Observación (CEACR) - Adopción: 2011, Publicación: 101ª reunión CIT (2012)

Convenio sobre la seguridad social (norma mínima), 1952 (núm. 102) - Venezuela (República Bolivariana de) (Ratificación : 1982)

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The Bolivarian Republic of Venezuela is a party to the Social Security (Minimum Standards) Convention, 1952 (No. 102), the Employment Injury Benefits Convention, 1964 (No. 121), the Invalidity, Old-Age and Survivors’ Benefits Convention, 1967 (No. 128), and to the Medical Care and Sickness Benefits Convention, 1969 (No. 130). Following the adoption of the new Constitution in 1999, the Government embarked upon a process of the systematic reform of the social security system with the adoption in 2002 of the Organic Act on the social security system (LOSSS), followed in 2005 by the adoption of the Organic Act on prevention, working conditions and the working environment (LOPCYMAT). In 2009, 2010 and 2011, the Confederation of Workers of Venezuela (CTV) and the Independent Trade Union Alliance (ASI) provided comments concerning the social security Conventions ratified by the Bolivarian Republic of Venezuela, reporting dysfunctions in the social security system and problems in the transition to the new system. In view of the need to address in a coherent manner all of the issues related to the reform of the social security system, the Committee has decided to regroup them in a single comment under Convention No. 102, as this is the instrument which establishes, in conjunction with the other social security Conventions, the general framework for the international obligations assumed by the Bolivarian Republic of Venezuela in this field.

I. Establishment of an integrated social security system

The Constitution of 1999 establishes in article 86 the right of all persons to social security, which it defines as a non-profit-making public service providing guarantees for health and ensuring protection against the contingencies of maternity, paternity, sickness, invalidity, catastrophic diseases, incapacity, special needs, employment accidents, loss of employment, unemployment, old age, widowhood, the state of being an orphan, housing, the costs arising out of family life and in any other circumstance of social prevention. The State is assigned the obligation of ensuring that this right is given effect in practice through the establishment of a system of security that is universal, comprehensive, financed on the basis of solidarity, unified, efficient, participatory and based on direct or indirect contributions and regulated by a special organic act.

The LOSSS was adopted in 2002, providing for the establishment of an integrated social security system composed of six benefit schemes regulated by special legislation respecting health benefits, pensions and other cash benefits, social services, occupational safety and health and housing. A period of five years was established for the adoption of this legislation. The LOSSS also envisaged the creation of two new institutions: the Social Security Treasury, responsible for matters relating to affiliation, the collection of contributions and the payment of cash benefits; and the Social Security Supervisory Unit (Superintendencia), responsible for monitoring all the social security schemes providing benefits within the framework of the integrated social security system. The LOSSS represented considerable progress in the sustainable development of social security as it established a clear, firm and coordinated legal framework within which social security schemes were subject to the primacy of law, and accordingly facilitated the sound governance of social security schemes. Furthermore, the establishment of strong institutions responsible for administering and supervising the new social security system offered an important and indispensable guarantee of the operation and sound governance of the social security system.

The Committee notes that legislation has been adopted on social services, occupational health and safety and housing, thereby constituting a new institutional framework for social security. With regard to the two other schemes, namely the health and the pensions schemes, the special legislation envisaged by the LOSSS has still not been adopted, despite the fact that the period of five years established by the Organic Act has elapsed. According to the CTV and the ASI, the Government amended the LOSSS in 2007 to remove the five-year period initially set for the establishment of the integrated social security system. The latest reports provided by the Government in 2011 do not indicate the manner in which it intends continuing the implementation of the structural reform initiated by the LOSSS in relation to the health-care scheme and the pensions and other cash benefits scheme. Moreover, up to now, the two new entities referred to above have not yet been established, with the Government confining itself to indicating that the establishment of the Social Security Treasury was entrusted in 2006 to the People’s Ministry for Labour and Social Security. According to the ASI and the CTV, the lack of action by the Government demonstrates the absence of determination to implement the rights recognized both in the Constitution and the LOSSS. While recalling the positive measures adopted by the Government, the ASI considers that they only constitute fragmentary and partial responses and that they reveal the absence of a legal conception of social security requiring, for its implementation, legislative responses preceded by studies of feasibility and economic necessity. The scarce information provided by the Government on its legislative intentions and the criticisms made by the trade unions lead to doubts with regard to the determination of the Government to continue the establishment of the integrated social security system as a whole. With a view to dissipating these doubts, the Committee would be grateful if the Government would indicate in its next report its political priorities for the implementation of the structures envisaged by the LOSSS in relation to the two benefit schemes that have not yet been established, with an indication, where appropriate, of whether a new time frame has been established for this purpose. The Committee hopes that the Government will be able to indicate in its next report the tangible progress made in the establishment of the new institutions referred to above.

II. Promotion of social dialogue

According to the ASI and the CTV, the difficulty in gaining access to information is the principal problem in evaluating the performance of the management and the results obtained in relation to social security. The fact that it is impossible to gain access to clear, reliable and official information, including statistics, prevents the parties concerned from engaging in effective monitoring of the rate of coverage and the management of the social security system. The organizations add that workers are not represented in either the Venezuelan Social Insurance Institute (IVSS) or the other public institutions, such as the National Institute for Prevention, Occupational Safety and Health (INAPSASEL) and the National Institute for Socialist Educational Cooperation (INCES). The ASI also reports the procedural difficulties encountered by users of the social security system in asserting their rights before the courts, as the Supreme Court of Justice (TSJ) has given contradictory indications with relation to the development that should characterize the implementation of the fundamental right to social security, particularly through delays in procedures and reversals of case law. The Office of the Attorney-General could also discharge its functions better by seeking to identify, where necessary, the responsible state officials and calling for sanctions to be imposed in the event of corruption, investigating user complaints promptly and determining responsibilities for the failure to establish the health and pensions schemes.

The Committee notes that the Government has not provided in its reports, including those for 2011, documented replies to the many comments made by the ASI and the CTV, and there is no indication that it has engaged with the social partners in constructive social dialogue relating to the implementation of the reform of the social security system. Noting that the Constitution recognizes the right and duty of associations to participate in decision-making in relation to the planning, implementation and monitoring of policy on public health institutions (article 84), the Committee wishes to recall that the success of reforms depends on consensus among the social partners and wide social acceptance, involving civil society organizations, the community and local administration. In view of their considerable expertise in the subject, the effective involvement of the social partners in the establishment of the new social security system would contribute to achieving progress in social security through the determination of the appropriate combination of schemes for the country. The time devoted to dialogue therefore represents a good investment and a saving of time when such dialogue results in broad social and political support for the necessary reforms, thereby giving rise to substantial economic and social advantages (see the General Survey on the social security instruments, Report III(1B), ILC, 2011, paragraph 558). The Committee therefore hopes that the Government will accord special attention to the comments and criticisms made by the trade union organizations with a view to completing the establishment of the integrated social security system, the beginnings of which were initiated by the LOSSS.

III Health benefits scheme

The 1999 Constitution recognizes that health constitutes a fundamental social right and an obligation upon the State, which is the guarantor of the right to life (article 83). The State is under the obligation to establish, finance and manage a public health system of an inter-sectoral nature, which is decentralized and participatory, integrated into the social security system and governed by the principles of universal free care, integrity, equity, social integration and solidarity (articles 84 and 85). The LOSSS established the legal framework for the implementation of these constitutional provisions and envisaged the adoption of specific legislation respecting health benefits for this purpose.

Nevertheless, the Government continues to refer to the 1967 Act on social insurance in relation to the legal framework applicable to health care. It also refers to the inclusion in the health programme of the progressive development of new medical consultation centres, comprehensive health services, the modernization of the hospital system and the construction of specialized health centres. According to the Government, this programme has resulted, up to now, in the establishment of some 1,600 consultation centres, 175 comprehensive diagnosis centres, 183 integral rehabilitation centres, six high-technology centres and a children’s cardiology hospital, with a view to enabling the 60 per cent of the population currently excluded from health care to be granted protection ultimately. The Government also refers to the establishment of social services in the field of health (misiones sociales Barrio Adentro I, II, III, IV) with the objective of protecting the health of the poorest persons and accordingly giving effect to the constitutional principle of free health care. The report provided by the Government in 2011 under Convention No. 130 is confined to indicating that there has been no change in the manner in which the Convention is applied.

On this subject, the ASI refers to a bill to implement the provisions of the LOSSS in the field of health, which was adopted on its first reading by Parliament in 2004, but has not become law, as it was not placed on the legislative agenda by the Government. While noting the various positive measures adopted by the Government in the field of health, the ASI considers that they are of an isolated nature and in practice are liable to result in the establishment of a health system under the control of the People’s Ministry of Health (MPPS), in parallel to the one administered by the IVSS, which would be in contradiction with the constitutional objective of the integration of the health system into the social security system. The ASI also expresses concern at the practice which consists of public institutions taking out health insurance for their employees with private providers for hospitalization, surgery and maternity. In practice, employees in the public sector continue to prefer using private health insurance because they consider that, in overall terms, the public health system is deficient. Although in 2009 the Government decided that all insurance policies of this type would in future be managed by a state body, it has still not determined the practical procedures for so doing. The consequence has been the transformation of the State into a collector of funding in support of the private health system, which prejudices not only the public social security system, but also workers, who are obliged to use part of their wages to cover health insurance in view of the absence of a public policy guaranteeing the constitutional rights to health and social security.

In light of this information, the Committee requests the Government to explain the reasons for the delays and impediments to the establishment of a public health-care scheme. The Committee recalls that the legislation on this subject, the 1967 Act on social insurance, is not adequate to guarantee that full effect is given to Convention No. 130. For many years, the Committee has been drawing the Government’s attention to the need to amend this Act to bring it into conformity with the obligations deriving from the international social security Conventions ratified by the country. The points raised above concern in particular the following provisions of Convention No. 130: Articles 10 and 19 (in conjunction with Article 5) (the need for effective coverage of either all employees and their dependants, or 75 per cent of the economically active population and their dependants); Article 13 (the need to provide copies of the laws and regulations specifying the medical care provided to the persons protected, in compliance with the minimum levels envisaged by this provision of the Convention); Article 16(1) (the need to bring section 127 of the General Regulations of the Act on social insurance into conformity with the established practice of the IVSS, which consists of providing medical assistance throughout the contingency); Article 16(2) and (3) (the need to provide a copy of any decision, circular or administrative rule of the IVSS setting out the practice which consists of providing medical care when the beneficiary is no longer part of one of the groups of protected persons in the case of sickness which began when the person concerned was still part of that group); Article 28(2) (the need to amend section 160 of the General Regulations of the Act on social insurance, under which the pension is suspended when the contingency is a result of a violation of the law, a crime or an offence against morals or decency; and Article 22, in conjunction with Article 1(h) (concerning the level of cash sickness benefits). While awaiting the implementation of the part of the LOSSS respecting health, the Committee requests the Government to indicate in its next report the measures adopted to give effect to each of the provisions of the Convention referred to above. The Committee also hopes that the next report will reply to the allegations made by the CTV and the ASI concerning the operation of the health system.

IV. The pensions and other cash benefits scheme

In parallel with the situation regarding health benefits, the Committee notes that social security cash benefits are still governed by the 1967 Act on social insurance. Following the adoption of the new Constitution in 1999, invalidity, old-age and, since 2010, survivors’ pensions have been provided at the rate of the minimum wage, which is adjusted each year. The Government adds that it has ensured the provision of all of the financial resources necessary for the social security system and has also assumed the responsibility entrusted to it by the Constitution by extending the coverage of social security and improving the effectiveness and equity of the distribution of public resources. The policy adopted has permitted a better redistribution of household income, an improvement in the situation in the poorest categories and a progression of the country in terms of the Human Development Index. In 2007, Presidential Decree No. 5316 extended old-age coverage to around 100,000 persons aged 70 and above residing in the country, in the context of an exceptional and temporary programme. In 2010, two other exceptional and temporary decrees were also adopted: Decree No. 7401 establishing an exceptional and temporary programme with a view to guaranteeing entitlement to an old-age pension to insured persons of pensionable age who, although they had paid at least a contribution during their professional life, do not fulfil the conditions for entitlement to a pension. Decree No. 7402 places the obligation upon the IVSS to pay old-age benefits to around 20,000 rural workers and fishers who have reached the age of 60 in the case of men and 55 in the case of women. According to the information provided by the Government, during the period covered by the 2006–11 report, the number of pensioners under the social security system is reported to have risen from 944,475 to 1,825,192 persons. The percentage of older persons (women aged over 55 years and men aged over 60 years) covered by the social security system rose from 24.36 per cent in 1998 to 57.06 per cent in 2009.

While emphasizing the efforts made by the Government to extend the coverage of the contributory system (6,701,444 persons covered in 2009) and to ensure old-age coverage to elderly persons who are excluded from it, the ASI recalls that over 1 million persons do not have old-age pensions and it expresses doubts as to the process selected by the Government to guarantee this coverage, through the adoption of different decrees for each of the categories concerned. Measures for the provision of special pensions, in the view of the ASI, represent uncoordinated efforts lacking an integrated legal framework, which are largely inadequate to resolve the structural problem related to the coverage of the contingency of old age. The ASI also refers to the lack of clarity and legal certainty in relation to entitlement to cash benefits and their level, which has serious consequences on the operation of the judicial system and the recognition of acquired rights, both by the administration and by the courts. A ruling by the Supreme Court of Justice in 2005 ordering old-age and survivors’ benefits to be calculated on the basis of previous earnings (TSJ, Social Chamber, Case No. 0816 of 26 July 2005) was accordingly ignored by the court entrusted with its enforcement, which approved the reduction of the level of pensions due to that of the minimum wage. Recently, a legal challenge, which is awaiting a ruling on its receivability by the Constitutional Chamber of the TSJ, lodged by the Venezuelan Programme for Education-Action in the Field of Human Rights (PROVEA) is calling for the failure to adopt legislation regulating the pensions system to be declared unconstitutional. According to the ASI, the adoption of the law on the pensions scheme and other cash benefits envisaged in the LOSSS would have the advantage of clarifying the situation in law and re-establishing the link between pension benefits and the previous earnings of beneficiaries. The ASI adds that the LOPCYMAT is still not applied in practice in relation to employment injury pensions, while awaiting the establishment of the new institutions envisaged by the LOSSS.

The Committee regrets that the Government has not replied to the detailed allegations made by the CTV and the ASI and that it has confined itself to indicating in its 2011 reports under Conventions Nos 121 and 128 that there is no change to be reported in the manner in which these Conventions are implemented, without indicating the way in which it intends to continue the implementation of the LOSSS. The Committee requests the Government to indicate its political intentions with regard to the adoption of the legislation respecting the pensions and other cash benefits scheme.

With regard to the implementation of the social security Conventions by the legislation that is currently applicable, the Committee notes that the information provided by the Government is confined to referring to the various legislative provisions, even though it has been drawing its attention for many years to the need to provide all the information requested in the report form. The Committee therefore requests the Government to provide detailed information in its next report in relation to the instruments mentioned below, based on the report forms, indicating the manner in which the applicable legislation, including the various exceptional and temporary measures adopted by the Government, gives effect to Conventions Nos 102, 121 and 128.

– With regard to the level of benefits: please demonstrate that cash benefits are of a level that is in conformity with the minimum established by Convention No. 121 in relation to employment injury benefit (Articles 13, 14(2) and 18(1), in conjunction with Article 19); and by Convention No. 128 in relation to old-age, invalidity and survivors’ benefit (Articles 10, 17 and 23, in conjunction with Article 26).

– With regard to Convention No. 121: Article 4 (the need to cover effectively all employees (including apprentices) in the public and private sectors, including cooperatives, and, in the event of the death of the family breadwinner, the prescribed categories of beneficiaries); Article 7 (the need to indicate the conditions under which a commuting accident shall be considered to be an industrial accident giving entitlement to compensation under the social security legislation); Article 8 (the establishment of a list of occupational diseases in accordance with the Convention); Article 10(1) (the need to take the necessary measures to determine explicitly in the legislation the types of medical care provided by the IVSS to insured persons, which shall include at least the care enumerated in the Convention); Article 18 (in conjunction with Article 1(e)(i)) (the amendment of section 33 of the Act on social insurance with a view to raising from 14 to 15 years the age up to which children shall be entitled to a survivors’ pension); Article 21 (the need to provide the statistical data required in the report form as a basis for assessing the real impact of the adjustment of pensions, taking into account variations in the general level of earnings and in the cost of living); Article 22(1)(d) and (e) and (2) (the need to amend section 160 of the General Regulations of the Act on social insurance, under which the pension shall be suspended when the contingency is due to a violation of the law, a crime or an offence against morals or decency).

– With regard to Convention No. 128: Article 21(1) (in conjunction with Article 1(h)(i) (the need to amend section 33 of the Act on social insurance to raise from 14 to 15 years the age up to which children shall be entitled to a survivors’ pension); Article 29 (the need to provide the statistical data required in the report form as a basis for assessing the real impact of adjustments of pensions, taking into account variations in the general level of earnings or in the cost of living); Article 32(1)(d) and (e) (the need to amend section 160 of the General Regulations of the Act on social insurance, under which the pension shall be suspended when the contingency is due to a violation of the law, a crime or an offence against morals or decency); Article 32(2) (the need to provide that when benefits are suspended, a proportion shall be provided to the dependants of the beneficiary); and Article 38 (indicate any increase in the number of employed persons protected in the agricultural sector).

– With regard to Convention No. 102: Articles 50 and 52 (in conjunction with Article 65) (the need to bring section 143 of the General Regulations on social security into line with section 11 of the Act on social insurance).