Session 3: ILO social security standards and their role in the design of national social security schemes and formulation of the law ILO, 2013

Key questions Right to social security in international law ILO’s mandate in social security and its standard-setting function Creation of international labour standards is a dynamic process Role of ILO social security standards in the design of social security schemes at national level and their establishment by law 2

Right to social security in international law 3

International instruments:  Universal Declaration of Human Rights (1948):  Article 22: “Everyone as a member of society has the right to social security”;  Article 25 para. 1: “Everyone has the right to […] security in the event of unemployment, sickness, disability, widowhood, old-age or other lack of livelihood in circumstances beyond his control”;  Article 25 para. 2: “Motherhood and childhood are entitled to special care and assistance”.  International Covenant on Economic, Social & Cultural Rights (1966):  Article 9: “The State Parties to the present Covenant recognise the right of everyone to social security, including social insurance”.  Ratified by Cambodia (1992), Indonesia (2006), Lao PDR (2007), Thailand (1999), Vietnam (1982) 4 Social security is a human right

Other international instruments: Convention on the Elimination of All Forms of Discrimination against Women, 1979 Convention on the Rights of the Child, 1989 Convention on the Elimination of All Forms of Racial Discrimination, 1965 The International Convention on the Protection of the Rights of All Migrant Workers and their Families, 1990 Convention on Rights of Persons with Disabilities, 2006 Convention relating to the Status of Refugees, 1951 and Convention relating to the status of stateless persons,

Regional instruments: African Charter on Human and Peoples’ Rights, 1981 Arab Charter on Human Rights, 2004 American Declaration of the Rights and Duties of Persons, 1948 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, 1988 European Social Charter, 1961 Charter of Fundamental Rights of the European Union, 2000 Commonwealth of Independent States – Convention on Human Rights and Fundamental Freedoms, 1995 Towards an ASEAN framework on social protection in October Social security is a human right

ILO’s mandate in social security and its standard-setting function 7

ILO’s Mandate in Social Security Preamble of the ILO Constitution (1919):  “An improvement […] is urgently required; as, […], by […] the «prevention of unemployment, […] the protection of the worker against sickness, disease and injury arising out of his employment, the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own”. Declaration of Philadelphia (1944):  To pursue “the extension of social security measures to provide a basic income to all in need of such protection and comprehensive medical care”. 8

Conclusions of the ILC (2001) and the ILO Declaration on Social Justice for a Fair Globalization (2008):  Confirmed ILO mandate in social security as laid down in the Declaration of Philadelphia (2001), launch of Global Campaign (2003) and stated the importance of social security as one of the strategic objective of the ILO (2008). Global Jobs Pact, ILC (2009):  Requests countries that do not yet have extensive social security to build “adequate social protection for all, drawing on a basic social protection floor, including: access to basic health care, income security for the elderly and persons with disabilities, child benefits; and income security combined with public employment guarantee schemes for unemployed and working poor” 9 ILO’s Mandate in Social Security

And more recently, the Resolution and conclusions of the recurrent discussion on social security, adopted by ILC 2011:  Underline the respective roles of governments and social partners, highlighting that governments have the primary responsibility for ensuring effective access to social security to all, and that effective social dialogue process play a key role in contributing to the formulation, implementation and monitoring of social security policies and ensuring good governance of national social security systems.  Affirm the mandate of the International Labour Office in assisting member States in all aspects of the design and implementation of their national social security strategies and policies.  Underline the key role of ILO social security standards in guiding policy making and the design of rights based and financially sound social security schemes for the extension of social security 10 ILO’s Mandate in Social Security

11 Creation of international labour standards: a dynamic process

What are International Labour Standards? ILS are legal instruments drawn up by the ILO’s constituents (governments, employers and workers) setting out principles and rights at work and beyond for protecting workers and their families, governing globalization, promoting sustainable development, eradicating poverty, and ensuring that people can work and live in dignity, decency, health and safety; They are either  Conventions: legally binding international treaties that may be ratified by member states, that create obligations for ratifying States (application and reporting); If not ratified, they serve as recommendations and guidelines  Recommendations: serve as non-binding guidelines; autonomous or accompanying a Convention; may also subject to reporting 12

What is the specificity of ILS? International Labour Standards are...  Universal -an expression of universally acknowledged principles, and a reflection of the law and practice emerging in ILO member States adopted at ILC by tripartite delegations of all Members  Formulated in a manner that makes them flexible to be translated into national law and practice with due consideration of the cultural and historical backgrounds, legal systems and levels of economic development of all constituents  Tripartite by nature as they are initiated, elaborated, adopted and applied/implemented, as well as monitored, by Governments, Workers and Employers 13

How are ILS created? the elaboration and adoption of the Social Protection Floors Recommendation, 2012 (No. 202) June 2011 ILC Recurrent Discussion on social protection (social security) Resolution and conclusions concerning the recurrent discussion on social protection Decision on standard-setting item (single discussion) at ILC 2012 (GB) August 2011 Law and practice report (white report) Summary of law and practice in member States Questionnaire on possible Recommendation on social protection floors (deadline: 1 November 2011 ) March 2012 Final report (blue report) Summary of Member responses to questionnaire (2A) Office commentary (2A) Office draft of proposed Recommendation (2B) June 2012 ILC standard-setting discussion (single discussion) Discussion of amendments Adoption of Social Protection Floors Recommendation Questionnaire please submit before 1 Nov 2011 Resolution and conclusions ILC 2011 Resolution and conclusions ILC 2011 Replies from 118 member States Vote: 453 votes in favour, 1 abstention Social Protection Floors Recommend ation

15 Role of ILO social security standards in the design of social security schemes at national level and their establishment by law

ILO social security standards Since 1919, a total of 31 Conventions and 23 Recommendations adopted, comprising one-sixth of all international labour standards 8 up-to-date Conventions:  Social Security (Minimum Standards) Convention, 1952 (No. 102);  Equality of Treatment (Social Security) Convention, 1962 (No. 118);  Employment Injury Benefits Convention, 1964 (No. 121);  Old-Age, Invalidity and Survivors’ Benefits Convention, 1967 (No. 128);  Medical Care Benefits Convention, 1969 (No. 130);  Maintenance of Social Security Rights Convention, 1982 (No. 157);  Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168);  Maternity Protection Convention, 2000 (No. 183) 16

9 up-to-date Recommendations:  Income Security Recommendation, 1944 (No. 67)  Medical Care Recommendation, 1944 (No. 69)  Employment Injury Benefits Recommendation, 1964 (No. 121)  Old-Age, Invalidity and Survivors’ Benefits Recommendation, 1967 (No. 131)  Medical Care Benefits Recommendation, 1969 (No. 134);  Maintenance of Social Security Rights Recommendation, 1982 (No. 165);  Employment Promotion and Protection against Unemployment Recommendation, 1988 (No. 176);  Maternity Protection Recommendation, 2000 (No. 191)  Social Protection Floors Recommendation, 2012 (No. 202) 17 ILO social security standards

Social security standards at the national level Models and targets for laws, reforms and policies ILS are primarily tools for governments which, in consultation with employers and workers, are seeking to draft and implement law, establish administrative structures, and develop social policy In the field of social security, ILO standards serve as key references for...  the elaboration of national social security extension strategies  the development and maintenance of comprehensive national social security systems,  the establishment and implementation of effective enforcement and compliance mechanisms  the design and parametric adjustments of schemes, establishment of levels  reform processes,  good governance of social security and improvement of social security administrative structures 18

Building comprehensive social security systems using ILO standards as reference 19 individual/household income Access to essential health care and minimum income security for all Social security benefits of guaranteed levels Voluntary insurance under government regulation level of protection high low Horizontal dimension: Guaranteeing access to essential health care and minimum income security for all guided by R.202 Vertical dimension: progressively ensuring higher levels of protection guided by C.102 and more advanced standards floor level

ILO social security standards: a normative framework held together by a unique set of common aims and principles underpinning the social security system Aim at providing the broadest possible protection in terms of personal coverage, risk coverage and an adequate level of compensation for loss of income and medical care Aim to strengthen social cohesion by promoting solidarity between active and non-active members of society, between rich and poor and between present and future generations, and a common approach to social risks by: – basing social security systems on organizational principles such as risk pooling and collective financing by the members of the community, and – guaranteeing a minimum level of protection sufficient to maintain the family of the beneficiary in health and decency and to fulfill the income replacement function of benefits

ILO social security standards: a normative framework held together by a unique set of common aims and principles underpinning the social security system These organizational principles must be complemented by the no less fundamental principles of governance: – Supervision by a public authority – Participatory management employers and workers – Strong role of employers and workers, also those outside of wage employment, whose contributions and taxes represent the largest share of social security revenues; – General responsibility of the State for the due provision of benefits (financial sustainability, right to complain and appeal) and for the proper administration of the institutions and services concerned (enforcement and compliance)

C102: A landmark Social Security (Minimum Standards) Convention, 1952 (No. 102)  Over the years, has had substantial influence on the development of social security in the various regions of the world  Deemed to embody an internationally accepted definition of the very principle of social security and of its material scope (contingencies covered)  First ILO social security standards to establish targets, instead of techniques: sets quantitative standards of basic protection and statistical requirements as to the minimum coverage of the population and the rate of benefits  Thereby it gives a yardstick for measuring the extent to which existing national systems reach or exceed the prescribed level  It foresees a unified and coherent system, under the responsibility of the State 22

 Defines the nine branches of social security:  medical care benefit  sickness benefit  unemployment benefit  old-age benefit  employment injury benefits  maternity benefit  family benefit  invalidity benefit  survivors’ benefit 23 Convention No. 102

 Sets minimum standards for the nine branches:  Minimum percentage of personal coverage;  Minimum level of benefits  Maximum qualifying period for the entitlement to benefits;  Minimum duration of benefits 24 Convention No. 102

25 Minimum standards Branches C. No. 102 C. No. 102 Benefit Conditions Duration of Benefit Coverage of persons Sickness Benefit 45 % To preclude abuse 26 weeks / sickness 50% of all employees or 20% of all residents, or all residents whose means do not exceed certain limits Unemployment Benefit 45 % To preclude abuse 13 weeks/12 months 50% of all employees, or all residents whose means do not exceed certain limits Old-Age Benefit 40 % 30 years Throughout contingency 50% of all employees or 20% of all residents, or all residents whose means do not exceed certain limits Employment Injury Benefits Short term disability Permanent disability Death of the breadwinner 50 % Throughout contingency 50 % No qualifying period allowed 45 % 50% of all employees, and their widows and children in case of death of the breadwinner through an employment injury Maternity Benefit Family Benefit 3% or 1,5% To preclude abuse Throughout contingency 45 % To preclude abuse Min. 12 weeks 50% of all employees or 20% of all residents, or all residents whose means do not exceed certain limits Women of classes of employees constituting not less than 50% of all employees or 20% of all residents, Invalidity Benefit40 % 15 years Throughout contingency or until old– age pension 50% of all employees or 20% of all residents, or all residents whose means do not exceed certain limits Survivors’ Benefit 40 % 15 years Throughout contingency Wives and children of 50% of all employees, or 20% of all residents, or all resident wives and children whose means do not exceed limits C102: Cash benefits

 Built on the basis that there is not a unique model for social security:  National social security systems should reflect each country’s social and cultural values, its history, in accordance with existing institutions and level of economic development  C.102 includes several flexibility clauses to allow as many countries as possible to fulfill its provisions and progressively extend their system towards comprehensive coverage  Offers states the possibility of ratifying by accepting at least three of the nine branches and of subsequently accepting obligations under other branches, thereby allowing them to progressively attain all the objectives set out in the convention  States can also apply temporary exceptions and ratify by covering a lower percentage of the population than required and providing benefits for a shorter period, for a temporary period 26 Convention No. 102

C102 can be applied by:  general and occupational schemes, compulsory and voluntary insurance, public and private tiers into the mix of protective measures suited to needs  contributory (e.g. social insurance) schemes or non-contributory (tax- financed) schemes, whether means tested, universal or other, or a combination of different types of schemes Cash benefits can be provided :  As a percentage of the beneficiary’s former earnings, with a possible ceiling on “insurable earnings” or on the benefit  As a flat rate amount, calculated as  a percentage of earnings of a “standard beneficiary”, representative of the majority of the persons protected (social insurance schemes) or  at a level necessary to maintain the beneficiary and dependants in health and decency 27 Convention No. 102

Based on commonly agreed social security principles:  Guarantee of defined benefits  Periodicity of cash benefits  Participation of protected persons in administration of social security and employers, as the case may be  General responsibility of the State for:  Due provision of benefits; and  Proper administration of institutions and services (e.g. through appropriate implementation and enforcement mechanisms and regular actuarial reviews)  Collective financing  Adjustment of pensions in payment  Suspension of entitlement should be restricted to cases listed  Right of appeal in case of refusal or complaint as to its quality or quantity  Equality of treatment 28 Convention No. 102

The other up-to-date Conventions set higher levels of protection (e.g. personal coverage and levels of benefits) than C.102 for the respective branches of social security :  Employment Injury Benefits Convention, 1964 (No.121)  Invalidity, Old-Age and Survivors’ Benefits Convention (No.128)  Medical Care and Sickness Benefits Convention, 1969 (No.130)  Employment Promotion and Protection against Unemployment Convention, 1988 (No.168)  Maternity Protection Convention, 2000 (No.183) 29 Other Conventions

 Medical care:  Convention No. 102: provides for preventive care, general practitioner care, including home visits, specialist care, essential pharmaceutical supplies as prescribed, prenatal, confinement and postnatal care by medical practitioners or qualified midwives, and hospitalization where necessary;  Convention No. 130: provides the same benefits as Convention No. 102, plus dental care and medical rehabilitation.  Sickness benefit:  Convention No. 102: periodical payments, corresponding to at least 45% of the reference wage;  Convention No. 130: periodical payments, corresponding to at least 60% of the reference wage. Also provides for funeral expenses in case of death of the beneficiary. 30 Minimum and higher standards

 Unemployment benefit:  Convention No. 102: periodical payments, corresponding to at least 45% of the reference wage;  Convention No. 168: periodical payments, corresponding to at least 50% of the reference wage. Beyond the initial period, possibility of applying special rules of calculation. Nevertheless, the total benefits to which the unemployed may be entitled must guarantee them healthy and reasonable living conditions in accordance with national standards.  Old-age benefit:  Convention No. 102: periodical payments, corresponding to at least 40% of the reference wage. The rates of relevant benefits must be revised following substantial changes in the general level of earnings and /or the cost of living;  Convention No. 128: periodical payments, corresponding to at least 45% of the reference wage. Same conditions as Convention No. 102 relating to the revision of rates. 31 Minimum and higher standards

 Employment injury benefit:  Convention No. 102: medical care, periodical payments corresponding to at least 50% of the reference wage in cases of incapacity for work or invalidity. Benefits for widow and dependent children in case of death of breadwinner with periodical payments corresponding to at least 40% of the reference wage. Possibility of converting periodical payments into lump sums. Except in the case of incapacity for work, obligation to revise the rates of periodical payments following substantial changes in the cost of living;  Convention No. 121: plus certain types of care at the place of work. Periodical payments, corresponding to at least 60% of the reference wage in cases of incapacity for work or invalidity, benefits for widow, the disabled and dependent widower, and dependent children in case of death of breadwinner, with periodical payments corresponding to at least 50% of the reference wage. Obligation to prescribe minimum amount for these payments, possibility of converting payments into a lump sum under certain conditions, and supplementary benefits for disabled persons requiring the constant help of a third person. 32 Minimum and higher standards

 Family benefit:  Convention No. 102: provides either periodical payments or the provision of food, clothing, housing, holidays or domestic help, or a combination of these;  No higher standard  Maternity benefit:  Convention No. 102: medical care including at least prenatal, confinement and postnatal care either by medical practitioners or by qualified midwives and hospitalization where necessary; periodical payments, corresponding to at least 45% of the reference wage;  Convention No. 183: medical benefits including prenatal, childbirth and postnatal care, as well as hospitalization care when necessary; cash benefits to ensure that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living. At least two-thirds of previous earnings or comparable amount. 33 Minimum and higher standards

 Invalidity and Survivors’ benefit:  Convention No. 102: periodical payments, corresponding to at least 40% of the reference wage; the rates of relevant benefits must be revised following substantial changes in the general level of earnings and/or in the cost of living;  Convention No. 128: periodical payments corresponding to at least 50% (invalidity benefit) / 45% (survivors’ benefit)of the reference wage; the rates of relevant benefits must be revised following substantial changes in the general level of earnings and/or in the cost of living. Obligation to provide rehabilitation services and to take measures to further the placement of disabled persons in suitable employment (invalidity benefit). 34 Minimum and higher standards

Applying ILO’s standards All parameters of the social security schemes for which ILO standards make provision need to be specified in the law All the overarching principles stated in the Convention need to be given legal effect too Not only in general legal provisions but also in detailed implementing legislation, establishing administration and financial management, delivery mechanisms, complaints and appeals procedures, enforcement and compliance mechanisms, etc. But equally important is that the legal provisions must be effectively applied, in practice.

49 ratifications of C102, August

37 Albania (2006) Austria (1969) Barbados (1972) Belgium (1959) Bolivia (1977) Bosnia and Herzegovina (1993) Brazil (2009) Bulgaria (2008) D. R. Congo (1987) Costa Rica (1972) Croatia (1991) Cyprus (1991) Czech Rep. (1993) Denmark (1955) Ecuador (1974) France (1974) Germany (1958) Greece (1955) Honduras (2012) Iceland (1961) Ireland (1968) Israel (1955) Italy (1956) Japan (1976) Libya (1975) Luxembourg (1964) Macedonia (1991) Mauritania (1968) Mexico (1961) Montenegro (2006) Netherlands (1962) Niger (1966) Norway (1954) Peru (1961) Poland (2003) Portugal (1994) Romania (2009) Senegal (1962) Serbia (2000) Slovakia (1993) Slovenia (1992) Spain (1988) Sweden (1953) Switzerland (1977) Turkey (1975) Togo (2012) United Kingdom (1954) Uruguay (2010) Venezuela (1982) 49 ratifications of C102, Sept 2012

Why ratify ILO’s standards, especially C102? Path to decent work, poverty reduction, contribution to MDGs  Once ratified, implemented through law and applied in practice, C.102 can contribute to decent work and poverty alleviation by providing for adequate minimum levels of benefits for the nine classical social security contingencies which are designed to guarantee the replacement of former earnings as well as access to medical care. Tool for policy and legal action  Since its adoption C.102 has had and continues to have a strong influence on the design and development of formal social security systems worldwide; more than 50 years after its adoption, it still constitutes the reference for the establishment and reform of social security systems globally and is thus considered as a symbol 38

Social security frameworks act as social and economic stabilizers in times of crisis  The social impact of financial and economic crises on workers and their families can be mitigated by social security, notably income replacement measures, i.e. unemployment benefit scheme and cash transfers which act as safeguards against poverty and health care protection.  By ratifying C. 102, a country undertakes to implement minimum social security standards through a legal framework; this ensures that the levels of social security provided in compliance with C.102 are maintained at all times.  C. 102 therefore acts as a powerful tool for the maintenance of worldwide agreed minimum standards of social security at the national level (and therefore preserving decent standards of living and the health of its people) and for preventing countries from backsliding and suffering from long-term social consequences of the crisis. 39 Why ratify ILO’s standards, especially C102?

 A tool for the progressive implementation of social security and the vertical extension of coverage  C. 102 provides ratifying countries with an incentive for doing so by offering flexibility in its application, depending on the socio-economic level of the countries.  A guarantee of State responsibility for the proper administration of social security and the provision of regular and sustainable benefits  Thus ratification and application of Convention No. 102 will enhance the confidence of persons protected in the social security system and in the national social security administration in general.  A guarantee of priority technical assistance  When a Convention ratified, state parties benefit on a priority basis from ILO experience in the field of social protection and from technical assistance, including policy advice and actuarial studies, collection of data, drafting of legislation, etc.; 40 Why ratify ILO’s standards, especially C102?

References Basic documents  Constitution of the International Labour Organisation,  Standing Orders of the International Labour Conference, ILO social security Conventions (available on  Social Security (Minimum Standards) Convention, 1952 (No. 102)  Equality of Treatment (Social Security) Convention, 1962 (No. 118)  Employment Injury Benefits Convention, 1964 (No. 121)  Invalidity, Old-Age and Survivors’ Benefits Convention, 1967 (No. 128)  Medical Care and Sickness Benefits Convention, 1969 (No. 130)  Maintenance of Social Security Rights Convention, 1982 (No. 157)  Employment Promotion and Protection against Unemployment Convention, 1988 (No.168)  Maternity Protection Convention, 2000 (No. 183) 41

ILO social security Recommendations (available on  Income Security Recommendation, 1944 (No. 67)  Medical Care Recommendation, 1944 (No. 69)  Employment Injury Benefits Recommendation, 1964 (No. 121)  Invalidity, Old-Age and Survivors’ Benefits Recommendation, 1967 (No. 131)  Medical Care and Sickness Benefits Recommendation, 1969 (No. 134)  Maintenance of Social Security Rights Recommendation, 1982 (No. 167)  Employment Promotion and Protection against Unemployment Recommendation, 1988 (No.176)  Maternity Protection Recommendation, 2000 (No. 191)  Social Protection Floors Recommendation, 2012 (No. 202) 42 References

Key ILO publications (available at The ILO’s social security strategy:  Social Security for All – The Strategy of the International Labour Organization, Resolution and conclusions concerning the recurrent discussion on social protection (social security), adopted at the 100th Session of the International Labour Conference, ILO, Geneva, 2011 ILO social security standards:  Social Security and the Rule of Law, General Survey concerning social security instruments in light of the 2008 Declaration on Social Justice for a Fair Globalization, Report of the Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22 and 35 of the Constitution), Report II (Part IB), International Labour Conference, 100 th session, 2011, ILO, Geneva, 2011  Setting Social Security Standards in a Global Society, An analysis of present state and practice and of future options for global social security standard setting in the ILO, Social Security Policy Briefings No.2, ILO, Geneva, 2008  Standards for the XXIst century – Social security, ILO; Geneva, References