ILO social security and other labour standards
The ILO has played a major role in developing an international defined normative framework guiding the establishment, development and maintenance of social security systems across the world and has become the world’s leading point of reference for efforts to this end.
Following its establishment in 1919 and being the first to recognise the right to social security in 1944 through the Declaration of Philadelphia, now appended to the ILO Constitution, the Organization’s tripartite constituents (Governments, employer’s and workers organisations of the ILO’s 186 member States) have elaborated and adopted a series of Conventions and Recommendations establishing social security as a separate branch of international law and providing a framework to enhance and extend social protection in countries from all regions of the world.
The Committee on Economic, Social and Cultural Rights’ (CESCR) General Comment 19 on the right to social security was influenced by the content of social security instruments adopted by the International Labour Organization (ILO). The ILO has progressively developed the normative content of the right to social security since the adoption of its constitution in 1919; laying the foundations for the establishment of a separate branch of international law, namely international social security law.
Of the 31 conventions and 24 recommendations adopted in the area of social security between 1919 and 2012 by the ILO’s tripartite constituents, the Social Security (Minimum Standards) Convention, 1952 (No. 102) is considered the flagship social security instrument. Convention No. 102 is unique for both its conceptual formulation of social security, and the guidance it provides for establishing social security systems. The notion of social security in the Convention classifies the of social security systems into nine standard branches, namely:
- health care,
- old age,
- employment injury,
- family and child support,
- disability, and
- survivors and orphans.
For each of these branches, Convention No. 102, complemented by other conventions and recommendations setting higher standards, also specifies how the systems are to be set up, namely:
- what circumstances each branch is meant to protect;
- who should be protected;
- what type of benefit should be provided;
- how do persons become eligible for benefits; and
- for how long the benefit should be granted.
The most recently adopted ILO social security standard, the Social Protection Floors Recommendation, 2012 (No. 202) expands the normative framework for the extension of social security by introducing the concept of nationally-defined social protection floors that guarantee at least access to essential health care and basic income security throughout the life course.
A key reference for the development of social security systems, Convention No. 102 is the flagship of the up-to-date social security Conventions since it is deemed to embody the internationally accepted definition of the very principle of social security. It sets out, into a single, comprehensive and legally binding instrument, the minimum standards for each of the nine classical branches of social security (medical care, sickness benefit, unemployment benefit, old-age benefit, employment injury benefit, family benefit, maternity benefit, invalidity benefit, survivors’ benefit) and places them under the principles for good and sustainable governance. The Convention sets minimum objectives for each contingency with regard to population coverage, benefit adequacy and qualifying conditions, as well as a set of key principles. In addition, Convention No. 102 also provides for flexibility and guidance as regards the type of schemes member States may establish for the implementation of the Convention (universal schemes, contributory social insurance schemes, means-tested social assistance schemes).
Convention No. 118 addresses the issue of the social security of migrant workers in a global manner. It covers the nine branches of social security and provides that, for each branch accepted under the Convention, a ratifying State undertake to grant equality of treatment to nationals of other ratifying States (and their dependents) with its own nationals (including refugees and stateless persons, if specifically accepted) within its territory. Convention No. 118 further lays down the principle of the provision of benefits abroad and the need to endeavour to participate in schemes for the maintenance of acquired rights and rights in the course of acquisition under the legislation of the nationals of the States for which the Convention is also in force.
Convention No. 157 and its accompanying Recommendation No. 167 specifically address the issue of the maintenance of social security rights of migrant workers and complement Convention No. 118, focusing on equality of treatment and exportability. Unlike Convention No. 118 however, which allows State Parties to choose one or more out of the nine branches, Convention No. 157 applies to all branches regardless of the type of scheme: general and special, contributory and non-contributory, as well as schemes consisting of obligations imposed on employers by legislation. The objective of Convention No. 157 is to promote a flexible and broad form of coordination between national security schemes and in particular through the conclusion of bilateral or multilateral social security agreements. Convention No. 157 also establishes a system based on the principle of the maintenance of acquired rights and the rights in the course of acquisition. Recommendation No. 167 proposes model provisions for the conclusion of bilateral or multilateral social security agreements regarding all contingencies and provides rules on maintaining social security rights and exporting benefits. It also proposes a model agreement for the coordination of bilateral or multilateral social security instruments.
The contingency covered by Convention No. 121 includes: a morbid condition, incapacity for work, invalidity or a loss of faculty due to an industrial accident or a prescribed occupational disease, and the loss of support as a result of the death of the breadwinner following employment injury. It belongs to ratifying States to define the notion of “industrial accident”, including the conditions under which this notion applies to commuting accidents. Convention No. 121 indicates the cases in which accidents should be considered by national legislation as industrial accidents and under which conditions the occupational origin of the disease should be presumed. The national list of employment-related diseases has to comprise at least the diseases enumerated in Schedule I to the Convention. Convention No. 121 envisages that all employees, including apprentices in the public and private sectors, and in cooperatives, are to be protected. The Convention further lays down three types of benefits: medical care, cash benefits in the event of incapacity for work and loss of earning capacity (invalidity), and cash benefits in the event of the death of the breadwinner.
Reflecting the trend to find all three long-term benefits (i.e. invalidity, old-age and survivors’ benefits) in a single national pension system, Convention No. 128 regroups these three branches into one instrument and extends coverage to all employees, including apprentices, or not less than 75 per cent of the whole economically active population, or all residents whose means during them contingency do not exceed certain limits. It further sets the periodical payment rate for invalidity benefit to at least 50 per cent of the reference wage and envisages the adoption of measures for rehabilitation services. In the case of old-age and survivors’ benefit, the minimum amount should correspond to at least 45 per cent of the reference wage.
Convention No. 130 covers both the contingency of medical care benefits and cash sickness benefit reflecting the trend to establish comprehensive health insurance systems. All employees, including apprentices, or at least 75 per cent of the whole economically active population, or all residents whose means do not exceed certain limits should be covered for both contingencies. In relation to medical care, wives and children of employees should also covered. Convention No. 130 further extends the medical care required under Convention No. 102 to dental care and medical rehabilitation, including the supply, maintenance and renewal of prosthetic and orthopaedic appliances. It also provides for entitlement to benefit throughout the contingency and restricts the possibility of limiting the duration of sickness benefits; a limitation corresponding to 26 weeks is only authorized where the beneficiary ceases to belong to the categories of persons protected and if the sickness started while the beneficiary still belonged to such categories.
The main aim of Convention No. 168 is twofold: the protection of unemployed persons through the provision of benefits in the form of periodical payments and through the promotion of employment. Convention No. 168 therefore recognises the value of linking social security to broader social and economic policies directed at one priority goal: the promotion of full, productive and freely chosen employment. In addition to provided benefits in case of unemployment at a minimum replacement rate of 50 per cent of the reference wage, ratifying States are therefore also called to adopt appropriate steps to coordinate their system of protection against unemployment and their employment policy. The system of protection against unemployment should therefore be such to encourage employers from offering, and workers from seeking, productive employment. Persons protected must comprise prescribed classes of employees, constituting not less than 85 per cent of all employees, including public employees and apprentices, or all residents whose resources during the contingencies do not exceed prescribed limits.
Under Convention No. 183, all employed women, including those in atypical forms of dependent work, should be covered for pregnancy, child birth and their consequences. In particular, persons protected should be entitled to maternity benefits for a minimum period of 14 weeks (including six weeks of compulsory leave after childbirth) at not less than two-thirds of their previous earnings. The medical benefits provided to protected persons must include prenatal, childbirth and post-natal care. Convention No. 183 also lays down the right to work breaks for breastfeeding, as well as provisions relating to health protection, employment protection and non-discrimination.
Recommendations No. 67 and 69 are at the origin of the development of social security in ILO instruments and can be considered the blueprint for comprehensive social security systems. Together, they establish a comprehensive system of income security and medical care protection for each of the nine classical branches of social security in addition to general neediness (called “general want” in 1944), with the objective of relieving want and preventing destitution. Recommendation No. 67 and No. 69 are grounded on the guiding principle of universal coverage following which income security and medical care services should be extended to the population as a whole through a combination of social insurance and social assistance.
Recommendation No. 202 is the first international instrument to offer guidance to countries to close social security gaps and progressively achieve universal protection through the establishment and maintenance of comprehensive social security systems. To this aim, the Recommendation calls for (1) the implementation, as a priority, of social protection floors (SPF) as a fundamental element of national social security systems and as a starting point for countries that do not have a minimum level of social protection; and (2) the extension of social security with a view to progressively ensure higher levels of social security to as many people as possible according to national economic and fiscal capacity and as guided by ILO’s other social security standards. Social protection floors should comprise at least four basic social security guarantees including access to essential health care and basic income security for children, persons of active age who are unable to earn sufficient income, and older persons and should be set at a level that allows people to live in dignity. Through the social protection floors concept, Recommendation No. 202 provides the minimum core content of the human right to social security. A major achievement of Recommendation No.202 is the policy guidance it offers States to give effect to their general and overall responsibility to establish and maintain these comprehensive social security systems. It does this through a set of principles that provide instructions for the design and implementation of social security programs. These guiding principles intentionally echo both fundamental human rights principles but also core principles related to the good governance, delivery and financing of social security systems.
This Recommendation recognizes the lack of protection of workers in the informal economy, and provides guidance for improving their protection and facilitating transitions to the formal economy. It also includes guidance on the extension of social security coverage to workers in the informal economy and its role in facilitating transitions to the formal economy.