Demande directe (CEACR) - adoptée 1996, publiée 85ème session CIT (1997)

With reference to its observation, the Committee draws the Government's attention to the following points:

Part IV (Unemployment benefit), Articles 20 and 24 of the Convention (with particular reference to Article 69). 1. In its previous comments the Committee had noted that the rule by which a person could be disqualified from receiving unemployment benefit for having refused "suitable employment" (a concept contained in Article 20 of the Convention) was replaced by the more restrictive concept of refusing employment "without good cause". It had referred in particular to the Social Security Contributions and Benefits Act of 1992, sections 28 and 29 (the latter of which authorizes newly unemployed persons during a "permitted period" of up to 13 weeks to refuse to seek or accept employment which does not correspond to their usual occupation and earnings). The Committee had asked the Government to indicate the measures taken under the legislation then in force to ensure that, in all cases covered by Article 20 of the Convention, the period for which unemployment benefit is provided is at least 13 weeks within a period of 12 months, in accordance with Article 24 of the Convention.

The Committee notes that the Government's report does not contain any new information in this respect but refers to the information supplied under Convention No. 44. The Government has provided the texts of the new Jobseekers Act and of the regulations made thereunder, which raise new questions. The Committee intends to examine in detail the Jobseekers Act, which entered into force in October 1996, together with the implementing regulations, at its next session, when it will have received full information on their impact on the application of each Article of Part IV of the Convention, including on the question recalled above, in the manner set out in the report form of the Convention.

2. In its previous comments, the Committee noted that section 28(1)(a) of the Social Security Contributions and Benefits Act of 1992 provides that a person may be disqualified from receiving unemployment benefit for a period not exceeding 26 weeks when he has lost his employment through his "misconduct", whereas Article 69(f) of the Convention only authorizes such a suspension where the contingency has been caused by the wilful misconduct of the person concerned. It therefore requested the Government to provide copies of any relevant administrative or judicial decisions which may shed light on the scope of said section 28(1)(a). In addition, the Committee requested detailed information in reply to the TUC's reference to a number of cases of suspension or disqualification from employment benefit of insured persons who left their employment for reasons that the TUC considered to be legitimate (Article 69(i) of the Convention).

In reply, the Government refers to the Social Security Commissioner's Decisions R(U) 8/57 and 2/77, which have the status of case-law and contain definitions of "misconduct". The Government considers that case-law on the interpretation of "misconduct" shows that a sanction should only be applied if the misconduct was wilful misconduct. As regards cases of disqualification mentioned by the TUC, the Government states that these cases were not identified, and therefore the facts that were available to the adjudication officer in each case are not known. Moreover, the Government is unable to comment on decisions made by independent adjudication authorities.

The Committee takes note of this information. It recalls that by ratifying the Convention a State accepts the obligation to ensure its implementation both in law and practice as determined by the competent bodies, including those which are independent bodies. The Government has thus a duty to supply information on the practical application of the Convention requested by the Committee. The Committee notes, on the other hand, that under Decision R(U) 2/77 the Chief Commissioner defined misconduct as: "conduct which is causally connected, but not directly connected with the employment, and having regard to the relationship of employer and employee and the rights and duties of both, can fairly be described as blameworthy, reprehensible and wrong". The Committee considers from this Decision and from Decision R(U) 8/57, previously communicated by the Government, that the notion of misconduct may also apply to certain types of carelessness which, although faulty, could not be considered as wilful within the meaning of Article 69(f). It is therefore important to know whether an employee dismissed for cause had received a warning prior to dismissal, as repeated misconduct in light of an issued warning would more clearly indicate a level of intent inherent in the notion of wilfulness.

The Committee notes with interest the detailed information concerning the training and monitoring of adjudication officers. It welcomes the guidance given to the adjudication officers on the interpretation of legislation and regulations. It hopes that the competent authority will issue guidelines on the interpretation of misconduct for suspension of unemployment benefit, so as to ensure that such suspension is limited to cases of behaviour constituting wilfulness as provided for by Article 69(f) of the Convention. The Committee hopes that the Government's next report will contain information on progress made in this respect. In addition, the Committee requests the Government to supply information on the application in practice of Article 69(i) of the Convention, as well as on the new comment made by the TUC.

3. In reply to the Committee's previous comments concerning section 57 of the Social Security Contributions and Benefits Act 1992 which subjects the entitlement to unemployment benefit to the requirement that the insured person must be "actively seeking work", the Government indicated in its report of 1995 that the new Jobseekers Act carries forward this requirement with respect to the Jobseekers Allowance (JSA), to be further detailed in regulations. It added that, under the new legislation, the persons concerned must sign a Jobseeking Agreement setting out their plans to find employment and that, besides job search, actions improving employability will also count. The Government has also indicated that, in the year to 31 March 1995, 21,460 claims were disallowed under the previous legislation by adjudication officers because the claimant had failed to actively seek work, but that only about 2 per cent of adverse decisions by adjudication officers on all questions were the subject of an appeal by the claimant to a Social Security Appeal Tribunal. The Committee notes this information, in particular the apparently high number of claims denied for failure to actively seek work. It also notes that under section 1(2)(b) and (c) of the Jobseekers Act, the entitlement to the JSA is subjected, inter alia, to the condition that a claimant "has entered into a jobseekers' agreement which remains in force" and is "actively seeking employment". These conditions are further detailed in Chapters III and V of the Jobseeker's Allowance Regulations 1996. The Committee would like the Government to provide detailed information on the implementation of these provisions in practice, as well as to continue to supply up-to-date statistics on the number of cases in which unemployment benefit has been suspended for the above-mentioned reasons.

Part V (Old-age benefit). The Committee notes that, according to the rules for the calculation of the state retirement pension explained in the report, full benefit is granted to a beneficiary who has completed, prior to the contingency, a qualifying period of about ninth-tenths of the number of years in the person's working life, which, normally, comprises the period from the beginning of the tax year in which the 16th birthday falls to the end of the tax year in which the 64th (59th for women) birthday falls. If the number of qualifying years is less than the number of years required for a standard-rate pension, a proportionally reduced-rate pension is payable. The Committee understands therefore that the statistics on the amount of the benefit given in the report correspond to a full pension payable to a beneficiary who has completed 44 (for men) and 39 (for women) qualifying years, and not to a pro-rated pension which is achieved after 30 qualifying years. It notes, however, from the statistics contained in the report, that a basic state pension paid after 30 years of contribution would still be above the level prescribed by the Convention. In this situation, the Committee hopes that in the future the Government will provide statistics on the amount of the old-age benefit for a standard beneficiary who has completed a qualifying period of 30 years of contribution or employment, as required by Article 29, paragraph 1(a), of the Convention.

Part XIV (Miscellaneous provisions), Article 76, paragraph 1(b)(ii). For a certain number of years the Committee has been drawing the Government's attention to the need to re-examine the manner in which the wage of an ordinary adult male labourer is determined for the purpose of calculating periodical benefits, and to supply statistics on the wage of such labourer selected in accordance with paragraph 4 or 5 of Article 66 of the Convention, on the basis of up-to-date data, and not based on the adjusted level of the nationally negotiated minimum wage of an engineering labourer for the year 1987. In reply, the Government stated that to change the basis of the standard wage for the purposes of Article 66 of the Convention would lead to inconsistency and would have a distorting effect on comparisons. For these reasons it has no alternative but to continue uprating the previous minimum wage, which has always been regarded as the appropriate reference point against which to compare social security benefits, by the increase in the average earnings index for mechanical engineers for the corresponding period.

The Committee notes this information. It wishes to point out in this respect that paragraph 7 of Article 66 provides that the wage of the ordinary adult male labourer shall be determined on the basis of the rates of wages for normal hours of work fixed by collective agreements, by or in pursuance of national laws or regulations, where applicable, or by custom, including cost-of-living allowances if any; where such rates differ by region the median rate shall be taken. Comparing the current rate of benefit to the now largely obsolete minimum wage of 1987 adjusted by applying the index of the average earnings in the relevant occupation for the corresponding period would constitute only an approximation which does not clearly allow to ascertain whether the rate of the relevant benefit for a standard beneficiary attains the level prescribed by the Convention. In light of these explanations, the Committee once again expresses the hope that the Government will be able to reconsider the manner in which the wage of an ordinary adult male labourer is determined for purposes of Article 66 of the Convention. In the meantime, the Committee would like the Government to supply detailed information on the method currently used to uprate the minimum wage of an engineering labourer, including the figures used for the most recent calculation and their source.

[The Government is asked to report in detail in 1997.]