Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the Government’s request to provide it with further technical assistance to formulate the legislation and to bring such legislation and the Government’s decisions in conformity with ILO social security Conventions. It notes, however, that the Government’s report contains no reply to most of the points raised by the Committee in its previous observation. The Committee hopes that, as a result of the assistance of the ILO, the Government will take the necessary measures to give full effect in law and practice to the provisions of the Convention on which it has been commenting.

Article 3, paragraph 1, of the Convention (in conjunction with Article 19). (a) The Committee noted in its previous observations that section 38(b) of Social Security Act, No. 13 of 1980, and Regulations 28-33 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 the Act, the maintenance of their wages or remuneration. The Committee points out again the importance of abolishing the difference between Libyan workers and foreign workers in the event of premature termination of employment. It hopes that the Government will take all necessary steps to this end in the near future.

(b) In its previous comments, the Committee pointed out that, according to the information sent by the Government and pursuant to the national legislation (sections 5(c) and 8(b) of the Social Security Act), foreign workers engaged in the public administration and non-Libyan self-employed workers may be affiliated only on a voluntary basis to the social security scheme unless, in the case of the latter, an agreement exists with their country of origin. The Committee reiterated its view that, where affiliation of nationals to the social security scheme is compulsory, as it is in the Libyan Arab Jamahiriya, to make affiliation voluntary for some categories of foreign workers is contrary to the principle of equal treatment laid down in the Convention (except where arrangements exist between the members concerned under Article 9). Foreigners are often unaware of their own rights and of the administrative steps that they need to take to be protected and therefore cannot benefit from the advantages mentioned by the Government. The Committee takes note of the draft regulation communicated during the mission carried out by the Office in July 2007. The draft regulation provides for compulsory affiliation of foreign self-employed workers, thus guaranteeing equal treatment with regard to nationals. It hopes that the draft will soon be adopted and requests the Government to keep the Committee informed on the progress made in this regard. The Committee also requests the Government to indicate the number of foreign workers employed in the public sector.

(c) In its previous comments, the Committee pointed out that, 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 pointed out that the above provisions of the Pension Regulations of 1981 are incompatible with Article 3, paragraph 1, of the Convention. The Committee noted the indication by the Government, according to which there is an amendment to the regulations by virtue of Decision No. 328 of 1986 that specifies the entitlement of non-nationals to old-age benefits, who spent 20 years in service for which they pay contributions. Section 29 of the Order sets down the condition of five years of minimum service and contributions of insured persons who are non-nationals for the payment of the overall allowance for them. It also notes that, according to the Government, Libyan citizens do not enjoy this advantage. The Committee takes note of the text of the above Order. It would like the Government to provide information on the measures taken to give full effect to this provision of the Convention as regards the other points mentioned above.

Article 5. In its previous comments, the Committee pointed out that Regulation 161 of the Pension Regulations of 1981 provides that pensions or other cash 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 recalled 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 notes that, according to the Government, this matter will be examined when amending the Regulations, so as to bring them into conformity with the Convention. It hopes that the Government will adopt the necessary measures in the near future so as to give effect to this provision of the Convention.

The Committee is addressing a request directly to the Government on other points.

[The Government is asked to report in detail in 2009.]