financial Institutions (FOGAFIN) is responsible for the payment of pensions in the event of the insolvency of the pension administrator. The Committee further notes that, in the event of the insolvency of enterprises, Act No. 1116 of 2006 grants preference to labour credits, as a result of which workers in enterprises under compulsory liquidation are assisted by the law, on an equal footing, to benefit from the distribution of the active assets during liquidation. With reference to the failure to register workers, the Committee notes that, in the case of workers who are not registered under the General Labour Risks Scheme (SGRL), the State does not guarantee the payment of employment injury benefits, and workers have to have recourse to the ordinary labour courts to make their claims against the responsible employer. In this regard, the Committee notes the observations of the CUT, CGT and CTC indicating that court action takes years to be completed and is costly. The Committee recalls the Government that Article 11 of Convention No. 17 provides that Member States shall make such provision as is deemed most suitable for ensuring in all circumstances the payment of compensation to workers who suffer injury and to their dependants. In this context, the Committee requests the Government to indicate the manner in which the payment of compensation is guaranteed in the case of workers who are not registered with the SGRL, over and above the possibility for them to take action through the ordinary courts. The Committee also requests the Government to provide information on the court rulings handed down recognizing the payment of such compensation.

Article 2 of Convention No. 18. Recognition of occupational diseases. The Committee notes the indication that the regulations on recognition on first application through administrative decisions have been under revision since 4 March 2022 by the Ministry of Finance and Public Credit, which is seeking to reduce to 140 days the procedure for the determination and recognition of loss of capacity for work in all cases. The Committee further notes the Government’s indication that work is being undertaken on a draft text to add Part 5 of Book 3 to Decree No. 780 of 2016, regulating the health and social protection sector, which establishes the procedure for determining the origin of the disease or injury, the degree of invalidity and the date of the recognition and review of the invalidity. In light of the above, the Committee requests the Government to provide information on: (i) progress in the adoption of the regulations referred to above, with a view to the simplification of the process of the recognition of occupational diseases upon first application, and the reduction in the timeframe for their recognition; and (ii) the number of occupational diseases that have been reported and recognized, and the average period of time between their recording and their recognition.

Application in practice of Convention No. 19. The Committee notes the information provided by the Government on the adoption of Decree No. 117 of 2020 establishing a procedure to regularize the status of migrants with a view to reducing informal work and allowing the access to work with insurance coverage of Venezuelan citizens in an irregular migration situation. The Committee also notes Decision No. 1178 of 2021 and Decision No. 572 of 2022 of the Ministry of Health and Social Protection, adopting the temporary protection permit (PPT) as a valid identity document for Venezuelan migrants, with which they can register with the General Social Security System and the General Occupational Risks Scheme, through which they benefit from relevant protection and benefits for employment injuries. The Committee notes the observations of the CUT, CGT and CTC which indicate a lack of the necessary labour inspection to ensure compliance by employers with their obligations under labour law, as workers of Venezuelan nationality are subject to unfair treatment as a result of their vulnerable situation. In this regard, the Committee requests the Government to indicate whether the labour inspection services have reported irregularities in the payment of employment injury compensation to migrant workers.

Article 4(1) of Conventions Nos 24 and 25. Access to medical care. The Committee notes the information provided by the Government on the supervisory measures adopted by the National Health Supervisory Office in relation to health promotion bodies (EPS) and health service providers (IPS) to ensure that they comply with their obligations. The Committee also notes the statistical data, which shows that the number of complaints relating to access to medical care has diminished.

Article 4(2) of Conventions Nos 24 and 25. Sharing in the cost of medical care. The Committee notes the information provided by the Government that the cost share by beneficiaries in Colombia is 15.1 per cent, and that the share of the cost of health services paid by households represents 1.7 per cent of the total cost. The Committee recalls that, while Article 4(2) of the Convention provides that the insured person may be required to pay such part of the cost of medical care as may be prescribed by national laws or regulations, the principle of the provision of care free-of-charge is also established. In this context, the Committee requests the Government to provide information on the public financial assistance measures or policies that exist with a view to preventing hardship for insured persons, especially in cases which may require multiple consultations and complex or long-term medical treatment.

Article 6(1) of Conventions Nos 24 and 25. Non-profit and profit-making health insurance institutions. The Committee notes the information provided on the National Health Supervisory Office in relation to the adoption of measures with a view to the removal of the approval of institutions that do not guarantee the provision of health services to their members, including the partial revocation of the authorization to operate and precautionary measures. However, the Committee notes that the Government has not provided information on the controls carried out of user services by national, district and municipal social security councils in the field of health care. In this context, the Committee once again requests the Government to provide information on the supervisory activities of national, district and municipal social security health councils to monitor user services.

Article 6(2) of Conventions Nos 24 and 25. Participation of insured persons in management. The Committee notes the information provided by the Government on user alliances and associations, the role of which is to represent users in relation to health promotion bodies (EPS) and health service providers (IPS). The Committee further notes External Circular No. 008 of 2018 of the National Health Supervisory Office, which indicates that Benefit Plan Administrators (EAPB) and health service providers (IPS) shall take the necessary action to promote and strengthen the exercise of social participation in accordance with the laws and regulations in force.

Article 9 of Convention No. 24 and Article 8 of Convention No. 25. Right of appeal. The Committee notes the Government’s indication that, within the context of the Social Security System, there exist bodies, time limits and procedures regulated by Decree No. 1072 of 26 May 2015 and Legislative Decree No. 19 of 2012 on the right of appeal in relation to the recognition and granting of benefits for injury and diseases. The Committee notes the procedures described in relation to the recognition authority, the Regional Injury Recognition Board and the National Injury Recognition Board. It also notes the indication that, in addition to the administrative bodies referred to above, persons who are affected may take action through judicial bodies.

Application of Convention No. 24 in practice. Payment of health insurance. The Committee notes the information on the proceedings undertaken by the Supervisory Body delegated by the jurisdictional and conciliation authorities for the resolution of disputes that arose between users and providers in the health care system during the period between August 2018 and July 2022, which does not refer specifically to any progress in the action taken in relation to the employees of the International Aviation Company. The Committee recalls that the Government indicated in previous reports that the Ministry of Labour was undertaking an investigation and that a round table had been established under the leadership of the Deputy Minister for Industrial Relations and Inspection with a view to reaching an agreement. The Committee once again requests the Government to provide specific information on any progress achieved and the possibility of concluding this case.

Conclusions and recommendation of the Standards Review Mechanism. The Committee recalls the recommendations of the Tripartite Working Group of the Standards Review Mechanism, on the basis of which the Governing Body decided that Member States for which Conventions Nos 17, 18, 24 and 25 are in force should be encouraged to ratify the Employment Injury Benefits Convention [Schedule I amended in 1980], 1964 (No. 121), the Medical Care and Sickness Benefits Convention, 1969 (No. 130), and the Social Security (Minimum Standards) Convention, 1952 (No. 102). The Committee encourages the Government to give effect to the decision adopted by the Government Body at its 328th Session (October–November 2016) and to consider the ratification of the most up-to-date social security instruments.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on Workmen’s Compensation, the Committee considers it appropriate to examine Conventions Nos 12 (agriculture), 17 (accidents), 18 (occupational diseases) and 19 (equality of treatment) together.

The Committee notes the observations of the General Confederation of Labour (CGT) on the application of Conventions Nos 12 and 19, received in 2017, and the observations of the Confederation of Workers of Colombia (CTC) and the Single Confederation of Workers of Colombia (CUT), on the application of Conventions Nos 17 and 19, received in 2017.

Article 1 of Convention No. 12. Application of the Convention in practice. Progressive extension of coverage. In its previous comment, the Committee requested the Government to indicate the specific measures adopted to strengthen and extend the coverage of the General Occupational Risks System (SGRL) to agricultural workers. The Committee notes the Government’s reply in its report, in which it indicates that the strengthening and extension of SGRL coverage in the agricultural sector is continuing. The Committee notes that the average number of people insured by the SGRL is approximately 10.1 million, and that in May 2017 there were 372,309 insured persons in the agricultural, livestock, hunting and forestry sector. The Committee also notes the Government’s indication that the General Agreement for the Termination of the Conflict and the Construction of a Stable and Lasting Peace of 2016 laid the foundations for the Comprehensive Rural Reform and action to reduce poverty and inequality to secure the welfare of the rural population. The Committee also notes the allegations of the CTC and the CUT that the agricultural sector has the highest accident rate, and that crops such as sugar cane and palm oil have higher accident rates than the sector as a whole. The Committee also notes that the CGT, while emphasizing the importance of the signing of the Pact for Employment Formalization in the Agricultural and Livestock Sector in 2014, indicates that there is a high level of informality in the sector. The Committee trusts that the implementation of the General Agreement of 2016 and the Pact of 2014 will enable the continued pursuit of the extension of effective occupational accident coverage to agricultural workers and requests the Government to indicate any developments in this regard. The Committee also requests the Government to indicate any other measures envisaged or adopted to extend in practice the laws and regulations on occupational accident compensation to all agricultural wage earners and to give full effect to this Article of the Convention. Lastly, the Committee requests the Government to provide updated statistical data on the number of agricultural workers registered with the SGRL.

Article 1, in conjunction with Article 11 of Convention No. 17. Obligation of the State to guarantee the payment of benefits to workers whose employers have not taken out occupational accident insurance and payment of the allowance in the event of the insolvency of the insurer or employer. In its previous comment, the Committee requested the Government to clarify whether the victim of an occupational accident who is not registered with the SGRL would be entitled to reimbursement of his/her medical expenses and would receive compensation from occupational risk insurers (ARLs). The Committee also requested the Government to indicate the legal provisions that guarantee to victims of an occupational accident or disease the provision of the necessary medical care in the event of the insolvency of the ARL. Lastly, with regard to the insolvency of the employer, the Committee requested the Government to indicate the measures adopted or envisaged to guarantee the rights established by the Convention in the case of the insolvency of employers who are not insured through the SGRL. With reference to the first point, the Committee notes the Government’s indication that the occupational risk insurer to which an occupational accident claim is submitted is wholly liable for the benefits arising out of the accident and its sequelae, irrespective of whether or not the worker is registered with the insurer. Regarding the case of the insolvency of the ARL, the Government indicates that Decree No. 1295 of 1994 provides that the Financial Institutions Guarantee Fund (FOGAFIN) shall guarantee the payment of pensions in the event of loss of assets or the suspension of payments by the occupational risk insurer. Regarding medical care, it is provided by the General Comprehensive Safety and Health System in the case of persons who are not protected for the various reasons described. The Committee also notes the allegations by the CTC and CUT of the lack of protection against the insolvency of the insurer in the event of a loss of capacity for work of less than 50 per cent and in the case of workers whose employers are not insured through the SGRL. In this regard, the Committee notes the Government’s indication that the regulations in force provide for mechanisms for the constitution of reserve funds by ARLs. Concerning workers whose employers are not covered by the SGRL, in the event of the insolvency of the employer, the Committee notes the Government’s indication that the employer is responsible for registering workers and paying contributions to protect against contingencies in the event of occupational accidents or diseases. The State monitors social security registration, and to this end it has adopted Decision No. 1111 of 2017 on minimum standards of occupational safety and health management (now repealed by the new Decision No. 0312 of 2019). The Committee requests the Government to indicate the manner in which it is ensured that compensation is paid to victims of occupational accidents in the case of a loss of capacity for work of less than 50 per cent in the event of the insolvency of the ARL, and of the insolvency of employers not insured by the SGRL.

Article 5 of Convention No. 17. Compensation in the form of a lump sum. In its previous comments, the Committee expressed the hope that the Government would introduce appropriate procedures to strengthen the protection of victims of occupational accidents and diseases against the misuse of lump sum compensation, as provided for in Article 5 of the Convention. The Committee notes the observations of the CTC and the CUT alleging once again that, in the event of an occupational accident or disease resulting in a loss of capacity for work of between 20 and 50 per cent, workers are no longer granted pensions, but receive compensation in the form of a lump sum. The Committee notes the confirmation by the Government that the law establishes the provision of periodical payments only in the case of invalidity and survivors’ pensions for general or occupational injury granted for an incapacity for work of more than 50 per cent, and that the Office’s advice would be welcome to examine the possibility of providing compensation for permanent partial incapacity in the form of periodical payments, without prejudice to the right currently held by workers to the indexed lump sum. The Committee requests the Government to indicate the manner in which the competent authorities ensure the proper utilization of indexed lump sums. The Committee recalls that the Government may avail itself of the technical assistance of the Office to strengthen the measures to ensure the proper utilization of the indexed lump sum, or to examine the possibility of once again establishing periodical payments for workers victims of occupational accidents with a permanent partial incapacity exceeding a certain level. The Committee requests the Government to indicate any developments in this regard.

Article 2 of Convention No. 18. Recognition of occupational diseases. In its previous comments, the Committee requested the Government to respond to the observations of the trade union confederations and to provide information on the manner in which a disease is treated during the first 540 days that precede its classification as an occupational disease, and to indicate the average time for its recognition as such. The Committee also requested the Government to carry out a detailed analysis of the manner in which the national list of occupational diseases complies with the Schedule annexed to the Convention. Regarding the first point, the Committee notes the Government’s indication that Decree No. 1072 of 2015 provides that, where 30 days have elapsed from the end of the comprehensive rehabilitation process and the disease has still not been recognized on first application, in no event may the recognition exceed 540 days following the date of the accident or the diagnosis of the disease, in which case the worker shall have the right to appeal directly to the invalidity recognition board. The Government also indicates that during this period the cash benefits for temporary incapacity and permanent partial incapacity are set by Act No. 776 of 2002. Regarding the second point, the Committee notes the Government’s indication that Decree No. 1477 of 2014 is based on the legal presumption of the occupational nature of the diseases listed in its Schedule in accordance with section 202 of the Substantive Labour Code, and that the list of activities and industries contained in the Schedule of occupational diseases is not exhaustive. Finally, the Committee notes the Government’s indication regarding a draft decree to regulate the process for the recognition of occupational diseases on first application that must be followed by health promotion bodies, ARLs, insurance companies and pension funds. The Committee requests the Government to provide information on the progress achieved in strengthening the legal framework for the recognition of occupational diseases on first application by health promotion agencies, ARLs and other relevant bodies, and on any measures that simplify the recognition of the occupational origin of the occupational diseases listed in the Convention, thereby giving it full effect.

Article 1(1) of Convention No. 19, and the application of the Convention in practice. The Committee notes the Government’s indication that any foreign national who enters the labour market with a contract is entitled to the social benefits provided by the SGRL. The Committee notes the allegations of the CTC and the CUT that the Government has not provided data on the application of the Convention in practice, and their indication that, although under the law there is no difference of treatment of foreign workers for the purpose of the compensation of occupational accidents, in practice many unskilled migrant workers are recruited informally, so that they are not guaranteed registration with the SGRL. The CGT indicates that among foreign workers, irregular workers without a work permit are exposed to the absence of protection, and refers in particular to the situation of Venezuelan migrant workers in Colombia. The Committee requests the Government to provide information, if existing statistics so allow, on the approximate number of foreign workers in the country and on their occupation and nationality. The Committee also requests the Government to provide information on the number and nature of occupational accidents recorded among foreign workers, and on the compensation for occupational accidents provided to workers who are nationals of other member States that have ratified the Convention, and to their dependants.

Lastly, the Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group (SRM tripartite working group), the Governing Body has decided that member States for which Conventions Nos 17 and 18 are in force should be encouraged to ratify the more recent Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), and accept Part VI (see GB.328/LILS/2/1). The Committee therefore encourages the Government to follow up the Governing Body’s decision at its 328th Session (October–November 2016) approving the recommendations of the SRM tripartite working group and to consider ratifying Convention No. 121 or Convention No. 102 (accepting Part VI), as the most up-to-date instruments in this area.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the Government’s reply to its previous consolidated comment on Conventions Nos 12, 17 and 18. It also notes the observations of the Union of Workers of Colombia (UTC) on the application of Conventions Nos 17 and 18, received on 27 October 2014, and those made by the Single Confederation of Workers of Colombia (CUT), the General Confederation of Labour (CGT), and the Confederation of Workers of Colombia (CTC), on Conventions Nos 12, 17 and 18, received on 15 September 2015, as well as the observations made by the International Organisation of Employers (IOE) and the National Association of Employers of Colombia (ANDI) on the application of Convention No. 17.

Convention No. 12 (Article 1) and Convention No. 17 (Article 2(1)). Coverage. The Committee notes the steady increase in the number of persons covered by the Occupational Risks System (SGRL) from 6.5 million in 2009 to just over 8 million in 2012, and to approximately 9 million in 2014.

It also notes the adoption of Decree No. 2616 of 2013, amended by Decree No. 1072 of 2015, which regulates the affiliation to the occupational risks system of persons engaged in employment relationships of less than one month, that is, daily wage earners and part-time workers, with a view to progressively formalizing these workers and providing them with social protection coverage. The Government further indicates that it is currently preparing the regulations on the voluntary membership of independent and informal workers whose earnings are at least equal to the statutory minimum wage.

The CUT observes, in this respect, that with only about 8 per cent of agricultural workers covered by the SGRL, the level of enrolment in agriculture remains extremely low, yet this sector has one of the highest rates of occupational accidents: agricultural workers represent only 3.8 per cent of all SGRL affiliated persons but account for 9 per cent of all industrial accidents. Certain agricultural sectors, such as banana production, have, following their formalization, started effectively reporting industrial accidents, which has resulted in high accident rates in proportion to the number of persons employed therein. The CUT therefore considers that the following are inadequate for the agricultural sector: the SGRL coverage; the existing risk assessment and preventive measures; occupational health and safety training; and measures aimed at monitoring compliance with minimum age requirements. The CUT calls for the introduction of a differentiated policy guaranteeing access to social security to a considerable number of workers in rural areas. The Committee asks the Government to indicate the specific measures taken with a view to strengthening and extending SGRL coverage to agricultural workers.

Convention No. 17 (Article 5). Payment of benefits by employers to workers whose employers have not taken out SGRL insurance. In accordance with Law No. 1562, in the event of a work accident affecting a worker not affiliated to the SGRL by his or her employer, the latter will be directly responsible for the benefits provided by law. The CGT and the CUT previously indicated that, in cases in which employers did not affiliate their workers to the SGRL and refused to assume their direct liability, the only possibility left for the workers was to present their case before the courts. In its reply, the Government states that there are no interlocutory proceedings aimed at ensuring that victims of industrial accidents or occupational diseases not affiliated by their employer to the SGRL are nonetheless duly compensated by the social insurance institutions, which would address the defaulting employer for the reimbursement of incurred expenses. The Government also indicates that, in such a case, in accordance with section 2.2.5.1.25 of Decree No. 1072 of 2015, the worker is entitled to appeal to the regional council for recognition of invalidity, which firstly determines the institution that should provide compensation, and, secondly, claims reimbursement from the respective occupational risk insurer (ARL) through judicial action. The Committee, however, is unable to ascertain from these provisions mentioned by the Government, whether the victim of an employment injury who is not affiliated to the SGRL would nevertheless be entitled to have his or her medical expenses fully defrayed and receive compensation from the ARL which would then claim reimbursement from the employer at fault. The Committee asks the Government to clarify this point in its next report and recalls that in cases of failure of employers to fulfil their obligation to affiliate workers, the State bears the general responsibility for the provision of the occupational accident benefits, since the possibility of taking legal action for victims of industrial accidents does not give effect to Article 5 of Convention No. 17.

Convention No. 17 (Article 5). Compensation in the form of a lump sum. The Committee notes the information provided by the Government with respect to the conditions under which lump sums are paid to workers with recognized degrees of disability between 5 per cent and 50 per cent, in combination with legal guarantees for the maintenance of their employment relationship for the remaining working capacity. However, the Government has not responded to the concern expressed by the Committee with respect to cases of permanent disability between 25 per cent and 50 per cent where the risk of a loss of the lump sum compensation is increased even if the employment relationship is preserved. In this regard, the Committee once again expresses the hope that the Government will introduce appropriate procedures to strengthen the protection of victims of occupational accidents and diseases against the misuse of lump sum compensations, as provided for in Article 5 of Convention.

Convention No. 17 (Article 11). Protection against insolvency of the insurer. The Committee notes the Government’s confirmation that the Guarantee Fund for Financial Institutions (FOGAFIN) is only responsible for payment of pensions in the event of insolvency of an ARL, in conformity with section 83 of Decree Law No. 1295 of 1994. Nevertheless, the Government indicates that the provision of medical benefits in cases of employment injury is guaranteed by the State under article 48 of the national constitution but that in practice the probability of having recourse to this guarantee is very low. The Committee requests the Government to specify the legal provisions, other than constitutional, which guarantee victims of an employment injury the medical care due under Articles 9 and 10 of Convention No. 17 in case of insolvency of the ARL concerned.

Protection against insolvency of the employer. The Committee notes the Government’s indication that the State does not guarantee payment of employment injury pensions to workers whose employers are not affiliated to the SGRL and that, in order for the workers concerned to be able to exercise their rights, they must address the judicial authorities, including through the procedure of tutela. The Committee requests the Government to indicate the measures taken or envisaged to guarantee the rights established by the Conventions under examination, even in the case of the insolvency of employers who are not insured with the SGRL.

Convention No. 18. Recognition of occupational diseases. In their observations, the CGT and the CUT once again state that the procedures for the recognition of occupational diseases are slow and too cumbersome to implement in practice. Moreover, insurers prefer to compensate diseases as common diseases in so far as the cash benefits due are inferior (66 per cent) to those in the case of occupational diseases (100 per cent). In cases where the worker persists and the occupational origin of the disease is qualified, which can take up to five or six years, the worker’s entitlement to benefits could lapse. The CGT also reports problems of corruption or misuse of the social security resources, which have the effect of undermining the confidence of users in the entire system. The Government refers in its report to the adoption, in 2012, of Decree No. 1562 aimed at providing greater clarity in this respect, in particular by stating that the qualification of the occupational origin of the disease must be made, at the latest, 540 days after the initial diagnosis. In addition, Decree No. 1507, adopted in 2014, aims at regulating the point at which the pathological condition can be considered stable. Finally, the Government refers to the adoption of Decree No. 1477 of 2014, establishing the list of occupational diseases which provides that a disease not expressly on the list can henceforth be recognized as occupational, subject to proving the causal link with occupational risk factors and which adds four new occupational diseases to the pre-existing list. The listed diseases are considered direct occupational diseases and do not require screening by an ARL as regards payment of benefits and medical care. The Committee requests the Government to respond to the observations of the CGT and the CUT and to provide information on the manner in which a disease is treated during the first 540 days which may precede its qualification as an occupational disease (as regards the level of cash benefits and the type of medical care). Please also indicate the average time in practice for the recognition of an occupational disease and whether any measures are envisaged to simplify the administrative procedures for the recognition of the occupational origin of the disease in order to prevent the payment of compensation being rendered impossible due to legal limitation periods. Finally, the Committee notes that the list annexed to Decree No. 1477, while it contains all the diseases and toxic substances listed in the table annexed to the Convention, does not expressly state all corresponding industries listed therein (for example, loading, unloading or transport of goods not on the list of the occupations listed in the Decree). The Government is requested to ask the competent departments of the State to carry out and provide in its next report a detailed analysis of how the national list of occupational diseases complies with the list annexed to the Convention.

[The Government is asked to reply in detail to the present comments in 2016.]

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the Government’s report of 30 August 2012 and the various comments supplied by the Single Confederation of Workers of Colombia (CUT), the National Business Association of Colombia (ANDI), and the General Confederation of Labour (CGT), respectively of 31 August, 3 September and 5 September 2012.

Article 2(1) of the Convention. Coverage. The Committee notes with interest that following the adoption of Law No. 1562 of 11 July 2012 amending the Vocational Risk System and other provisions concerning occupational health, the personal scope of the Occupational Risks System (SGRL) was extended. The new law incorporates the previous system of vocational risks into the new SGRL and extends compulsory affiliation to several groups of employees, including independent contractors with more than one month contract, the worker-members of cooperatives and pre-cooperatives and self-employed workers in high-risk activities. Moreover, the law provides for voluntary membership of informal workers. According to the Government’s report, in March 2012, 8,126,344 dependent workers and 243,165 self-employed workers were affiliated to the SGRL, compared with 6,633,833 and 73,800, respectively, in December 2009. Forty-one per cent of the active population would therefore currently be covered by the SGRL. For its part, the CUT stresses that with only 8.72 per cent of the workers covered by the SGRL, the level enrolment in agriculture is still extremely low. In order to be able to evaluate the impact of the new legislation regarding insurance coverage against occupational risks, the Committee invites the Government to continue providing statistics on the number of SGRL affiliates, including information specifically on the construction and agricultural sectors. Additionally, the Committee requests the Government to indicate in its next report how Law No. 1562 and its implementing regulations define informal workers and the rights of casual and daily workers to benefits under the SGRL.

Penalties for non-compliance with SGRL regulations. The Committee notes with interest the strengthened sanctions established by Law No. 1562 in the event of default of the employer to observe its obligations in respect of occupational risks, including in case of non-payment of contributions or of absence of reporting of occupational accidents and illnesses.

Payment of benefits by employers to non-affiliated workers. In accordance with Law No. 1562, in the event of a work accident affecting a worker not affiliated to the SGRL by his or her employer, the latter will be directly responsible for the benefits provided by law. While the Government does not provide information on how this liability is applied in practice, the Committee understands from the comments made by the CGT and the CUT that the victims need to go to court. The Committee has always considered that the failure of employers to fulfil their obligation to affiliate workers, legal action by victims of accidents should not constitute the standard mean of appeal, the State being responsible for taking all necessary measures to ensure and facilitate the provision of employment injury benefits, leaving the possibility to hold the employer liable for reimbursing the expenses incurred by the State. With a view to being able to fully assess the practicalities of this issue, the Committee requests the Government to indicate whether there exist interlocutory proceedings, either judicial or in the framework of labour inspection services, for victims of accidents or occupational diseases not affiliated by their employer to SGRL. Please also indicate the average length of the proceeding for obtaining payment of compensation in these circumstances.

Payment of benefits in the event of disputes about the commonality or occupational accident or disease. The CGT and CUT draw attention to the high number of cases where long delays would occur in health care or the payment of benefits due to disputes between health care providers and occupational risk insurers (ARL) on the origin of the accident or illness. The Government states that the Law No. 1562 guarantees the payment of cash benefits to workers even in cases where the source of injury or illness is in dispute. Under section 5(3) of the Law, when the cause of the accident or disease is questioned, the ARL pays the worker “the percentage provided by the contributory social security health system”. The Committee observes that this percentage is lower than that corresponding to occupational accident or illness. The Committee requests the Government to report on the practical effects of the adoption of the new law on the frequency and length of proceedings concerning disputes on the occupational or general nature of accidents or diseases.

Article 5. Compensation in the form of lump sum. Law No. 1562 does not modify the rules applicable to workers who suffer a permanent loss of working capacity between 5 and 50 per cent: payment of compensation in the form of lump sum and maintenance of their employment relationship for the remaining working capacity. The Committee invites the Government to explain in further detail how employment protection is guaranteed by law. As for cases of permanent disability between 25 and 50 per cent where the risk of a loss of income is increased, the Commission considers it necessary, even if the employment relationship is preserved, to establish additional protection in the form of monitoring by the competent authority of the proper use of lump sum compensation, as provided in Article 5 of Convention. In this regard, the Committee again expresses the hope that the Government will introduce appropriate procedures to strengthen the protection of victims of occupational accidents and diseases against the misuse of lump sum compensations.

Article 11. Protection against insolvency. The Government indicates in its report that the Guarantee Fund for Financial Institutions (FOGAFIN), would be responsible both for social assistance benefits and cash benefits in the event of insolvency of an ARL while the CUT stresses in its comments that, in accordance with section 83 of Decree Law No. 1295 of 1994, the Fund only guarantees the payment of pensions provided by the ARL. The Committee requests the Government to indicate in its next report the normative texts extending the FOGAFIN guaranty to social assistance benefits provided under the SGRL scheme.

The Committee notes that the practical information requested in respect of cases of insolvency of employers responsible for compensating workers who were not affiliated to the SGRL has not been supplied. The Committee understands that the cautionary measures contained in the Labour and Social Security Procedural Code are only aimed at preventing the risk of insolvency of the employer. Recalling that victims of industrial accidents should in any case not bear the consequences of the insolvency of the employer, the Committee requests the Government to explain in its next report how the State guarantees access to benefits to the worker who, while not affiliated to SGRL, fell victim of an industrial accident.

[The Government is asked to reply in detail to the present comments in 2015.]

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s report received in 2008 replying to its 2007 observation, as well as the Government’s report received in 2009 replying to its 2008 observation and to the comments made by the General Confederation of Labour (CGT).

Article 2, paragraph 1, of the Convention. Coverage. The Government informs that in 2007, 5,945,653 workers were affiliated to the general employment injury scheme. The Committee recalls that in 1998 the number of affiliates was 6,185,191 and asks the Government to explain the reasons behind this decreasing number of affiliates.

Coverage in the construction sector. The CGT draws attention to the lack of protection against employment accidents in the construction sector and the practical difficulties concerning the compensation of industrial accidents affecting the high incidence of workers in that sector who do not have an employment contract. In reply, the Government reports that the National Committee of Occupational Health in the Construction Sector has undertaken activities to promote health and prevent occupational accidents and diseases in the construction sector. The Committee further notes the information supplied by the Government regarding the implementation of section 4(e) of Decree No. 1295, under which employers who do not affiliate their workers to the general system of employment injury shall be responsible for the benefits guaranteed by the Decree in cases of occupational accidents, noting in particular judgements Nos 14038 and 21496 of the Supreme Court which upheld this obligation. The Committee asks the Government to indicate how the abovementioned Decree is applied to informal workers in the construction sector.

Article 5. Measures to ensure that lump-sum compensation will be properly utilized. In Colombia a worker suffering a permanent decrease in his or her capacity for work of between 5 and 50 per cent is accorded a payment of compensation in the form of a lump sum and his or her employment is protected for the remaining working capacity. Recalling that lump-sum compensation in such cases may be payable only if the competent authority is satisfied that it will be properly utilized, the Committee again expresses the hope that the Government will be able to introduce appropriate procedures which will strengthen the protection of the victims of employment injury against misuse of lump-sum payments.

Article 11. Payment of compensation in the event of insolvency of the employer or insurer. Law No. 712 of 2001 reformed the Labour and Social Security Procedural Code and provides for injunctive measures to be taken by the labour judge in case of employer insolvency. In addition, Law No. 1149 of 2007 establishes a system of oral proceedings which allows for a fast and efficient adjudication in cases in which employers do not pay workers’ compensation due to insolvency. The Committee notes this information with interest and would be grateful if the Government would keep it informed on the application in practice of these guarantees. Please specify how the Guarantee Fund for Financial Institutions (FOGAFIN) guarantees the provision of medical benefits to the victims of employment injuries in the event of insolvency of insurance companies authorized to operate in the employment injury insurance branch.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that the Government’s report replying to its 2007 observation has been received. It also notes the comments made by the General Confederation of Labour (CGT) referring, inter alia, to certain practical difficulties concerning the compensation of industrial accidents affecting workers in the construction sector without labour contracts. Since the Government’s response to these comments has not yet reached the Office, the Committee has decided to examine all the questions raised with respect to the application of Convention No. 17 at its next session. The Committee therefore asks the Government to supply all information relevant in this regard.

[The Government is asked to reply in detail to the present comments in 2009.]

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government’s report contains no reply to its previous comments. It must therefore repeat its previous observation, which read as follows:

Article 2(1) of the Convention. The Committee notes with interest, from the statistics supplied by the Government, that the number of workers affiliated to the general system for employment injury is increasing, from 4,320,038 members in 1996 to 6,185,191 members in 1998. In this regard the Committee requests the Government to communicate, on the one hand, information on the measures taken to ensure that all employers conform with section 4(c) of Decree No. 1295 cited above, in the practice of affiliation of their workers and, on the other hand, to continue to communicate statistical information on the number of workers affiliated to the general system for employment injury compared to the total number of salaried persons, both in the private and the public sector. Furthermore, the Committee again requests the Government to supply detailed information on the implementation of section 4(e) of Decree No. 1295, under which employers who do not affiliate their workers to the system shall be responsible for the benefits guaranteed by the above Decree in cases of occupational accidents.

Article 5. In reply to the earlier comments of the Committee regarding payment of compensation in the form of a lump sum where the worker suffers a definitive decrease in his or her capacity for work of between 5 and 50 per cent, the Government indicates that the legislation does not provide for the adoption of measures to ensure that the above compensation will be properly utilized. The Committee recalls in this respect that, under this provision of the Convention, compensation payable in cases of accidents where permanent incapacity results shall be paid in the form of periodical payments; they may only be paid wholly or partially in the form of a lump sum if the competent authority is satisfied that it will be properly utilized. The Committee lays all the more stress on this point since the legislation authorizes payment in the form of a lump sum for decreases in the capacity for work of up to 50 per cent, a decrease which could result in a substantial loss in earning capacity. Under these circumstances, the Committee hopes that the Government will indicate in its next report the measures taken or envisaged to guarantee the full application of this provision of the Convention.

Article 11.  1. In its earlier comments, the Committee had recalled the need to take measures to ensure in all circumstances the payment of compensation to victims of employment injuries and their dependants and to guarantee payment in the event of the insolvability of the employer, in view of the fact that, under section 4(e) of Decree No. 1295, where the employer has not affiliated his workers to the general system for employment injury, he remains responsible for the payment of their benefits. The Government indicates in this regard that, under the Labour Code, claims arising from wages, social benefits and other compensation are accorded a preferential status. While noting this information, the Committee considers that the preferential status allowed to these claims is not alone sufficient to ensure full application of this provision of the Convention, especially where the employer is responsible for the long-term payment of benefits (disability or survivor’s benefits). It consequently requests the Government to indicate in its next report the measures taken to guarantee full application of this provision of the Convention.

2. In reply to earlier comments by the Committee, the Government indicates that the Banking Supervisory Authority exercises financial control over the insurance companies authorized to operate in the employment injury insurance branch. Moreover, the Guarantee Fund for Financial Institutions (FOGAFIN) guarantees the payment of benefits to these workers in the event of the insolvency of the insurance companies. The Committee notes this information. It requests the Government to communicate additional information in its next reports on the implementation of the FOGAFIN guarantee, indicating in particular whether the pertinent regulation provided under section 83 of Decree No. 1295 has been adopted and, if so, supplying a copy thereof. Please also specify the manner in which medical benefits are guaranteed in the event of insolvency of insurance companies.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information supplied by the Government regarding the general compensation system for employment injury established under Decree No. 1295 of 22 June 1994, as well as the statistical data relative to the numbers affiliated to the system. It also notes with interest the details supplied by the Government in reply to its comments on the application of Articles 8, 9 and 10 of the Convention. However, the Committee wishes to draw the Government’s attention to and receive information on the following points.

Article 2(1) of the Convention.  The Committee notes with interest, from the statistics supplied by the Government, that the number of workers affiliated to the general system for employment injury is increasing, from 4,320,038 members in 1996 to 6,185,191 members in 1998. In this regard the Committee requests the Government to communicate, on the one hand, information on the measures taken to ensure that all employers conform with section 4(c) of Decree No. 1295 cited above, in the practice of affiliation of their workers and, on the other hand, to continue to communicate statistical information on the number of workers affiliated to the general system for employment injury compared to the total number of salaried persons, both in the private and the public sector. Furthermore, the Committee again requests the Government to supply detailed information on the implementation of section 4(e) of Decree No. 1295, under which employers who do not affiliate their workers to the system shall be responsible for the benefits guaranteed by the above Decree in cases of occupational accidents.

Article 5.  In reply to the earlier comments of the Committee regarding payment of compensation in the form of a lump sum where the worker suffers a definitive decrease in his or her capacity for work of between 5 and 50 per cent, the Government indicates that the legislation does not provide for the adoption of measures to ensure that the above compensation will be properly utilized. The Committee recalls in this respect that, under this provision of the Convention, compensation payable in cases of accidents where permanent incapacity results shall be paid in the form of periodical payments; they may only be paid wholly or partially in the form of a lump sum if the competent authority is satisfied that it will be properly utilized. The Committee lays all the more stress on this point since the legislation authorizes payment in the form of a lump sum for decreases in the capacity for work of up to 50 per cent, a decrease which could result in a substantial loss in earning capacity. Under these circumstances, the Committee hopes that the Government will indicate in its next report the measures taken or envisaged to guarantee the full application of this provision of the Convention.

Article 11.  1.  In its earlier comments, the Committee had recalled the need to take measures to ensure in all circumstances the payment of compensation to victims of employment injuries and their dependants and to guarantee payment in the event of the insolvability of the employer, in view of the fact that, under section 4(e) of Decree No. 1295, where the employer has not affiliated his workers to the general system for employment injury, he remains responsible for the payment of their benefits. The Government indicates in this regard that, under the Labour Code, claims arising from wages, social benefits and other compensation are accorded a preferential status. While noting this information, the Committee considers that the preferential status allowed to these claims is not alone sufficient to ensure full application of this provision of the Convention, especially where the employer is responsible for the long-term payment of benefits (disability or survivor’s benefits). It consequently requests the Government to indicate in its next report the measures taken to guarantee full application of this provision of the Convention.

2.  In reply to earlier comments by the Committee, the Government indicates that the Banking Supervisory Authority exercises financial control over the insurance companies authorized to operate in the employment injury insurance branch. Moreover, the Guarantee Fund for Financial Institutions (FOGAFIN) guarantees the payment of benefits to these workers in the event of the insolvency of the insurance companies. The Committee notes this information. It requests the Government to communicate additional information in its next reports on the implementation of the FOGAFIN guarantee, indicating in particular whether the pertinent regulation provided under section 83 of Decree No. 1295 has been adopted and, if so, supplying a copy thereof. Please also specify the manner in which medical benefits are guaranteed in the event of insolvency of insurance companies.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the adoption of Act No. 100 of 23 December 1993 establishing an overall social security system, as well as Decree No. 1295 of 22 June 1994, governing the organization and administration of the general system for employment injury. Under the new system, all employers have to affiliate under the general system for employment injury (section 4(c) of the Decree), which covers all the public and private bodies, standards and procedures designed to prevent, protect and assist workers with regard to the effects of diseases and injuries which may arise during or as a consequence of their work (section 1). The choice of bodies which administer the general system for employment injury is free and voluntary for the employer (section 4(f)). However, such bodies can only be established by the Social Insurance Institute and by life insurance companies which obtain authorization from the Banking Supervisory Authority to operate in the employment injury insurance branch (section 77 of the Decree). Employers which are registered with the Social Insurance Institute when the Decree comes into force may transfer their affiliation to any other body administering the employment injury branch, provided it is duly authorized (section 78 of the Decree). The new general system for employment injury came into force for private sector employers and workers as of 1 August 1994; it will be applicable to the public sector at the latest by 1 January 1996 (section 97 of the Decree). From the date of publication of the Decree, certain sections of the Labour Code respecting compensation for employment injury, as well as certain provisions of Decree No. 3135 of 1968 and Decree No. 1848 of 1969, respecting public officials and employees, concerning which the Committee had commented previously, are repealed.

The Committee would be grateful if the Government's next report contained detailed information on the implementation in law and practice of the new general system for employment injury established by Decree No. 1295 of 1994 under each of the Articles of the Convention. Furthermore, it would be grateful in particular to be provided with information on the following points.

Article 2, paragraph 1, of the Convention. 1. The Committee requests the Government to provide statistics on the number of workers registered with the general system for employment injury by their employer, under the terms of section 4(c) of Decree No. 1295, and their proportion in relation to the total number of employees, in both the private and public sectors.

2. The Committee also notes that by virtue of section 4(e) of the above Decree, employers which do not register their workers under the general system for employment injury shall be responsible for the benefits laid down in the above Decree, in addition to any sanctions applicable under the law. The Committee would be grateful if the Government would provide detailed information on the effect given to this provision. It also requests the Government to indicate the measures taken to ensure that in practice employers register their workers under the new general system for employment injury.

Article 5. The Committee notes that, under the terms of section 42 of Decree No. 1295, any person covered by the general system for employment injury who suffers a definitive decrease in his or her capacity for work is entitled, when the loss of capacity is less than 50 per cent, but at least 5 per cent, to compensation payable as a lump sum. The Committee recalls that, in accordance with Article 5 of the Convention, compensation may be paid as a lump sum if the competent authority is satisfied that it will be properly utilized. It would be grateful if the Government would indicate the measures which have been taken or are envisaged to ensure that full effect is given to this provision of the Convention.

Article 8. The Committee would be grateful if the Government would provide detailed information on the manner in which the new general system for employment injury is supervised in practice. Furthermore, the Committee would be grateful if the Government would also indicate the legal channels of redress available to workers in the event that their benefits are refused or that disputes arise concerning their amount.

Articles 9 and 10. The Committee requests the Government to indicate in its next report whether a maximum amount or time-limit is established for the cost of medical, surgical and pharmaceutical aid, as well as for the supply and renewal of artificial limbs and surgical appliances (section 5 of Decree No. 1295).

Article 11. 1. The Committee hopes that the Government's next report will contain detailed information on the measures taken to ensure in all circumstances, and in accordance with this provision of the Convention, the payment of compensation to the victims of employment injuries and their dependants, and particularly to guarantee payment in the event of the insolvency of the employer in cases where the latter remains responsible for the payment of benefits under the terms of section 4(e) of Decree No. 1295 due to failure to register workers under the general system for employment injury.

2. The Committee notes that under the terms of section 79 of Decree No. 1295, life insurance companies which wish to obtain authorization from the Banking Supervisory Authority to operate in the employment injury insurance branch have to possess their own assets to a level not lower than an amount determined regularly by the Government (500 million pesos in 1994). Futhermore, under the terms of section 83 of the above Decree, without prejudice to the fulfilment by reinsurance companies of their obligations, the State guarantees, through the Guarantee Fund for Financial Institutions (FOGAFIN), the payment of pensions in the event of the loss of the assets or the suspension of payments by the body administering the general system for employment injury, in accordance with regulations issued for that purpose. The Committee requests the Government to provide further information on the implementation in practice of this guarantee and to provide the text of the regulations mentioned in section 83. The Committee would also be grateful if the Government would indicate the manner in which the provision of medical care is guaranteed in the event of the insolvency of the insurer.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

1. For many years, the Committee has been pointing out to the Government the need, until the social security scheme is extended to the whole of the national territory, to amend sections 204, 223(c), 224 and 225 of the Labour Code respecting the compensation of industrial accidents in order to give full effect to the Convention. In this connection, the Committee is bound to note that the reform of the Labour Code, to which the Government referred previously, and which was adopted through Act No. 50 of 1990, has not affected the above sections.

In its report the Government refers to certain provisions of the new Constitution, and in particular to section 48 respecting the right to social security. It also refers to section 53 of the Constitution, under which "international labour Conventions duly ratified are part of domestic legislation", stating its intention to adopt special regulations to give effect to this Convention.

While noting this information, the Committee is bound to urge the Government once again to take the necessary measures to amend the legislation respecting the compensation of industrial accidents in order to bring it into full conformity with the Convention on the following points:

Article 2 of the Convention. The exceptions and limitations concerning the persons and establishments covered under sections 223(c), 224 and 225 of the Labour Code are not authorised by the Convention.

Article 5. Section 204 of the Labour Code and sections 22 and 35 of Decree No. 3135 of 1968, which apply to public servants and public employees, provide for the payment of compensation in a lump sum corresponding to a certain number of months' wages in the event of permanent incapacity (partial or total incapacity or complete disability) and also in the event of death, whereas under this provision of the Convention compensation must, as a rule, be paid in the form of periodical payments and may not be converted into a lump sum unless guarantees of its proper utilisation are provided to the competent authorities.

Article 7. The national legislation does not envisage the provision of additional compensation to victims of industrial accidents whose incapacity is of such a nature as to need the constant help of another person throughout the contingency.

Article 9. Section 204(1) of the Labour Code limits the provision of medical, pharmaceutical, surgical and hospital care to victims of industrial accidents to two years, whereas, according to this provision of the Convention, such assistance shall be provided free of charge throughout the contingency.

Article 10. Section 204(1) of the Labour Code and section 21(b) of Decree No. 1848 of 1969 issuing regulations under Decree No. 3135 of 1968, do not explicitly provide for the compulsory renewal of artificial limbs and surgical appliances to the victims of industrial accidents, which is contrary to this provision of the Convention.

2. With regard to the extension of the social security scheme to the whole of the population and the national territory, the Committee notes the analysis of the situation contained in the National Occupational Health Plan 1990-95, which was supplied by the Government with its report on Convention No. 12. According to this paper, the number of people protected by social security institutions currently represents only 31.2 per cent of the active population, while the percentage of persons who are not protected in certain occupations may be as high as 96 per cent (for example, mining activities; small industrial enterprises; and the construction, transport, commercial and services sectors (with the exception of electricity, gas and water)). With a view to improving the situation and developing the social security system, particularly as regards protection against industrial accidents, the plan envisages a whole series of measures, including the compilation of detailed statistics on industrial accidents. The Committee therefore hopes that these measures will make it possible for the Government to supply with its next report statistical information indicating the number of workers protected by the employment injury benefits branch, whether they are wage-earners, employees or apprentices, and their percentage in relation to all employees (with the exception of the agricultural sector and seafarers) covered by the Convention, in both the public and private sectors. It also requests the Government to continue to supply detailed information on the progress that has been achieved with a view to progressively extending the social security scheme throughout the national territory.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

1. Article 2 of the Convention. (a) The Committee notes the information supplied by the Government in its report. In particular, it notes with interest the detailed statistical data on the geographical scope, the population, the economic sectors and occupations covered by social security institutions which, according to the Government, demonstrate the progress achieved in extending the social security scheme, despite the problems, particularly of an economic nature, which are affecting the country. The Committee notes, however, that it is not possible from the above information to determine the number of workers protected by the industrial accident branch of the social security scheme nor their percentage in relation to the total number of workmen, employees and apprentices employed in public or private establishments. The Committee requests the Government to provide information indicating the above.

(b) In relation to the amendment of the Labour Code, the Committee notes the adoption of Decree No. 0776 to amend the schedule for the assessment of incapacity to work arising out of industrial accidents that is contained in section 209. It regrets to note, however, that no indication is given as regards the elimination from the above Code of the exceptions and limitations set out in sections 223(c), 224 and 225, which are not envisaged by the Convention. In these circumstances, the Committee is bound once again to express the hope that, as the social security scheme does not cover the whole of the national territory, the Government will amend the Labour Code as indicated.

2. In reply to the observations that the Committee has been making for some years concerning Articles 5, 7, 9 and 10 of the Convention, the Government confines itself to indicating that these will be submitted for examination by the National Labour Council, which is to meet in the second half of November this year, and more specifically to the Special Commission to Reform the Colombian Labour System, so that it can examine and analyse the feasibility of amending section 204 of the Labour Code. In these circumstances, the Committee is bound to reiterate its previous comments that were set out as follows:

Article 5. In its earlier comments, the Committee pointed out to the Government that the payment of compensation in a lump sum, corresponding to a certain number of months' wages in the event of partial or total permanent incapacity or complete disability and also in the event of death (section 204(2) of the Labour Code and sections 22, 23 and 35 of Decree No. 3135 of 1968), is not in conformity with the Convention, under which this compensation must, as a rule, be paid in the form of periodical payments. Although the Convention does not fix the amount of compensation (which may correspond only to a certain percentage of the wage), it provides that compensation shall be paid throughout the contingency and allows these periodical payments to be converted into a lump sum if the competent authority is satisfied that it will be properly used. The Committee is therefore bound once again to urge the Government of the need to amend, for the above reasons, section 204(2) of the Labour Code and sections 22, 23 and 35 of Decree No. 3135 of 1968.

Article 7. The Committee noted the Government's intention to carry out a full and realistic prior study of the financial capacity of the Institute and the employers to assume the payment of the additional compensation due to incapacitated injured workmen who must have the constant help of another person, as laid down by this provision of the Convention. The Committee once again hopes that this study will lead to the early adoption of a provision prescribing the payment of this compensation and asks the Government to inform it of any progress made in this connection.

Article 9. The Committee has drawn the Government's attention to the fact that, under this provision of the Convention, medical, surgical, pharmaceutical and hospital aid must be granted free of charge throughout the contingency, which is contrary to the provisions of section 204(1) of the Labour Code, which restricts the provision of this aid to two years. The Committee therefore once again hopes that, pending the extension of the social security scheme to the whole national territory, the Government will amend this provision of the Labour Code as indicated.

Article 10. The Committee noted that a proposal was to be made to the Social Security Institute to study the possibility of introducing the compulsory renewal of artificial limbs and surgical appliances in conformity with this provision of the Convention. It therefore once again expresses the hope that the Government will take the necessary measures in the near future to amend both section 204(2) of the Labour Code and section 21(b) of Decree No. 1848 of 1969, issued under Decree No. 3135 of 1968.

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The Committee hopes that the Government will be able to indicate the progress achieved in this respect in its next report and that it will continue to supply information on the extension of the social security scheme and, in particular, of the industrial accident branch, if possible, as indicated under point I. [The Government is asked to report in detail for the period ending 30 June 1991.]