Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

With reference to the comments that it has been making for many years on Conventions Nos. 102, 118, 121, 128 and 130, which have been ratified by the Libyan Arab Jamahiriya, the Committee draws the Government’s attention to Part I of its observation on Convention No. 102.

With regard to Convention No. 118, the Committee notes with regret that, instead of the detailed report that the Government should have submitted in 2001, it has once again sent the same text of the reply prepared by the technical commission responsible for preparing the necessary replies to the observations made by the Committee of Experts, which it had already provided in 1995 and 1997. The Committee recalls that the Government has not provided any new or substantial information since the first examination of this case by the Conference Committee in 1992, despite the assurances given by the Government representative during the second discussion of this case in June 1999, when the Conference Committee expressed deep concern at the persistence of serious discrepancies between the Convention and national law and practice, despite the time which had passed. The Committee therefore hopes that a detailed report will be submitted by the Government for examination at its next session in November-December 2003 and that it will contain full replies to its previous observation, which read as follows:

I. Article 3, paragraph 1, of the Convention (read in conjunction with Article 10). (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 provide 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, the maintenance of their wages or remuneration. The Committee emphasized that this difference in treatment is contrary to the provisions of the Convention. In its reply, the Government explains that unless the period during which contributions have been paid is considered as a period of contribution under a social security agreement concluded between the Government and the State of which the contributor is a national, the latter is only entitled to a lump sum due to the fact that the residence permit as a foreign worker is linked to the contract of employment, and the worker has to leave the country when the contract ends. The Committee notes this information. It once again emphasizes the importance of eliminating the difference in treatment between Libyan nationals and foreign workers in the event of the premature termination of their work. It hopes that the Government will take all the necessary measures for this purpose in the near future.

(b) The Government indicates in its report that section 5(c) of the Social Security Act allows foreign workers engaged in the public administration to affiliate on a voluntary basis to the social security scheme, which provides them with many contractual benefits that are more advantageous than social security benefits. Moreover, section 8(b) of the Social Security Act, covering non-Libyan self-employed workers, provides that affiliation may only be on a voluntary basis, unless there is an agreement concluded with the country of which the workers are nationals, as most people in this category are not residents of the Libyan Arab Jamahiriya and pay contributions to the social security system in their respective countries. The Committee notes this information. It recalls again that where the subscription of nationals to the social security scheme is compulsory, as in the Libyan Arab Jamahiriya, the subscription 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 up between the Members concerned under Article 9 of the Convention). 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.

II. Furthermore, the Committee notes with regret that the Government’s report does not contain any information in reply to the other matters raised in its previous observations. It is therefore bound to draw the Government’s attention once again to these matters.

1. Under the terms of Regulation 16, paragraphs 2 and 3, and Regulation 95, paragraph 3, of the Pensions Regulations of 1981, and 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 the above Regulations seems to imply a contrario that this 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 recalls that the above provisions of the Pension Regulations of 1981 are incompatible with Article 3, paragraph 1, of the Convention. It hopes that the Government will indicate the measures that it has taken or is envisaging to give effect to this provision of the Convention.

2. Regulation 161 of the Pension Regulations of 1981 provides that pensions or other monetary benefits may be transferred to beneficiaries resident abroad subject, where appropriate, to the agreements to which the Libyan Arab Jamahiriya is a party. The Committee recalls that, in accordance with Article 5 of the Convention (read in conjunction with Article 10), each Member which has ratified the Convention 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 the light of the mass expulsions which have taken place in the past of foreign workers from the national territory. It hopes that the Government will indicate in its next report the measures which have been taken or are envisaged to give effect to this basic provision of the Convention in both law and practice.

[The Government is asked to supply full particulars to the Conference at its 91st Session and to reply in detail to the present comments in 2003.]