C168 Employment Promotion
and Protection against Unemployment Convention, 1988
Convention concerning Employment Promotion and
Protection against Unemployment (Note: Date of coming into force: 17:10:1991.)
Convention: C168
Place: Geneva
Session of the Conference:75
Date of adoption:21:06:1988 See the
ratifications for this Convention
The General Conference of the International Labour
Organisation,
Having been convened at Geneva by the Governing Body of the
International Labour Office, and having met in its Seventy-fifth Session on 1
June 1988, and
Emphasising the importance of work and productive employment
in any society not only because of the resources which they create for the
community, but also because of the income which they bring to workers, the
social role which they confer and the feeling of self-esteem which workers
derive from them, and
Recalling the existing international standards in the field
of employment and unemployment protection the Unemployment Provision Convention
and Recommendation, 1934, the Unemployment (Young Persons) Recommendation, 1935,
the Income Security Recommendation, 1944, the Social Security (Minimum
Standards) Convention, 1952, the Employment Policy Convention and
Recommendation, 1964, the Human Resources Development Convention and
Recommendation, 1975, the Labour Administration Convention and Recommendation,
1978, and the Employment Policy (Supplementary Provisions) Recommendation, 1984,
and
Considering the widespread unemployment and underemployment
affecting various countries throughout the world at all stages of development
and in particular the problems of young people, many of whom are seeking their
first employment, and
Considering that, since the adoption of the international
instruments concerning protection against unemployment referred to above, there
have been important new developments in the law and practice of many Members
necessitating the revision of existing standards, in particular the Unemployment
Provision Convention, 1934, and the adoption of new international standards
concerning the promotion of full, productive and freely chosen employment by all
appropriate means, including social security, and
Noting that the provisions concerning unemployment benefit
in the Social Security (Minimum Standards) Convention, 1952, lay down a level of
protection that has now been surpassed by most of the existing compensation
schemes in the industrialised countries and, unlike standards concerning other
benefits, have not been followed by higher standards, but that the standards in
question can still constitute a target for developing countries that are in a
position to set up an unemployment compensation scheme, and
Recognising that policies leading to stable, sustained,
non-inflationary economic growth and a flexible response to change, as well as
to creation and promotion of all forms of productive and freely chosen
employment including small undertakings, co-operatives, self-employment and
local initiatives for employment, even through the re-distribution of resources
currently devoted to the financing of purely assistance-oriented activities
towards activities which promote employment especially vocational guidance,
training and rehabilitation, offer the best protection against the adverse
effects of involuntary unemployment, but that involuntary unemployment
nevertheless exists and that it is therefore important to ensure that social
security systems should provide employment assistance and economic support to
those who are involuntarily unemployed, and
Having decided upon the adoption of certain proposals with
regard to employment promotion and social security which is the fifth item on
the agenda of the session with a view, in particular, to revising the
Unemployment Provision Convention, 1934, and
Having determined that these proposals shall take the form
of an international Convention,
adopts the twenty-first day of June of the year one thousand
nine hundred and eighty-eight, the following Convention, which may be cited as
the Employment Promotion and Protection against Unemployment Convention, 1988:
the term legislation includes any social security
rules as well as laws and regulations;
the term prescribed means determined by or in
virtue of national legislation.
Article 2
Each Member shall take appropriate steps to co-ordinate its
system of protection against unemployment and its employment policy. To this
end, it shall seek to ensure that its system of protection against unemployment,
and in particular the methods of providing unemployment benefit, contribute to
the promotion of full, productive and freely chosen employment, and are not such
as to discourage employers from offering and workers from seeking productive
employment.
Article 3
The provisions of this Convention shall be implemented in
consultation and co-operation with the organisations of employers and workers,
in accordance with national practice.
Article 4
Each Member which ratifies this Convention may, by a
declaration accompanying its ratification, exclude the provisions of Part
VII from the obligations accepted by ratification.
Each Member which has made a declaration under paragraph
1 above may withdraw it at any time by a subsequent declaration.
Article 5
Each Member may avail itself, by a declaration
accompanying its ratification, of at most two of the temporary exceptions
provided for in Article 10, paragraph 4, Article 11, paragraph 3, Article
15, paragraph 2, Article 18, paragraph 2, Article 19, paragraph 4, Article
23, paragraph 2, Article 24, paragraph 2, and Article 25, paragraph 2. Such
a declaration shall state the reasons which justify these exceptions.
Notwithstanding the provisions of paragraph 1 above, a
Member, where it is justified by the extent of protection of its social
security system, may avail itself, by a declaration accompanying its
ratification, of the temporary exceptions provided for in Article 10,
paragraph 4, Article 11, paragraph 3, Article 15, paragraph 2, Article 18,
paragraph 2, Article 19, paragraph 4, Article 23, paragraph 2, Article 24,
paragraph 2 and Article 25, paragraph 2. Such a declaration shall state the
reasons which justify these exceptions.
Each Member which has made a declaration under paragraph
1 or paragraph 2 shall include in its reports on the application of this
Convention submitted under article 22 of the Constitution of the
International Labour Organisation a statement in respect of each exception
of which it avails itself-
that its reason for doing so subsists; or
that it renounces its right to avail itself of the
exception in question as from a stated date.
Each Member which has made a declaration under paragraph
1 or paragraph 2 shall, as appropriate to the terms of such declaration and
as circumstances permit-
cover the contingency of partial unemployment;
increase the number of persons protected;
increase the amount of the benefits;
reduce the length of the waiting period;
extend the duration of payment of benefits;
adapt statutory social security schemes to the
occupational circumstances of part-time workers;
endeavour to ensure the provision of medical care to
persons in receipt of unemployment benefit and their dependants;
endeavour to guarantee that the periods during which
such benefit is paid will be taken into account for the acquisition of
the right to social security benefits and, where appropriate, the
calculation of disability, old-age and survivors' benefit.
Article 6
Each Member shall ensure equality of treatment for all
persons protected, without discrimination on the basis of race, colour, sex,
religion, political opinion, national extraction, nationality, ethnic or
social origin, disability or age.
The provisions of paragraph 1 shall not prevent the
adoption of special measures which are justified by the circumstances of
identified groups under the schemes referred to in Article 12, paragraph 2,
or are designed to meet the specific needs of categories of persons who have
particular problems in the labour market, in particular disadvantaged
groups, or the conclusion between States of bilateral or multilateral
agreements relating to unemployment benefits on the basis of reciprocity.
Each Member shall declare as a priority objective a policy
designed to promote full, productive and freely chosen employment by all
appropriate means, including social security. Such means should include, inter
alia, employment services, vocational training and vocational guidance.
Article 8
Each Member shall endeavour to establish, subject to
national law and practice, special programmes to promote additional job
opportunities and employment assistance and to encourage freely chosen and
productive employment for identified categories of disadvantaged persons
having or liable to have difficulties in finding lasting employment such as
women, young workers, disabled persons, older workers, the long-term
unemployed, migrant workers lawfully resident in the country and workers
affected by structural change.
Each Member shall specify, in its reports under article
22 of the Constitution of the International Labour Organisation, the
categories of persons for whom it undertakes to promote employment
programmes.
Each Member shall endeavour to extend the promotion of
productive employment progressively to a greater number of categories than
the number initially covered.
Article 9
The measures envisaged in this Part shall be taken in the
light of the Human Resources Development Convention and Recommendation, 1975,
and the Employment Policy (supplementary Provisions) Recommendation, 1984.
The contingencies covered shall include, under prescribed
conditions, full unemployment defined as the loss of earnings due to
inability to obtain suitable employment with due regard to the provisions of
Article 21, paragraph 2, in the case of a person capable of working,
available for work and actually seeking work.
Each Member shall endeavour to extend the protection of
the Convention, under prescribed conditions, to the following contingencies
-
loss of earnings due to partial unemployment, defined
as a temporary reduction in the normal or statutory hours of work; and
suspension or reduction of earnings due to a
temporary suspension of work, without any break in the employment
relationship for reasons of, in particular, an economic, technological,
structural or similar nature.
Each Member shall in addition endeavour to provide the
payment of benefits to part-time workers who are actually seeking full-time
work. The total of benefits and earnings from their part-time work may be
such as to maintain incentives to take up full-time work.
Where a declaration made in virtue of Article 5 is in
force, the implementation of paragraphs 2 and 3 above may be deferred.
The persons protected shall comprise prescribed classes
of employees, constituting not less than 85 per cent of all employees,
including public employees and apprentices.
Notwithstanding the provisions of paragraph 1 above,
public employees whose employment up to normal retiring age is guaranteed by
national laws or regulations may be excluded from protection.
Where a declaration made in virtue of Article 5 is in
force, the persons protected shall comprise-
prescribed classes of employees constituting not less
than 50 per cent of all employees; or
where specifically justified by the level of
development, prescribed classes of employees constituting not less than
50 per cent of all employees in industrial workplaces employing 20
persons or more.
Unless it is otherwise provided in this Convention, each
Member may determine the method or methods of protection by which it chooses
to put into effect the provisions of the Convention, whether by a
contributory or non-contributory system, or by a combination of such
systems.
Nevertheless, if the legislation of a Member protects all
residents whose resources, during the contingency, do not exceed prescribed
limits, the protection afforded may be limited, in the light of the
resources of the beneficiary and his or her family, in accordance with the
provisions of Article 16.
Benefits provided in the form of periodical payments to the
unemployed may be related to the methods of protection.
Article 14
In cases of full unemployment, benefits shall be provided in
the form of periodical payments calculated in such a way as to provide the
beneficiary with partial and transitional wage replacement and, at the same
time, to avoid creating disincentives either to work or to employment creation.
Article 15
In cases of full unemployment and suspension of earnings
due to a temporary suspension of work without any break in the employment
relationship, when this contingency is covered, benefits shall be provided
in the form of periodical payments, calculated as follows:
where these benefits are based on the contributions
of or on behalf of the person protected or on previous earnings, they
shall be fixed at not less than 50 per cent of previous earnings, it
being permitted to fix a maximum for the amount of the benefit or for
the earnings to be taken into account, which may be related, for
example, to the wage of a skilled manual employee or to the average wage
of workers in the region concerned;
where such benefits are not based on contributions or
previous earnings, they shall be fixed at not less than 50 per cent of
the statutory minimum wage or of the wage of an ordinary labourer, or at
a level which provides the minimum essential for basic living expenses,
whichever is the highest;
Where a declaration made in virtue of Article 5 is in
force, the amount of the benefits shall be equal-
to not less than 45 per cent of the previous
earnings; or
to not less than 45 per cent of the statutory minimum
wage or of the wage of an ordinary labourer but no less than a level
which provides the minimum essential for basic living expenses.
If appropriate, the percentages specified in paragraphs 1
and 2 may be reached by comparing net periodical payments after tax and
contributions with net earnings after tax and contributions.
Article 16
Notwithstanding the provisions of Article 15, the benefit
provided beyond the initial period specified in Article 19, paragraph 2 (a), as
well as benefits paid by a Member in accordance with Article 12, paragraph 2,
may be fixed after taking account of other resources, beyond a prescribed limit,
available to the beneficiary and his or her family, in accordance with a
prescribed scale. In any case, these benefits, in combination with any other
benefits to which they may be entitled, shall guarantee them healthy and
reasonable living conditions in accordance with national standards.
Article 17
Where the legislation of a Member makes the right to
unemployment benefit conditional upon the completion of a qualifying period,
this period shall not exceed the length deemed necessary to prevent abuse.
Each Member shall endeavour to adapt the qualifying
period to the occupational circumstances of seasonal workers.
Article 18
If the legislation of a Member provides that the payment
of benefit in cases of full unemployment should begin only after the expiry
of a waiting period, such period shall not exceed seven days.
Where a declaration made in virtue of Article 5 is in
force, the length of the waiting period shall not exceed ten days.
In the case of seasonal workers the waiting period
specified in paragraph 1 above may be adapted to their occupational
circumstances.
Article 19
The benefits provided in cases of full unemployment and
suspension of earnings due to a temporary suspension of work without any
break in the employment relationship shall be paid throughout these
contingencies.
Nevertheless, in the case of full unemployment-
the initial duration of payment of the benefit
provided for in Article 15 may be limited to 26 weeks in each spell of
unemployment, or to 39 weeks over any period of 24 months;
in the event of unemployment continuing beyond this
initial period of benefit, the duration of payment of benefit, which may
be calculated in the light of the resources of the beneficiary and his
or her family in accordance with the provisions of Article 16, may be
limited to a prescribed period.
If the legislation of a Member provides that the initial
duration of payment of the benefit provided for in Article 15 shall vary
with the length of the qualifying period, the average duration fixed for the
payment of benefits shall be at least 26 weeks.
Where a declaration made in virtue of Article 5 is in
force, the duration of payment of benefit may be limited to 13 weeks over
any periods of 12 months or to an average of 13 weeks if the legislation
provides that the initial duration of payment shall vary with the length of
the qualifying period.
In the cases envisaged in paragraph 2 (b) above each
Member shall endeavour to grant appropriate additional assistance to the
persons concerned with a view to permitting them to find productive and
freely chosen employment, having recourse in particular to the measures
specified in Part II.
The duration of payment of benefit to seasonal workers
may be adapted to their occupational circumstances, without prejudice to the
provisions of paragraph 2 (b) above.
Article 20
The benefit to which a protected person would have been
entitled in the cases of full or partial unemployment or suspension of earnings
due to a temporary suspension of work without any break in the employment
relationship may be refused, withdrawn, suspended or reduced to the extent
prescribed-
for as long as the person concerned is absent from the
territory of the Member;
when it has been determined by the competent authority
that the person concerned had deliberately contributed to his or her own
dismissal;
when it has been determined by the competent authority
that the person concerned has left employment voluntarily without just
cause;
during the period of a labour dispute, when the person
concerned has stopped work to take part in a labour dispute or when he or
she is prevented from working as a direct result of a stoppage of work due
to this labour dispute;
when the person concerned has attempted to obtain or has
obtained benefits fraudulently;
when the person concerned has failed without just cause
to use the facilities available for placement, vocational guidance,
training, retraining or redeployment in suitable work;
as long as the person concerned is in receipt of another
income maintenance benefit provided for in the legislation of the Member
concerned, except a family benefit, provided that the part of the benefit
which is suspended does not exceed that other benefit.
Article 21
The benefit to which a protected person would have been
entitled in the case of full unemployment may be refused, withdrawn,
suspended or reduced, to the extent prescribed, when the person concerned
refuses to accept suitable employment.
In assessing the suitability of employment, account shall
be taken, in particular, under prescribed conditions and to an appropriate
extent, of the age of unemployed persons, their length of service in their
former occupation, their acquired experience, the length of their period of
unemployment, the labour market situation, the impact of the employment in
question on their personal and family situation and whether the employment
is vacant as a direct result of a stoppage of work due to an on-going labour
dispute.
Article 22
When protected persons have received directly from their
employer or from any other source under national laws or regulations or
collective agreements, severance pay, the principal purpose of which is to
contribute towards compensating them for the loss of earnings suffered in the
event of full unemployment-
the unemployment benefit to which the persons concerned
would be entitled may be suspended for a period corresponding to that during
which the severance pay compensates for the loss of earnings suffered; or
the severance pay may be reduced by an amount
corresponding to the value converted into a lump sum of the unemployment
benefit to which the persons concerned are entitled for a period
corresponding to that during which the severance pay compensates for the
loss of earnings suffered, as each Member may decide.
Article 23
Each Member whose legislation provides for the right to
medical care and makes it directly or indirectly conditional upon
occupational activity shall endeavour to ensure, under prescribed
conditions, the provision of medical care to persons in receipt of
unemployment benefit and to their dependants.
Where a declaration made in virtue of Article 5 is in
force, the implementation of paragraph 1 above may be deferred.
Article 24
Each Member shall endeavour to guarantee to persons in
receipt of unemployment benefit, under prescribed conditions, that the
periods during which benefits are paid will be taken into consideration-
for acquisition of the right to and, where
appropriate, calculation of disability, old-age and survivors' benefit,
and
for acquisition of the right to medical care and
sickness, maternity and family benefit after the end of unemployment,
when the legislation of the Member concerned provides for such benefits
and makes them directly or indirectly conditional upon occupational
activity.
Where a declaration made in virtue of Article 5 is in
force, the implementation of paragraph 1 above may be deferred.
Article 25
Each Member shall ensure that statutory social security
schemes which are based on occupational activity are adjusted to the
occupational circumstances of part-time workers, unless their hours of work
or earnings can be considered, under prescribed conditions, as negligible.
Where a declaration made in virtue of Article 5 is in
force, the implementation of paragraph 1 above may be deferred.
VII. Special Provisions for
New Applicants for Employment
Article 26
Members shall take account of the fact that there are
many categories of persons seeking work who have never been, or have ceased
to be, recognised as unemployed or have never been, or have ceased to be,
covered by schemes for the protection of the unemployed. Consequently, at
least three of the following ten categories of persons seeking work shall
receive social benefits, in accordance with prescribed terms and conditions:
young persons who have completed their vocational
training;
young persons who have completed their studies;
young persons who have completed their compulsory
military service;
persons after a period devoted to bringing up a child
or caring for someone who is sick, disabled or elderly;
persons whose spouse had died, when they are not
entitled to a survivor's benefit;
divorced or separated persons;
released prisoners;
adults, including disabled persons, who have
completed a period of training;
migrant workers on return to their home country,
except in so far as they have acquired rights under the legislation of
the country where they last worked;
previously self-employed persons.
Each Member shall specify, in its reports under article
22 of the Constitution of the International Labour Organisation, the
categories of persons listed in paragraph 1 above which it undertakes to
protect.
Each Member shall endeavour to extend protection
progressively to a greater number of categories than the number initially
protected.
VIII. Legal, Administrative and
Financial Guarantees
Article 27
In the event of refusal, withdrawal, suspension or
reduction of benefit or dispute as to its amount, claimants shall have the
right to present a complaint to the body administering the benefit scheme
and to appeal thereafter to an independent body. They shall be informed in
writing of the procedures available, which shall be simple and rapid.
The appeal procedure shall enable the claimant, in
accordance with national law and practice, to be represented or assisted by
a qualified person of the claimant's choice or by a delegate of a
representative workers' organisation or by a delegate of an organisation
representative of protected persons.
Article 28
Each Member shall assume general responsibility for the
sound administration of the institutions and services entrusted with the
application of the Convention.
Article 29
When the administration is directly entrusted to a
government department responsible to Parliament, representatives of the
protected persons and of the employers shall be associated in the
administration in an advisory capacity, under prescribed conditions.
When the administration is not entrusted to a government
department responsible to Parliament-
representatives of the protected persons shall
participate in the administration or be associated therewith in an
advisory capacity under prescribed conditions;
national laws or regulations may also provide for the
participation of employers' representatives;
the laws or regulations may further provide for the
participation of representatives of the public authorities.
Article 30
In cases where subsidies are granted by the State or the
social security system in order to safeguard employment, Members shall take the
necessary steps to ensure that the payments are expended only for the intended
purpose and to prevent fraud or abuse by those who receive such payments.
Article 31
This Convention revises the Unemployment Provision
Convention, 1934.
Article 32
The formal ratifications of this Convention shall be
communicated to the Director-General of the International Labour Office for
registration.
Article 33
This Convention shall be binding only upon those Members
of the International Labour Organisation whose ratifications have been
registered with the Director-General.
It shall come into force twelve months after the date on
which the ratifications of two Members have been registered with the
Director-General.
Thereafter, this Convention shall come into force for any
Member twelve months after the date on which its ratification has been
registered.
Article 34
A Member which has ratified this Convention may denounce
it after the expiration of ten years from the date on which the Convention
first comes into force, by an act communicated to the Director-General of
the International Labour Office for registration. Such denunciation shall
not take effect until one year after the date on which it is registered.
Each Member which has ratified this Convention and which
does not, within the year following the expiration of the period of ten
years mentioned in the preceding paragraph, exercise the right of
denunciation provided for in this Article, will be bound for another period
of ten years and, thereafter, may denounce this Convention at the expiration
of each period of ten years under the terms provided for in this Article.
Article 35
The Director-General of the International Labour Office
shall notify all Members of the International Labour Organisation of the
registration of all ratifications and denunciations communicated to him by
the Members of the Organisation.
When notifying the members of the Organisation of the
registration of the second ratification communicated to him, the
Director-General shall draw the attention of the Members of the Organisation
to the date upon which the Convention will come into force.
Article 36
The Director-General of the International Labour Office
shall communicate to the Secretary-General of the United Nations for
registration in accordance with Article 102 of the Charter of the United Nations
full particulars of all ratifications and acts of denunciation registered by him
in accordance with the provisions of the preceding Articles.
Article 37
At such times as it may consider necessary the Governing
Body of the International Labour Office shall present to the General Conference
a report on the working of this Convention and shall examine the desirability of
placing on the agenda of the Conference the question of its revision in whole or
in part.
Article 38
Should the Conference adopt a new Convention revising
this Convention in whole or in part, then, unless the new Convention
otherwise provides-
the ratification by a Member of the new revising
Convention shall ipso jure involve the immediate denunciation of this
Convention, notwithstanding the provisions of Article 34 above, if and
when the new revising Convention shall have come into force;
as from the date when the new revising Convention
comes into force this Convention shall cease to be open to ratification
by the Members.
This Convention shall in any case remain in force in its
actual form and content for those Members which have ratified it but have
not ratified the revising Convention.
Article 39
The English and French versions of the text of this
Convention are equally authoritative.
