Observación (CEACR) - Adopción: 2015, Publicación: 105ª reunión CIT (2016)

Colombia

Convenio sobre la indemnización por accidentes del trabajo (agricultura), 1921 (núm. 12) (Ratificación : 1933)
Convenio sobre la indemnización por accidentes del trabajo, 1925 (núm. 17) (Ratificación : 1933)
Convenio sobre las enfermedades profesionales, 1925 (núm. 18) (Ratificación : 1933)

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.]