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1989, Social Security Protection in Old-Age: Chapter II. ScopeDescription:(General Survey) Convention:C102 Convention:C128 Recommendation:R131 Subject classification: Social Security Subject classification: Old-age, Invalidity and Survivors Benefit Document:(Report III Part 4B) Session of the Conference:76 Subject: Social Security Display the document in: French Spanish Document No. (ilolex): 251989G04 Chapter II. Scope I. Persons covered 1. International standards 51. In order to maintain a degree of flexibility, both Convention No. 102 and Convention No. 128 avoid defining protected persons in terms of strictly legal concepts. Rather than define their scope in terms of branches of economic activity and the legal position of persons working in the sectors concerned, as was the practice in Conventions adopted before the war, (Endnote 1) these instruments largely refer to statistical criteria and offer governments a choice of alternatives. Thus, both Article 27 of Convention No. 102 and Article 16 of Convention No. 128 lay down three criteria according to which their scope may be defined by reference to employees, or the economically active population, or residents. The choice of criteria is left to the States. 52. If the criterion of employees is applied, under Article 27(a) of Convention No. 102, the persons protected must comprise prescribed classes of employees constituting not less than 50 per cent of all employees, while under Article 16, paragraph 1(a), of Convention No. 128 all employees, including apprentices, must be covered. (Endnote 2) If the criterion of the active population is applied, the persons protected must comprise prescribed classes of the economically active population constituting not less than 20 per cent of all residents, under Article 27(b) of Convention No. 102, and not less than 75 per cent of the whole economically active population, (Endnote 3) under Article 16, paragraph 1(b), of Convention No. 128. Paragraph 2(b) of Recommendation No. 131, on the other hand, advocates the extension of protection to all economically active persons. (Endnote 4) Lastly, the application of the third criterion, referring to residents, both under Article 27(c) of Convention No. 102 and Article 16, paragraph 1(c), of Convention No. 128, requires protection of all residents whose means during the contingency do not exceed limits prescribed in such a manner as to comply with the relevant provisions of these Conventions. 53. Article 1(b) of Convention No. 102 and Article 1(d) of Convention No. 128 define the term "resident" as a person ordinarily resident in the territory of the Member. The term "ordinarily" is used in order to exclude persons who are only occasionally or temporarily in the territory of the Member. It should also be noted that the definition of the term "resident" draws no distinction between nationals and non-nationals, so that the application of clause (c) of Article 27 of Convention No. 102 or clause (c) of paragraph 1 of Article 16 of Convention No. 128 necessarily implies protection of non-national residents, or at least those whose means do not exceed the limits prescribed. (Endnote 5) As regards the question of whether the term "resident" covers non-nationals who are not lawfully resident, which was raised by one government, (Endnote 6) it should be recalled that Article 6 of the Migration for Employment Convention (Revised), 1949 (No. 97), which lays down the principle of equal treatment in respect of social security, inter alia, applies to immigrants who are lawfully within the country's territory. (Endnote 7) This approach was upheld by the Conference in 1975, with the adoption of the Migrant Workers (Supplementary Provisions) Convention (No. 143). (Endnote 8) The Committee therefore considers that the term "resident" is intended by Conventions Nos. 102 and 128 to be read as including only those non-nationals who are lawfully resident in the country of immigration. (Endnote 9) 54. The concept of the economically active population, on the other hand, is defined neither in Convention No. 102 nor in Convention No. 128. However, according to international recommendations concerning labour statistics, this term comprises both the employed and the unemployed. (Endnote 10) Flexibility clauses 55. By referring to statistical criteria for defining their scope and by offering States a choice of options, the Conference aimed for sufficient flexibility when drafting its instruments. This objective was also furthered by including a number of provisions allowing exceptions, most of which are temporary. Temporary exceptions 56. One of the first clauses allowing temporary exceptions concerns developing countries. When Convention No. 102 was adopted, it was realised that some of its provisions, particularly those concerning its scope, might be too stringent for the developing countries to comply with them in the near future. (Endnote 11) This is why Article 3, paragraph 1, of the Convention allows States whose economy is "insufficiently developed" to avail themselves, by a declaration appended to their ratification, of the temporary exceptions provided for in certain Articles of the Convention, including Article 27(d) as far as scope is concerned, in relation to Part V relating to old-age benefit. Under this provision, the persons protected must comprise, "where a declaration made in virtue of Article 3 is in force, prescribed classes of employees, constituting not less than 50 per cent of all employees in industrial workplaces employing 20 persons or more". Convention No. 128 has maintained and extended the possibility for States "whose economy is insufficiently developed" to avail themselves of temporary exceptions (Article 4). Thus, Article 16, paragraph 2, offers the following alternative to States which have made a declaration in virtue of Article 4: protected persons must comprise either (a) prescribed classes of employees, constituting not less than 25 per cent of all employees; or (b) prescribed classes of employees in industrial undertakings, constituting not less than 50 per cent of all employees in industrial undertakings. (Endnote 12) As the exceptions allowed to developing countries are temporary under the above-mentioned provisions of Conventions Nos. 102 and 128, paragraph 3 of Article 4 of Convention No. 128 states expressly that each member which has availed itself of such a clause must increase the number of employees protected as circumstances permit. Moreover, under Article 3, paragraph 2, of Convention No. 102 and Article 4, paragraph 2, of Convention No. 128, each member which has availed itself of such temporary exceptions when ratifying the Conventions must state in its reports on the application of the instrument concerned either that the reason for its decision subsists or that it renounces the right to avail itself of the exception. 57. The Office had originally suggested that Convention No. 128 could be ratified separately for agricultural and non-agricultural activities, but the principle of global ratification subsequently prevailed in discussions at the Conference. (Endnote 13) However, in order to take into account the technical, administrative and financial problems which could arise in the extension of social security to agriculture, a compromise solution was reached in Article 38, paragraph 1, of the Convention, which provides that any State "whose legislation protects employees may, by a declaration accompanying its ratification, temporarily exclude from the application of this Convention the employees in the sector comprising agricultural occupations who are not yet protected by its legislation at the time of the ratification". Thus, States whose legislation protects employees may avail themselves of this provision. However, as the exception only applies to categories of agricultural employees who were not yet protected at the time of the ratification, it cannot be applied to categories already protected by legislation, but whose protection is inadequate. (Endnote 14) This exception being a temporary one, States are required under paragraph 3 of Article 38 to increase the number of employees protected in the agricultural sector to the extent and with the speed that the circumstances permit. In addition, they are bound under paragraph 2 of the same Article to indicate in their reports on the application of the Convention any measures taken or envisaged to give effect to the provisions of this instrument in respect of such employees and to furnish appropriate explanations if there is no change to report. Other exceptions and exclusions 58. Under Article 37 of Convention No. 128, certain categories of workers may be excluded from its application if employees are protected by legislation. The following persons may be excluded under the terms of this provision: (a) persons whose employment is of a casual nature; (b) members of the employer's family living in his house in respect of their work for him; (c) other categories of employees, which shall not exceed in number 10 per cent of all employees other than those in the above-mentioned categories. While the first two exclusions refer to specific categories of workers who are often excluded from social security schemes applicable to employees, the third, on the other hand, allows exclusion of any category of workers, provided that they do not exceed the percentage indicated. 59. As already noted, many countries have special old-age schemes for public servants and seafarers. It is in order to take account of the particular features of such schemes that Article 39 of Convention No. 128 provides for the possibility of excluding these categories of workers from its application where they are protected "by special schemes which provide in the aggregate benefits at least equivalent" to those required by this instrument. Thus a State can only avail itself of paragraph 1 of Article 39 if certain conditions are met regarding the extent of protection offered by special schemes. Moreover, the decision to exclude seafarers, including sea fishermen, and/or public servants must be taken at the time of ratification, in the form of a declaration accompanying ratification. (Endnote 15) As for Convention No. 102, by virtue of Article 77 it applies neither to seamen nor to sea fishermen. (Endnote 16) However, it contains no specific provision for exception as regards public servants, agricultural workers or other categories of workers, such as members of the employer's family or casual employees. On the other hand, Convention No. 102 sets far lower standards for its scope than those of Convention No. 128, and in most cases it should be possible to achieve the percentages prescribed in subparagraphs (a) and (b) of Article 27 of Convention No. 102 without having to take these categories of workers into account. 2. National situations 60. In the vast majority of developing countries, coverage under old-age protection schemes is based on the existence of an employment relationship. (Endnote 17) The legislation applies to workers or employees in an employment relationship or working under an employment contract or to persons undertaking to place their occupational activity, in exchange for remuneration, under the authority of another person or a legal entity. This last formula is often used by the French-speaking African countries, whose social security legislation refers to the Labour Code for a definition of the term "employees". 61. In some of these countries, (Endnote 18) however, old-age protection is often limited to persons working in enterprises employing a prescribed number of workers, or in those where the total wages paid exceed a certain amount. Moreover, the legislation often excludes certain occupational categories from its scope or refers to implementing provisions concerning which it is not always clear from the available information whether or not they have actually been adopted. In some countries, this is true of agricultural workers, (Endnote 19) domestic workers, (Endnote 20) homeworkers (Endnote 21) and family workers, (Endnote 22) as well as casual, (Endnote 23) temporary, (Endnote 24) seasonal workers (Endnote 25) or when the earnings are below a prescribed minimum. (Endnote 26) However, there seems to have been a tendency in the past to extend compulsory protection gradually to these categories. (Endnote 27) In some Latin American countries, coverage has expanded in geographical terms, with the social security scheme being gradually extended to the entire country. (Endnote 28) Coverage may also be extended by stages to certain establishments; thus, one country reduced the minimum number of employees required for an enterprise to be covered by social insurance from 100 to 20 workers. (Endnote 29) It should be noted that even if the legislation does not provide expressly for the exclusion of certain categories of workers, difficulties stemming from the definition of the term "employees" may arise in practice. This type of problem also occurs in certain countries of French-speaking Africa, particularly in the case of persons hired on a subcontracting basis. 62. The extension of old-age protection to the self-employed allows the economically active population as a whole to be covered. Industrialised countries achieved this some years ago at least to a great extent. In an increasing number of developing countries, legislation protects the self-employed in addition to employees. (Endnote 30) The extent to which self-employed persons have been integrated in national social security schemes varies from one country to another. (Endnote 31) In this respect, one government has stated that it is currently considering the question of coverage of farmers and fishermen, who make up most of the economically active population. (Endnote 32) In some countries, the legislation excludes self-employed persons earning a low income or offers them the option not to affiliate. (Endnote 33) 63. A variety of methods have been adopted to provide protection for the self-employed. In some countries they are covered by the general scheme applicable to employees, (Endnote 34) often with certain special arrangements. In others, the self-employed have their own special scheme. (Endnote 35) In still other countries, they are included in various special schemes according to their occupational category. (Endnote 36) More rarely, some categories of self-employed persons are covered by a special scheme, while others are included in the general scheme. (Endnote 37) 64. In many countries with centrally planned economies, where there are fewer self-employed persons because of the socio-economic structure, there is a main scheme for employees. (Endnote 38) In some of these countries, the scheme also applies to other categories. (Endnote 39) Protection can thus be afforded under the scheme to members of production co-operatives, the liberal professions, artists, journalists and architects, students and agricultural workers, as the case may be. Other countries have adopted special schemes for workers employed in certain sectors, such as the railways and mining, or for certain occupational categories. (Endnote 40) In many countries, the collectivisation of agriculture has resulted in special pension funds being set up for members of collective farms or agricultural co-operatives. (Endnote 41) 65. Lastly, a number of countries have an old-age protection system designed to cover the entire population. (Endnote 42) In most cases, protection covers both national and foreign residents. (Endnote 43) In one country, however, the scheme mentioned by the Government as giving effect to the provisions of the instruments under consideration appears to apply only to nationals. (Endnote 44) In some countries, benefits are paid to residents irrespective of their means. (Endnote 45) In others, on the other hand, benefits, or a part of them, may be reduced if the income or property of the beneficiary exceeds prescribed limits. (Endnote 46) Under these schemes, the amount of benefit does not generally depend on the occupational earnings of the person concerned, (Endnote 47) but many countries have adopted legislation instituting a complementary pension scheme or a pension supplement, the amount of which depends on the income earned during the pensioner's working life. (Endnote 48) Such complementary schemes usually cover the economically active population. In one country the amount of supplementary benefit which only covers employees depends on the period of insurance, and not on previous earnings. (Endnote 49) 3. Evaluation 66. First of all, it is encouraging to note that coverage under old-age schemes has tended to increase since the last general survey carried out in 1961. In the great majority of industrialised countries, provision has been made either for coverage of all residents, or for a gradual extension of protection to all economically active persons, as advocated in Paragraph 2 of Recommendation No. 131. An extension of coverage under old-age protection schemes to categories of workers who are still excluded, on the one hand, and to self-employed persons, on the other, has also been achieved by some developing countries, although the rate of improvement seems to have slowed in recent years. Moreover, some governments have stated that their objective was to cover the entire economically active population, (Endnote 50) and a number of developing countries have also made provision in their legislation for the principle of subsequent extension of social security to the self-employed. (Endnote 51) This progress should not, however, obscure the fact that in many countries some occupational categories, in particular the self-employed, are not yet protected. Moreover, in the developing countries the extension of social security to agricultural workers runs up against administrative difficulties, such as those involved in setting up a system for registering beneficiaries and financing problems which are compounded by the fact that self-employed workers in the agricultural sector far exceed those in employment. Lastly, in several developing countries, public servants are the only workers covered by a pension scheme. 67. Conventions Nos. 102 and 128 refer to statistical criteria for determining their scope. This is why, in accordance with Article 76, paragraph 1(b), of Convention No. 102, (Endnote 52) the report form for this instrument, which was approved by the Governing Body in accordance with article 22 of the Constitution, requests governments to supply certain statistics relating to persons protected. A request for statistical information has also been included in the report form for Convention No. 128 and in the form adopted for these instruments by the Governing Body under article 19 of the Constitution. However, international comparison is not the only purpose of compiling statistical information. An efficient system for gathering statistics is an invaluable and indispensable tool providing the national authorities with access to important information on the way in which their social security scheme operates in practice, enabling them to draw on their experience in the future. As regards coverage in particular, keeping statistics in this field should help social security bodies to verify whether all of the persons covered by social security legislation are in fact protected in practice. In this context, the Committee, while fully aware of the difficulties encountered by some governments, can only note that the reports sent by most States which have ratified neither Convention No. 102 nor No. 128 do not contain all of the statistics requested which are necessary in order to assess the extent to which effect is given to the provisions of these instruments as regards their scope; either the reports contain no statistics, or those supplied are incomplete. 68. The provisions concerning scope do not appear to have given rise to difficulties for those States which have ratified Conventions Nos. 102 and 128, except, in certain cases, (Endnote 53) for which the Committee has demanded additional information, in particular the statistics requested in the report from. It is important, therefore, that the statistics concerning the scope of the national social security scheme are communicated on a regular basis. In some of these countries, protection schemes cover all residents, in principle, in accordance with Article 27(c) of Convention No. 102 and Article 16, paragraph 1(c), of Convention No. 128. (Endnote 54) For the other countries a distinction should be drawn between those bound by Convention No. 102 and those for which Convention No. 128 is in force. 69. Some of the States for which Part III of Convention No. 128 is in force have supplied statistics indicating that the protection scheme covers all or nearly all employees (although other categories of economically active persons are also covered), in accordance with Article 16, paragraph 1(a), of Convention No. 128, read in conjunction with Article 37, which allows certain categories of employees to be excluded. (Endnote 55) In other countries, around 75 per cent of the entire economically active population are protected. (Endnote 56) Lastly, three countries availed themselves at the time of ratification, of the temporary exceptions provided for by paragraph 2 of Article 16, and in particular subparagraph (a), according to which the persons protected must comprise at least 25 per cent of all employees, as well as Article 38, which allows a temporary exclusion of employees in the agricultural sector. (Endnote 57) Only one country availed itself of the possibility under Article 39, paragraph 1(b), of excluding public servants from the application of the Convention where these categories are protected by special schemes providing benefits at least equivalent to those required by this instrument. (Endnote 58) 70. As for the countries which have ratified Convention No. 102, many of them have adopted a social security system which, according to available statistics, covers all or the vast majority of employees, with protection usually including other categories of the economically active population. (Endnote 59) In other countries, the number of employees covered is more limited, while exceeding the standards provided for by subparagraph (a) of Article 27 of the Convention. (Endnote 60) Lastly, one country availed itself at the time of ratifying the Convention of the temporary exception provided for in subparagraph (d) of Article 27 of the Convention. (Endnote 61) 71. Among the countries for which neither Part V of Convention No. 102 nor Part III of Convention No. 128 are in force, several have adopted old-age protection schemes which, in line with the provisions of Article 27(c) of Convention No. 102 and Article 16, paragraph 1(c), of Convention No. 128, apply to all residents or to those whose means do not exceed the prescribed limits, (Endnote 62) although in one country, (Endnote 63) only nationals are protected. Moreover, the few statistics available show that, in one country, all employees are covered by the old-age insurance system in accordance with Article 16, paragraph 1(a), of Convention No. 128. (Endnote 64) It would be the same in another country according to the statistics communicated by the Government. (Endnote 65) In several countries, protected persons comprise the entire economically active population, in principle, (Endnote 66) or, in any case, they exceed the percentage prescribed by Article 16, paragraph 1(b), of Convention No. 128. (Endnote 67) In one country national statistics indicates that the percentage of the economically active population protected has virtually reached the level prescribed by Article 27(b) of Convention No. 102. (Endnote 68) As for the remaining countries, many have stated that their legislation applies in principle to the entire economically active population or to all employees without, however, supplying sufficient statistics to enable an assessment to be made of the extent to which the legal provisions governing old-age protection coverage are put into practice. In most of these cases, it should be possible to consider the national situation as at least meeting the requirements as to coverage laid down in Convention No. 102, since the standard it prescribes in this respect is relatively low, although some difficulties may arise in particular in countries where old-age protection schemes only cover certain categories of establishment or have not yet been extended throughout the country. At all events, the Committee must emphasise that it is for the States which ratify Convention No. 102 or Convention No. 128 and accept the parts relating to old-age benefits to supply the necessary statistical information indicating that they comply with the requirements laid down in Article 27 of Convention No. 102 or Article 16 of Convention No. 128. (Endnote 69) In this respect, it considers useful to recall that States may request technical assistance in this area from the ILO. Moreover, the Committee would also recall that Conventions Nos. 102 and 128 contain various clauses allowing exceptions as regards coverage, aimed at facilitating acceptance and application of the parts relating to old-age benefit. 72. More specifically as regards Article 39 of Convention No. 128, which allows seafarers and public servants to be excluded where these categories enjoy at least equivalent protection, it appears from the information available that the special schemes applicable to public servants generally provide more favourable old-age benefits than those granted under general schemes. (Endnote 70) The same is true to a great extent of seafarers. (Endnote 71) II. Period of application 73. In line with the general principle according to which international laws and treaties do not apply retroactively, both Convention No. 102 and Convention No. 128 apply only to contingencies which occur after the coming into force of the relevant part of the Convention for the Member concerned (Article 73(a) of Convention No. 102 and Article 43(a) of Convention No. 128). A corollary of this principle is that the Conventions do not apply to benefits in contingencies occurring after the coming into force of the relevant part of the Convention for the Member concerned in so far as the rights to such benefits are derived from periods preceding that date (Article 73(b) of Convention No. 102 and Article 43(b) of Convention No. 128). However, Article 29, paragraph 5, of Convention No. 102 and Paragraph 8 of Recommendation No. 131 provide for certain transitional measures for persons who, in view of their advanced age at the time of implementation of the social insurance scheme, are unable to benefit from the protection provided for by legislation.
EndnotesEndnote 1Under Article 2, paragraph 1, of Convention No. 35 mentioned above, compulsory old-age insurance applies to manual and non-manual workers, including apprentices, employed in industrial or commercial undertakings or in the liberal professions, and to outworkers and domestic servants. Article 2, paragraph 1, of Convention No. 36 contains an analogous provision for agricultural workers. Periodical reports on the application of Conventions Nos. 35 to 40 to the 40th Session of the International Labour Conference (1957) indicated that certain countries having old-age, invalidity and survivors' benefit schemes refrained from ratifying the Conventions because these schemes exclude certain categories of workers to whom the Conventions apply. However, see above, para. 58. Note that the criterion relating to the economically active population laid down in Convention No. 128 is expressed in terms of a percentage of the economically active population, while Convention No. 102 refers to a percentage of all residents; in the first case, however, the proportion is 75 per cent, while in the second it is only 20 per cent. Paragraph 2(a) of Recommendation No. 131 concerns the gradual extension of benefit, including old-age benefit, to persons whose employment is of a casual nature. The fact that Convention No. 128, unlike Convention No. 102, contains no provision concerning equal treatment for non-national residents is immaterial. In this regard, see ILO: Revision of Conventions Nos. 35, 36, 37, 38, 39 and 40 concerning old-age, invalidity and survivors' pensions, Report IV(2), ILC, 51st Session, 1967, p. 13. Australia. Article 6, paragraph 1(b), of Convention No. 97 stipulates that "each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality ..., to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters: ... (b) social security ...". Part II of Convention No. 143, which concerns equality of opportunity and treatment, provides in Article 10 that "Each Member for which the Convention is in force undertakes to declare and to pursue a national policy designed to promote and guarantee, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect ... of social security, ... for persons who as migrant workers or as members of their families are lawfully within its territory." In its General Survey of 1977 relating to the Equality of Treatment (Social Security) Convention, 1962 (No. 128), the Committee pointed out that "a requirement of lawful residence in the country or of lawful authorisation to be in employment does not appear to be contrary to this principle; where such conditions are imposed the difference in treatment does not appear to be motivated by the alien status of the persons concerned but rather by their legal position under regulations governing entry into and residence in the country, or access to employment." (para. 57, p. 20). See, inter alia, ILO: Resolution I concerning statistics of the economically active population, employment, unemployment and underemployment, 13th International Conference of Labour Statisticians, Geneva, 1982, paras. 5 to 10. See also the report forms for Conventions Nos. 102 and 128 approved by the Governing Body of the ILO in accordance with art. 22 of the Constitution. See Record of Proceedings, ILC, 34th Session, Geneva, 1951, Report of the Committee on Social Security, p. 587, para. 42. Article 1(c) of Convention No. 128 stipulates that "the term "industrial undertaking" includes all undertakings in the following branches of economic activity: mining and quarrying; manufacturing; construction; electricity, gas, water and sanitary services; and transport, storage and communication". See in particular Record of Proceedings, ILC, 51st Session, Geneva, 1967, First Report of the Committee on Social Security, p. 689, para. 13. See in particular Record of Proceedings, ILC, 51st Session, Geneva, 1967, First Report of the Committee on Social Security, p. 699, para. 89. Paragraph 2 of Article 39 of Convention No. 128 specifies that, where a declaration under paragraph 1 of the same Article is in force, the State "may exclude the persons belonging to the category or categories excluded from the application of the Convention from the number of persons taken into account when calculating the percentages specified in ... paragraph 2, subparagraph (b), of Article 16". According to paragraph 3 of Article 38, States may subsequently reverse their decision by notifying the Director-General of the ILO. Paragraph 2 of Article 77 of Convention No. 102 provides that States may "exclude seamen and sea fishermen from the number of employees, of the economically active population or of residents, when calculating the percentage of employees or residents protected in compliance with any of Parts II to X covered by its ratification". For example: Belize (Social Security Ordinance 1979, s. 3); Benin (Ordinance No. 73-3 to provide for the establishment and organisation of the Benin Social Security Fund, 1973, s. 2, and Labour Code, s. 3); Bolivia (Social Security Code of 1956, s. 6); Burundi (Legislative Decree No. 1/17 of 1981 respecting the reform of the general social security scheme, s. 3, and Labour Code (ss. 3 and 4)); Cameroon (Law of 1969 instituting old-age, invalidity and survivors' pension insurance, s. 2, and Labour Code, s. 1); Equatorial Guinea (Social Security Act 1984, s. 7, and transitional provision No. 1); Honduras (Social Insurance Act, s. 3); Iraq (s. 3 of Act No. 39 of 1971 respecting workers' pensions and social security, read in conjunction with s. 2 of the Workers' Pensions and Social Security Law, No. 112 of 1979); Mali (Social Insurance Code, ss. 2 and 151); Nicaragua (Social Security Act 1982, s. 5, and government report); Panama (Legislative Decree No. 14 of 1954 amending Act No. 134 of 1943 establishing the Social Insurance Fund, s. 2); Saint Lucia (National Insurance Act 1978, s. 25); Senegal (Decree No. 75-455 of 1975, s. 5). For example: Iraq (Ordinance No. 599 of 1978); Jordan (government report); Pakistan (Employees' Old-Age Benefits Act, 1976, s. 1.4.i.). For example: Bolivia (Social Security Code of 1956, s. 253); Colombia (under s. 1 of Agreement No. 224 of 1966, agricultural workers employed in non-mechanised enterprises are governed by implementing regulations); Panama (under s. 4(f) of Legislative Decree No. 14 of 1954 amending Act No. 134 of 1943 establishing the Social Insurance Fund, only agricultural workers employed for over six months are members of the social insurance scheme). For example: Bolivia (Social Security Code of 1956, s. 253); Iraq (s. 3 of the Workers' Pensions and Social Security Law, No. 39 of 1971, read in conjunction with s. 3(f) of the Workers' Pensions and Social Security Law, No. 112 of 1969); Jordan (government report); Nicaragua (according to information supplied by the Government, domestic workers temporarily employed in the rural sector are excluded from protection); Yemen (Social Insurance Act of 1987, s. 47). For example: Belize (Social Security Ordinance 1979, s. 3, and first Schedule, Part II, 10); Iraq (s. 3 of the Workers' Pensions and Social Security Law, No. 39 of 1971, read in conjunction with s. 3(h) of the Workers' Pensions and Social Security Law, No. 112 of 1969); Venezuela (Social Insurance Act, s. 3(a)). For example: Belize (Social Security Ordinance 1979, s. 3, and first Schedule, Part II, 4); Iraq (s. 3 of the Workers' Pensions and Social Security Law, No. 39 of 1971, read in conjunction with s. 3(b) of the Workers' Pensions and Social Security Law, No. 112 of 1969); Nicaragua (Social Security Act of 1982, s. 6(c); affiliation is optional for family workers who do not receive remuneration); Panama (Legislative Decree No. 14 of 1954 amending Act No. 134 of 1943 establishing the Social Insurance Fund, s. 4(a)). For example: Belize (Social Security Ordinance 1979, s. 3, and first Schedule, Part II, 1 to 3); Bolivia (Social Security Code of 1956, s. 10(a)); Burundi (Legislative Decree No. 1/17 of 1981 respecting the reform of the general social security scheme, s. 3, subs. 4); Colombia (Agreement No. 224 of 1966, s. 3, subs. 1); Panama (Legislative Decree No. 14 of 1954 amending Act No. 134 of 1943 establishing the Social Insurance Fund, s. 4(c)); Togo (Ordinance No. 39 of 1973 to institute a Social Security Code, s. 3, subs. 4); Venezuela (Social Insurance Act, s. 3(c)); Yemen (Social Insurance Act, s. 47). For example: Burundi (Legislative Decree No. 1/17 of 1981 respecting the reform of the general social security scheme, s. 3, subs. 4); Colombia (Agreement No. 224 of 1966, s. 3, subss. 2 and 3); Iraq (s. 3 of the Workers' Pensions and Social Security Law, No. 39 of 1971, read in conjunction with s. 3(c) of the Workers' Pensions and Social Security Law, No. 112 of 1969); Rwanda (the Government indicates that protection covers all employees except day-labourers); Togo (Ordinance No. 39 of 1973 to institute a Social Security Code, s. 3, subs. 4); Venezuela (Social Insurance Act, s. 3(b)). Endnote 25 For example: Iraq (s. 3 of the Workers' Pensions and Social Security Law, No. 39 of 1971, read in conjunction with s. 3(c) of the Workers' Pensions and Social Security Law, No. 112 of 1969); Panama (Legislative Decree No. 14 of 1954 to amend Act No. 134 of 1943 respecting the institution of the Social Insurance Fund, s. 4(d)). For example: Mauritius (National Pensions Act of 1976, s. 20 and Appendix I concerning contributory pensions). In Colombia, for example, Act No. 11 of 1988 provides for the extension of social security to domestic workers, even if they are paid less than the minimum wage. For example: Bolivia, Colombia and Nicaragua. Saudi Arabia (Decision No. 13 of 1975 of the Minister of Labour and Social Affairs). For example: Algeria (Act No. 83-11 of 1983 respecting social insurance, ss. 3 and 4; Act No. 83-12 of 1983 respecting retirement, s. 4; Decree No. 85-33 of 1985 to prescribe the list of workers treated as salaried employees for purposes of social security; Decree No. 85-35 of 1985 respecting the social security of persons engaged in an occupational activity who are not employees); Argentina (Act No. 18.038 of 1968 concerning a new pension scheme for self-employed workers); Barbados (National Insurance and Social Security Act 1966, s. 13 and the National Insurance and Social Security (Self-Employed Persons) Regulations, 1970, s. 5); Brazil (Decree No. 83080 of 1979 to approve the regulations governing social welfare benefits, ss. 1 to 3 and 275); Gabon (Act No. 10/82 giving effect to the Social Guarantee Code, s. 4); Guyana (National Insurance and Social Security (Self-Employed Persons) Regulations 1971, s. 3); Libyan Arab Jamahiriya (Social Security Law, No. 13 of 1980, s. 31); Philippines (Social Security Law, ss. 9 and 9-A); Tunisia (Decrees Nos. 82-1359 and 82-1360 of 1982); United Kingdom (Bermuda) (Contributory Pensions Act, 1970, s. 2). In the Federal Republic of Germany, for example, some categories of self-employed persons are not obliged by law to affiliate, but may either obtain compulsory insurance coverage at their request or apply for voluntary affiliation. In the Philippines, under s. 9-A of the Social Security Law, the competent authority may issue regulations for the extension of social security to certain categories of self-employed persons (see also the following note). Philippines: according to information provided by the Government, a Bill concerning the extension of social security to these two categories of workers was to have been submitted to Congress in the very near future. For example: Philippines (under s. 9-A of the Social Security Law, coverage is compulsory for self-employed workers earning 1,800 pesos per year or more); United Kingdom (under s. 1, subs. (2) and s. 7, subs. (5) of Ch. 14 of the Social Security Act 1975, self-employed persons whose earnings fall below a certain amount may be exempt from the liability to pay contributions); United States (42 CFR, Part 404.1096(c): self-employed persons are not covered in respect of years in which their annual earnings fell below 400 dollars). For example: Algeria, Barbados, Cyprus, Guyana, Libyan Arab Jamahiriya, Luxembourg, Philippines, United Kingdom, United States. For example: Belgium, Turkey. For example: France (pension insurance for the self-employed is organised according to four categories: artisans, industry and trade, liberal professions, farmers); Italy. For example: Austria, Federal Republic of Germany. In the USSR, according to information provided by the Government, 70 per cent of pensions are paid under national pension legislation. For example: Bulgaria, German Democratic Republic, Hungary, USSR. In Poland, for example, there are special schemes for railway and mineworkers, craftsmen and other self-employed persons, artists, farmers working their own land, persons working other than under an employment relationship, etc. In Romania, there are different laws governing the pensions of members of agricultural production co-operatives, persons farming their own land and lawyers and military personnel. For example: Byelorussian SSR, Poland, Romania, USSR. For example: Australia, Canada, Denmark, Finland, Iceland, Japan, Mauritius, Netherlands, New Zealand, Norway, Switzerland. However, protection of foreign residents may be subject to special residence requirements; see below, Ch. VI. Qatar. For example: Norway, Sweden, Switzerland. For example: Australia (Social Security Act 1947, ss. 4, 8 and 33, inter alia, and government report: pension is subject to both an income test and an assets test (although certain assets are not taken into account); the test which would result in the greatest reduction is applied. In both cases, the beneficiary is entitled to a minimum amount exempt from reduction. If this minimum is not reached, the beneficiary may receive credit up to a certain amount); Canada (Old Age Security Act, s. 10: only the supplement to the national pension is subject to a means test); Iceland (National Insurance Act of 1971, art. 19: only the pension supplement may be reduced if the beneficiary's means other than the basic pension exceed a certain amount); New Zealand (government report and Income Tax Act, s. 336 A-L: all pensioners receive the full rate of benefit, but a special tax is levied on their other income above a certain amount, so that a beneficiary's pension is reduced if he has other sources of considerable income. For a small number of persons with a high income, this special tax may be equal to the amount of the pension. However, according to the report of the Department of Social Welfare, most beneficiaries were not affected by the special tax in the year ending 31 March 1987). However, this is not the case in Switzerland, where the amount of previous earnings is taken into account in calculating benefit. For example: Canada, Finland, Japan, Mauritius, Norway, Sweden. Denmark. For example: Burundi (the Government has stated that studies are envisaged with a view to instituting a social security scheme which would apply to the rural sphere, which makes up the bulk of the informal sector); Grenada; Nicaragua. For example: Grenada (National Insurance Law, 1983, s. 25, subs. 1(c)); Equatorial Guinea (Social Security Act, s. 7(c), read in conjunction with transitional provision No. 1); Saint Lucia (National Insurance Act, s. 26(1)(c)); Trinidad and Tobago (the Government states that the legislation provides for protection to be afforded to self-employed persons, but that this provision has not yet been put into effect). Article 76, paragraph 1(b), reads as follows: "Each Member which ratifies this Convention shall include in the annual report upon the application of this Convention ... (b) evidence, conforming in its presentation as closely as is practicable with any suggestions for greater uniformity of presentation made by the Governing Body of the International Labour Office, of compliance with the statistical conditions specified in -- (i) Articles ... 27(a), (b) or (d) ... as regards the number of persons protected." For example: as regards Convention No. 102: Israel, Mauritania, Mexico; as regards Convention No. 128: Barbados, Libyan Arab Jamahiriya, Uruguay. States for which Part V of Convention No. 102 is in force: for example: Denmark, Iceland, Japan (see also infra note 60, para. 70). States for which Part III of Convention No. 128 is in force: Finland, Netherlands, Norway, Sweden, Switzerland. The Governments of Finland and Norway have availed themselves of Article 16(a) of Convention No. 128, and the Government of Sweden has availed itself of Article 16(b), since they have taken into account, for the calculation of benefits, income-related complementary pension or pension supplements which are paid to workers. The Governments of the Netherlands and Switzerland have availed themselves of Article 16(b) of Convention No. 128, without providing details concerning reasons for this choice.Austria, Federal Republic of Germany. Barbados (according to statistics supplied by the Government in its report made under Article 22 for the period 1974 to 1976, protected persons accounted for 73.5 per cent of the economically active population. In its report sent under art. 19 of the Constitution, the Government states that old-age protection covers all economically active persons, without, however, supplying statistics). Bolivia, Ecuador, Venezuela. Austria. For example: Belgium, France, Greece, Italy (according to the statistics communicated by the Government in its report under Article 19 of the Constitution the persons assured before the National Institute of Social Insurance represent approximately 80 per cent of the active population), Luxembourg, Niger, United Kingdom, Yugoslavia. In Niger, protection covers employees. Most of these countries referred to subparagraph (a) of Article 27 of Convention No. 102, although the United Kingdom availed itself of subparagraph (b).For example: Costa Rica, Japan (as regards pension insurance for wage earners), Mexico. Peru. For example: Australia, Canada, New Zealand. The same applies, in principle, to Suriname, although the Government indicates in its report that difficulties have arisen in the protection of workers in small-scale enterprises and the rural and informal sectors, as well as homeworkers. Qatar. Trinidad and Tobago. Egypt. Poland (the Government states that virtually 100 per cent of the economically active population are protected). From the available information it appears that the same is true of the following countries: Bulgaria, Byelorussian SSR, Czechoslovakia, German Democratic Republic, Hungary, Ukrainian SSR, USSR. For example: Algeria; Brazil (according to the information supplied by the Government, protected persons account for about 76 per cent of all persons employed, bearing in mind that not all rural workers may claim old-age benefit. Under s. 297 of Decree 83080 of 1979 to approve the regulations governing social welfare benefits, rural workers who are heads or bread-winners of a family unit, as well as those who are not members of a family unit and have no dependents, are entitled to old-age benefit); Chile (78 per cent); Cyprus (82 per cent); Portugal (80 per cent); United States (90 per cent). Panama (19.1 per cent of total population according to "El compendio especial estadístico, 1975-84", p. 42, published by the Panama Social Insurance Fund in 1986. Moreover, the Government indicates that all workers in the service of the State or of an individual or company carrying on activities in the country are protected without exception). See the above-mentioned Article 76, paragraph 1(b), of Convention No. 102. See also Article 5 of Convention No. 102, which stipulates that "where, for the purpose of compliance with any of the Parts II to X ..., a member is required to protect prescribed classes of persons constituting not less than a specified percentage of employees or residents, the member shall satisfy itself, before undertaking to comply with any such part, that the relevant percentage is attained". See ILO: Social security, including social protection of public employees in respect of invalidity, retirement and survivors' benefits, Report III of the Joint Committee on the Public Service, Fourth Session, Geneva, 1988 (JCPS/4/1988). See ILO: Social security protection for seafarers, including those serving in ships flying flags other than those of their own country, Report II, Preparatory Technical Maritime Conference, Geneva, May 1986.
Cross references
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