Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

I. Article 3, paragraph 1, of the Convention (also in conjunction with Article 10).

1. Referring to its previous comments which it has been raising for several years, and to the discussion at the Conference Committee in June 1992, the Committee notes the information supplied by the Government in its report. It draws the Government's attention to the following points:

(a) In its previous observations, the Committee noted that section 38(b) of the Social Security Act No. 13 of 1980 and regulations 28 to 33 of the Pension Regulations of 1981 specify that non-Libyan residents receive only a lump sum in the event of premature termination of work, whereas nationals are guaranteed, under section 38(a) of Act No. 13, maintenance of their wages or remuneration. It pointed out that this distinction is contrary to the provisions of the Convention. In its reply the Government explains that, unless the period of payment of contributions is counted as a contributory period under a social security agreement between the Government and the State of which the contributor is a national, the contributor is entitled only to a lump sum payment, in view of the fact that the foreign worker's residency permit is linked to his contract of employment and that he or she must leave the country upon termination of the contract. The Committee notes this information. It again emphasizes the importance of eliminating the distinction between nationals and non-Libyan workers in the case of premature termination of work. The Committee expresses its hope that the Government will take all necessary measures to do so in the near future.

(b) The Government states in its report that section 5(c) of the Social Security Act permits foreign employees working for public administrations to choose whether to contribute to the social security scheme because they enjoy many contractual benefits which are more advantageous than social security benefits. Furthermore, section 8(b) of the Social Security Act, concerning non-Libyan self-employed workers, establishes only voluntary contributions, unless an agreement has been concluded with the contributor's country of nationality, because most of the persons in this category are not residents in the Libyan Arab Jamahiriya and contribute to social security in their home countries.

The Committee notes this information. It again recalls that where the affiliation of nationals to the social security scheme is compulsory, as in the Libyan Arab Jamahiriya, affiliation of certain categories of foreign workers to the social security scheme on a voluntary basis only is contrary to the principle of equality of treatment as provided by the Convention (subject to any agreement drawn between the Members concerned under Article 9). The Committee hopes once again that the Government will take the necessary measures in the very near future to bring the legislation into conformity with the Convention on this point.

2. The Committee notes that the Government's report does not contain any information in reply to the previous observation concerning regulation 16, paragraphs 2 and 3, and regulation 95, paragraph 3, of the Pensions Regulations of 1981. These regulations provide that (without prejudice to special social security agreements) non-nationals who have not completed a period of ten years' contributions to the social security scheme (years that may be supplemented, where appropriate, by years of contributions paid to the social insurance scheme) are entitled neither to an old-age pension nor to a pension for total incapacity due to an injury of non-occupational origin. Furthermore, regulation 174, paragraph 2, of these Regulations seems to imply a contrario that the qualifying period is also required for pensions and allowances due to survivors of the deceased person by virtue of Title IV of the Regulations, when death is due to a disease or an accident of non-occupational origin. Since such a qualifying period is not required for insured nationals, the Committee points out again that the above-mentioned provisions of the Pension Regulations of 1981 are incompatible with Article 3, paragraph 1, of the Convention. It hopes that the Government will not fail to indicate the measures taken or contemplated to ensure the application of this provision of the Convention.

II. The Committee notes that the Government's report does not contain any information in reply to its previous comments concerning Article 5 of the Convention. It recalls that regulation 161 of the 1981 Pension Regulations provides that pensions or other monetary benefits may be transferred to beneficiaries resident abroad without prejudice, where appropriate, in accordance with agreements to which the Libyan Arab Jamahiriya is a party. The Committee points out again that under this provision of the Convention each Member that has ratified it must guarantee both to its own nationals and to the nationals of any other Member that has accepted the obligations of the Convention in respect of the branch in question, as well as to refugees and stateless persons, when they are resident abroad, the provision of invalidity benefits, old-age benefits, survivors' benefits, death grants and employment injury pensions. The Committee considers that the strict application of Article 5 of the Convention is all the more necessary in light of the recent mass expulsions of foreign workers from the national territory. It trusts that the Government will not fail to indicate in its next report the measures taken or envisaged to give effect in law and in practice to this basic provision of the Convention.