GAP ANALYSIS OF ILO CONVENTION 102 AND NATIONAL LAWS AND REGULATIONS CONCERNING MINIMUM STANDERS OF CONTRIBUTION BASED SOCIAL SECURITY IN NEPAL
GAP ANALYSIS OF ILO CONVENTION 102 AND NATIONAL
LAWS AND REGULATIONS CONCERNING MINIMUM STANDERS OF CONTRIBUTION BASED SOCIAL
SECURITY IN NEPAL
By
BHAKTI RMA GHIMIRE
Submitted to the Master in Industrial and
Employment Relations
of the Turin School of Development
of the International Training Centre of the
ILO
in partial
fulfillment of the requirement for
the FIRST
LEVEL MASTER
of the
University of Turin, Italy
November, 2019
GAP ANALYSIS OF ILO CONVENTION 102 AND NATIONAL
LAWS AND REGULATIONS CONCERNING MINIMUM STANDERS OF CONTRIBUTION BASED SOCIAL
SECURITY IN NEPAL
Thesis
Approved:
|
Zeleke Temaesgen |
|
Thesis Advisor |
Acknowledgements
This thesis paper entitled Gap analysis
of ILO Convention 102 and national laws and regulations concerning minimum
standards of Contribution Based Social Security in Nepal is prepared for submitting to the Master in Industrial
and Employment Relations of the Turin School of Development of International
Training Centre of ILO in partial fulfillment of requirement for first level
master on University of Turin, Italy. This is a moment
of great pleasure for me to get an opportunity to extend my gratitude to
Giuseppe Casale Deputy Director of ITC/ILO, Fernando Fonseca, Senior Programme
officer, ITC/ILO, Neeran Ramjuthan, our online tutor and chief technical
advisor at ILO, Paola Costantini, administrative Assistant, Bishnu Rimal, Trade
Union Leader and chief advisor to Prime Minister of Nepal, Ramesh Badal Vice
president of gefont and Labour law expert of Nepal and my law firm partner
advovate Lochan Bhattarai and advocate Sirjana Rana.
As well as I extend
my huge gratitude to my beloved wife Sushila Pandey and daughter Akira
Ghimire.
Many persons who
helped me heartedly in completing this research work. I would like to express
my gratitude to all of them.
I would like to
extend my sincere gratitude to the respected supervisor lecture and tutor at the
International Training Center of the International Labour Orgnization
(ITC-ILO)'s Zeleke Temaesgen for
his guidance to bring this thesis in present shape.
Date: November,
2019
Bhakti Ram Ghimire
Name: Bhakti Ram Ghimire
Date of Degree: November, 2019
Title of Thesis: GAP ANALYSIS OF ILO CONVENTION 102 AND NATIONAL
LAWS AND REGULATIONS CONCERNING MINIMUM STANDERS OF CONTRIBUTION BASED SOCIAL
SECURITY IN NEPAL
Field: Industrial and Employment Relations
Abstract
ILO C. 102 have developed major 9 components to meet the social security
scheme. Research objectives was to explore the compliance and non compliance of
ILO C.102 on Contribution Based Social Security in Nepal followed by identify
the gap and challenges of implementing. Data for research are collected from various sources using
library research design and presented descriptively on analysis.
The Right to Social Security became a topic of discussion in world
following the adoption of Declaration of Philadelphia by ILO in 1944. Initiative by state providing benefits as universal social security
to the citizens is started in 26 Dec 1994 during the tenure of Prime Minster
Man Mohan Adhikari, which is extended on various forms till this date in Nepal.
Medical Treatment, Health and
Maternity Security, Accident and Disability Security, Dependent Family Security
and Old Age Security facilities etc. are major components of Nepalese Contribution Based Social Security but is not fully
implemented even on formal economy and informal economy haven't started yet.
Benefits provided not found adequate and also family, unemployment subsidies
are lacking in practice. Beneficiaries under SSF
have paid contribution on low volume but there still has no commitment from
employer side. So
Constitutional contribution based social
security provisions should be incorporated on legal provision also covering all
formal and informal. To overcome the
challenges, effective management of the scheme as an independent body, there
need to develop required expertise and management instruments, including
Information Technology (IT) systems and administrative tools such as rules and
regulations, operational procedures.
Contents
Acknowledgements
iii
Abstract
iv
Contents v
List of Tables vii
Chapter
1 Introduction
1.5
Review of Literature and Scope
Chapter
2 Overview of the Right to Social
Security
2.2
Elements of the Right to Social Security
2.2.1
Availability- Social Security System
2.2.2
Social Risks and Contingencies
2.3
Forms of Social Security Schemes
2.4
Legal Instruments related to the Right to Social Security
2.4.1
International instruments/standards on the Right to Social Security
2.4.2
National instruments/standards on the Right to Social Security
2.5
State Obligations under the provision of Right to Social Security
Chapter
3 data And Methodology
3.1 Nature and Sources of Data
Chapter
4 Legal Framework of Contribution Based
Social Security in Nepal
4.1
Contribution Based Social Security Scheme in Nepal
4.1.1
Medical Treatment, Health and Maternity Security Scheme
4.1.2
Accident and Disability Security Scheme
4.1.3
Dependent Family Security Scheme
Chapter
5 Gap Analysis and Challenges of
Contribution Based Social Security
5.1
Exclusion from the protection because of employment status
5.2
Exclusion from the Protection Because of Migration Status
References
Table Page
Table 1: Gap analysis
of ILO Social Security (Minimum Standards)
convention, 1952 (No.102) and
national laws and regulations concerning minimum standards
of Contribution Based Social Security in Nepal
..................................................................................................................................... 25
Chapter
1
Introduction
1.1
Background
All the industrial countries
of the world have developed measures to promote the economic security and
welfare of individual and his family.
These measures have come to be called as social security.[1] Social security is dynamic concept and an
indispensable chapter of a national programme to strike at the root of poverty,
unemployment and diseases.
The Right to Social Security
is a human right and enshrined in major international human rights instruments,
for instance, Universal Declaration of Human Rights (UDHR), International
Covenant on Economic, Social and Cultural Rights (ICESCR)[2]. The Right to Social Security is the right to
get protection from the society through a series of public measures to provide
the benefits whether in cash or in kind from the work resulting from various
contingencies such as sickness, maternity, employment injury, unemployment,
invalidity, old age and death of the breadwinner including the health care and
family supports[3]. Goldblatt pointed out
that the social security can be designed and used to mitigate inequalities and
contribute towards shaping progressive social outcomes, and from a human rights
perspective, social security should be understood as a rights-based entitlement
rather than a concessionary benefit[4].
The Right to Social Security is recognized and enshrined under
article 34(2) for contribution-based and article 43 has for social assistance
based on the Constitution of Nepal[5]. Although the Pension for government employee and gratuity
and Provident Fund schemes for the permanent workers have a long history in
Nepal. After the formulation of the Constitution (2015) and Contribution Based Social
Security Act (2017) provision has been expanded the coverage to all categories
of employment irrespective of employment relations. However, to date, most Nepali people are not provided with adequate
social security coverage. The predominance of informal employment,
approximately 80%, together with an overall low-income level and limited
ability to pay or contribute to any scheme based on collective arrangements are
obstacles to extend the Right to Social Security to all Nepal.
1.2
Purpose
Majority of Nepal’s population is still not covered by social
protection, this thesis will initiate to gap analyze whether the implementation
of the Right to Social Security is effective and in line with the Gap analysis of ILO Convention 102 and national laws
and regulations concerning minimum standards of social
security in Nepal. The thesis will also try to examine to what
extent the Right to Social Security is implemented and which groups of the
population are protected, and challenges that impede the implementation.
1.3
Research question
This thesis will be going to answer the following questions:
1) What is the gap
ILO Convention 102 and national laws and regulations concerning minimum
standards of contribution based social security in Nepal?
2) Does the contribution based social
security system of Nepal comply the minimum standards of ILO
Convention no.102?
3) What are challenges for the implementation
of the Right to Social Security in Nepal?
4) Is there any possibility to ratify the Convention no. 102? Since Nepal take the position that it will ratify any convention
once it will be fully comply the provision of any ILO convention.
1.4
Research methodology
This research will be conducted to examine gap and compliance with
minimum standards of ILO Convention no. 102 to promulgate Contribution based social security Act, 2017. Also
examine the overall rules and policies concerning the Contribution based social
security. To achieve the comprehensive analysis, primary source such as the
international legal and other relevant non-binding instruments will be
elaborated together with the national laws and policies of Nepal. Secondary
source such as reports, data and statistics from organizations, for example,
the International Labor Organization (ILO), the World Bank (WB), World Health
Organization (WHO) and other Non-Governmental Organization (NGOs) alongside
with the academic research papers, books and articles related to the Right to
Social Security are also included.
1.5 Review
of Literature and Scope
Due to time constraint and available resources, this research
conducts the analysis based on the data and documents accessible through the
websites of relevant organizations and governmental units. Because of the
location constraint, this paper is unable to obtain the information from key
informants such as government officials and experts from the organizations, who
are working in the field of social security in Nepal.
Therefore, this study will serve as an academic paper aiming at
expressing a holistic view on the national laws and policies in relation to the
implementation of the Right to Social Security in Nepal. Accordingly, this thesis will not a specialized paper aiming at
providing the comprehensive recommendations or solutions to solving the
problems raised in the paper.
The study covers all Nepalese nationals by disregarding whether
they are male or female, children or adults, young or old age people and rural
or urban population or whether they possess employment or not. Accordingly, the thesis includes
Nepalese workers from both formal and informal economies into the discussion.
When discussing the national laws and policies, this study has
scope over the laws and policies that have been adopted from 2017 until present
and remain in force.
This study also focuses on all various kinds of social security
schemes in both formal and informal economies. There are nine branches of
social security coverage stipulated in ILO Convention no. 102 (minimum
standard) on Social Security (hereinafter, C.102) such as medical care,
sickness, unemployment, old age, maternity, employment injury, family
responsibility, invalidity, and survivorship.
In terms of social security branches, the international
instruments such as ILO C.102 and International Convention on Economic, Social
and Cultural Rights (ICESCR) will be the main documents of this analysis. Other
international instruments which contain specific provisions of the Right to
Social Security will be briefly discussed.
Because Nepal has not yet ratified C.102 on Social Security, its obligation
under the international instruments in relation to the Right to Social Security
is bound by other particular international legal instruments such as ICESCR[6], Convention on the Right of Persons
with Disabilities (CRPD)[7]
and International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD)[8],
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW)[9].
1.6
Structure of the thesis
Chapter 2 will be present a general overview of the Right to
Social Security. In this regard, definition, characteristic and international
and regional legal instruments are highlighted. Furthermore, the state’s
obligations related to the Right to Social Security are also reviewed.
Chapter 3 will deals with the approaches, research design, nature of data and data collection methods applied during the study.
Chapter 4 will emphasizes the implementation of the Right to
Social Security in Nepal by analyzing its national legislation alongside
strategies and policies of the government to see whether it is compatible and
gap with the international standards to promulgate Contribution Based Social
Security, 2017 in Nepal. In this respect, the research will address the main
social security protection in the formal economy (private sectors) and other
substantive social security schemes that are provided to workers in the
informal economy as well as the poor and vulnerable groups who are excluded
from the social security’s statutory provisions.
Chapter 5 will elaborates challenges that Nepal has faced in
implementing the Contribution Based Social Security. In this respect, the gap
of the national legislation, limited institutional capacity, scarcity of
national resources and inadequacy of scheme coverage and benefit will be
analyzed to see how these challenges impede Nepal to comprehensively implement
the Right to Social Security.
Chapter 6 will provide an overall conclusion of the whole
discussion of the Right to Social Security in Nepal and summarizes the main
finding of this research.
Chapter 2
Overview of the
Right to Social Security
This chapter starts with the definition and conceptualization of
the Right to Social Security. Then, it continues with elements of the Right to
Social Security including the forms of social security schemes. The
international and regional instruments regulating the social security as well
as national legislation of Nepal are also examined here. Lastly, this chapter
emphasizes state’s obligation in realizing the Right to Social Security by
considering nature of obligation enshrined in ICESCR.
2.1
Definition
So far, there is no a single definition of what the Right to
Social Security is. Sometimes, we can see the word “social Security” and
“social Protection” are used interchangeably but also are understood to have
different and/or similar meaning depending on the context.[10]
The definition of social security and protection can be found in
the ILO World Social Security Report 2011 which elaborated that social
protection is often interpreted as a broader than social security including
protection provided between members of the family or members of a local
community but is also used in some contexts with a narrower meaning (understood
as comprising only measures addressed to the poorest, most vulnerable or
excluded members of society). Social protection has two aspects: (1)
interchangeable with “social security;” and (2) as “protection” provided by
social security in case of social risks and needs[11].
Social security covers all measures providing benefits, whether in
cash or in kind, to secure protection from: (a) lack of work-related income (or
sufficient income) caused by sickness, disability, maternity, employment
injury, unemployment, old age or death of a family member; (b) lack of access
or unaffordable access to health care; (c) insufficient family support,
particularly for children and adult dependents; and (d) general poverty and
social exclusion. Social security has two main dimensions, namely “income
security” and “availability of medical care”[12]
Social security covers all measures providing benefits, whether in
cash or in kind, to secure protection from: (a) lack of work-related income (or
sufficient income) caused by sickness, disability, maternity, employment
injury, unemployment, old age or death of a family member; (b) lack of access
or unaffordable access to health care; (c) insufficient family support,
particularly for children and adult dependents; and (d) general poverty and
social exclusion. Social security has two main dimensions, namely “income
security” and “availability of medical care”. According to the ILO C.102,
social security covers nine (9) branches; medical care, sickness, unemployment,
old age, employment injury, family, invalidity and survivor’s benefits. [13]
For the purpose of this research, the Social Protection is the
same meaning as Social Security. Meanwhile, the Social Protection Floors (SPFs)
which provides sets of basic social security benefits aimed at preventing or
alleviating poverty, vulnerability and social exclusion[14]
are included in the thesis since it is a measure to progressively achieve the
high social security.
2.2
Elements of the Right to Social Security
The General Comment No.19
on the Right to Social Security (hereinafter, the General Comment) adopted by
the Committee on Economic, Social and Cultural Rights (CESCR) outlines that in
realizing the Right to Social Security, there are essential factors that need
to be considered:
2.2.1 Availability- Social Security System
The Right to Social Security requires a system of the
implementation whether composed of a single scheme or variety of schemes, is
available and in place to make sure that benefits are provided for the relevant
social risks and contingencies. Thus, this system should be established under
domestic law, and public authorities must take responsibility for the effective
administration or supervision of the system. Moreover, the schemes should also
be sustainable, including those concerning provision of pensions, in order to
ensure that the right can be realized for present and future generations. [15]
2.2.2 Social Risks and Contingencies
The coverage of the social security benefit should consist of nine
branches as in ILO C.102; health care, sickness, old age, unemployment,
employment injury, family and child support, maternity, disability and
survivors and orphans. [16]
2.2.3 Adequacy
In this regard, CESCR
addresses that the benefits, whether in cash or in kind, must be adequate in
amount and duration in order that everyone may realize his or her rights to
family protection and assistance, an adequate standard of living and adequate
access to health care, as contained in articles 10, 11 and 12 of the Covenant.
The states are also required to respect the human dignity and principle of
non-discrimination. [17]
According to ILO, the benefits are considered adequate if they are
neither too low nor too high. Benefits are regarded as too low if people cannot
live on them or if they perceive the “return” on their contributions to be too
low. Cash benefits may be considered too high if they result in expenditure
levels or behavior detrimental to the common good or to acceptance by the
public of the scheme itself. The benefits are adequate when they help to
achieve expected social policy outcomes, that is, meeting the needs of people
who have to cope with life’s essential risks and the relationship between
benefit levels and taxes and/or contributions paid during a working life is
considered to be “fair” (social adequacy). Those benefits work in synergy with
employment instruments and fiscal and other economic policies, and do not
result in unwanted economic consequences (economic adequacy).
2.2.4 Accessibility
The accessibility means making the social protection program(s)
easy for people to reach, understand and use, irrespective of age, disability,
ethnicity, geographical location or other factors.[18]
In this regard, CESCR has stressed that firstly, the coverage should be
provided to all persons without discrimination in particular individuals
belonging to the marginalized groups. Secondly, the eligibility: the qualifying
conditions of the benefit must be reasonable, proportionate and transparent.
Thirdly, the affordability. If the social security scheme requires the
contributions, those contributions should be stipulated in advance and the
direct and indirect costs associated with the contribution must be affordable
for all. Fourth, beneficiaries of social security schemes must be able to
participate in the administration of the social security system. In this
respect, the system should be established under national law and ensure the
right of individuals and organizations to seek, receive and impart information
on all social security entitlements in a clear and transparent manner. Fifth,
benefits should be provided in a timely manner and beneficiaries should have
physical access to the social security services in order to access benefits and
information and make contributions where relevant. Particular attention should
be paid to disabilities, migrants, and persons living in remote or
disaster-prone areas.[19]
2.3 Forms of Social Security Schemes
All social security benefits represent social transfers from one
group to another in the society (from active age groups to old) in cash or kind
(access to goods or services).[20]
Social transfer is organized in different social security schemes; however,
these schemes can be divided into two main groups: contributory schemes and
non-contributory schemes.[21]
In the contributory scheme, the contribution is made by beneficiaries and their
employers (and sometimes the state is the employer) determining their
entitlement. This type of the contributory scheme is called social insurance.[22]
Whereas the non-contributory scheme, there is no requirement of the direct
contribution from the beneficiaries or employers as a condition to receive the
benefits. The non-contributory scheme is usually financed through tax or the
state’s revenue and consists of a range of forms, inter alia, universal scheme
and social assistance.[23]
The universal scheme is available for all residents or to all members of
certain groups such as the elderly, children and disabled.[24]
Social assistance is different from the universal scheme in the way that the
benefit in cash or in kind is distributed to the poor by means-test or based on
the similar forms of targeting, for example, proxy means test and geographical
targeting.[25]
2.4 Legal
Instruments related to the Right to Social Security
This section elaborates the international, regional and national legal
framework concerning the social security.
2.4.1
International instruments/standards on the Right to Social Security
The Right to Social Security became a topic of discussion
following the adoption of the Declaration of Philadelphia by ILO in 1944.[26]
Accordingly, this right is also recognized as one of human rights because it is
articulated in the UDHR[27]
and ICESCR[28]. Nowadays, there are
other numerous international instruments that regulate this right, for example,
ICERD,[29]
CEDAW,[30]
CRPD[31]
and Convention on the Rights of the Child (CRC).[32]
For the specific and normative instruments on social security protection, we
can see Conventions and Recommendations that have been continuously adopted by
ILO, inter alia, C.102 which is the first international standard that outlines
comprehensive formulation of social security issue.
Since the founding of the ILO in 1919, the International Labor
Conference has adopted 31 Conventions and 23 Recommendations addressing issues
relating to social security.[33]
The ILO Governing Body reviewed these Conventions and Recommendations on social
security in 2002 in the light of the current needs of the international
community, and confirmed that it regards eight of these Conventions as being up
to date.[34] It should be noted that
Nepal has not yet ratified ILO C.102 nor any other ILO conventions related to
social security. In addition to these
instruments, the provision of Social Security can be found in other
international documents dealing with migrant workers’ protection, for instance,
in the UN agenda: International Convention on the Protection of All Migrant
Workers and Members of Their Families (UN Migrant Workers Convention),[35]
International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD)[36]
and Resolution 40/144 of the UN’s General Assembly in 1985 on the Declaration
on the Human Rights of Individuals who are not Nationals of the Country in
which they live.[37] ILO has a plethora of
standards that protect migrant workers. Beside its Constitution, there are numerous
instruments such as the 1998 Declaration on Fundamental Principles and Rights
at Work, Resolution Concerning a Fair Deal for Migrant Workers in a Global
Economy, the Migration for Employment Convention (Revised) 1949 (ILO C.97),
Migrant Workers (Supplementary Provisions) Convention 1975 (ILO C.143), 2007
Multilateral Framework on Labor Migration and Equality of Treatment (Accident
Compensation) Convention (1925) (ILO C.19) and 2012 Social Protection Floor
Recommendation (R202), all provide protection of the Right to Social
Security.
2.4.2 National instruments/standards on the Right to Social
Security
In 26 Dec 1994 the Prime Minster of Nepal Man Mohan Adhikari
introduced monthly old-age allowance who were above age of 75 years. This was
first ever initiative by the state providing benefits as the universal social
security to the citizens of Nepal besides those in the government service. In
July 1995, single women above age of 65 begin receiving monthly allowance as
Social Assistance.
Constitution of Nepal (2015): stipulates about the social
security and social benefits that every laborer shall have the right to appropriate remuneration,
facilities and contribution-based social security. [38]
Economically poor, physically incapacitated and helpless person,
helpless single women, persons with physical impairment, children, persons who
cannot look after themselves and the citizens who belong to communities that
are on the verge of extinction, shall have the right to social security as
provided for by law.[39]
In 13 August 2017 adopted by parliament Contribution Based Social Security Act,
2017 Section 10 of the Act has provisioned Medicare and Sickness
Benefit, Maternity Protection Benefit, Accidental Benefit, Disability Benefit,
Old Age Benefit, Dependent Benefit, Unemployment Benefit, other social
protection schemes specified by the Fund.[40] Covers all employment relationships between employers and
employees, ensures the better working conditions and keeps harmonization in
vocational communication, safety and health strengthening at workplace.
2.5 State
Obligations under the provision of Right to Social Security
According to General Comment No.19 on article 9 of ICESCR
regarding the Right to Social Security, the committee expresses two natures of
the obligations of the state member in realization of the said right.
2.5.1
General Obligation
Due to the fact that the realization of the Right to Social
Security imposes the significant financial burden for the state parties, the
Convention does not require all states to implement the right at the same
level. The implementation can be various across the state members because of
different stages of economic development. However, what the committee has
stressed is that the state parties have the immediate obligation, for example,
to guarantee that the right will be exercised without discrimination of any
kind (article 2, para.2), ensuring the equal rights of men and women (article
3) and the obligation to take steps (article 2, para.1) towards the full
realization of articles 11(1), and 12 of the ICESCR in order to reach full
realization of the Right to Social Security.[41]
To emphasize on the nature of this obligation, although the ICESCR provides for
the progressive realization due to the resource constraints, the state parties
cannot postpone their obligation or use it as pretext for noncompliance.[42]
With regard to this point, states are obliged to move as expeditiously and effectively
as possible toward the goal of full realization and required to employ all
means such as legislative, administrative, judicial, economic, social, and
educational—appropriate to the right concerned and the country’s economic,
political and social organizations.[43]
Although the resource is limited, the state parties have core obligation to
afford minimum essential level of benefits to all individuals and families that
will enable them to acquire at least essential health care, basic shelter and
housing, water and sanitation, foodstuffs, and the most basic forms of
education.[44]
Accordingly, it should be borne in mind that the Right to Social
Security should be appropriately prioritized in law and policy of the state
parties.[45] Based on a study
conducted under ILO Global Study, constitutional guarantees play a very
important proactive role in introducing social rights into national legislation
and in fostering their implementation. First, an analysis of the constitutional
provisions allows position of social security rights within the framework of
human rights, in particular, civil rights to be assessed according to a
particular country. Thus, it is possible to obtain an answer to the question
about the significance of social security rights in the legal regulations of
the national law. Second, the constitutional provisions, and in particular,
interpretations made on their basis by constitutional courts of particular
states, indicate the minimal contents of social security rights. Finally, the
analysis of the contents of constitutional provisions presents an opportunity
to look at social security rights cross-sectional, i.e. to include the
perspective of international instruments ratified by the state, and of
instruments of lower rank than the constitution.[46]
2.5.2
Specific Obligation
States are supposed to respect and ensure rights to all
individuals; however, this is a very broad obligation, thus, in the UN human
rights bodies have adopted a tripartite typology of how human rights obligation
should be secured, namely, the obligation to respect, to protect and to
fulfill.[47] Like the obligation
imposed by other international human rights instruments, the Right to Social
Security imposes these three obligations on state parties.
A. The Obligation to Respect
This obligation requires the state refraining from interfering
directly or indirectly with the exercising of the Right to Social
Security-i.e., the obligation to refrain from engaging in any practice or
activity that, for example, denies or limits equal access to adequate social
security; arbitrarily or unreasonably interferes with self-help or customary or
traditional arrangements for social security; arbitrarily or unreasonably
interferes with institutions that have been established by individuals or
corporate bodies to provide social security.[48]
B. The Obligation to Protect
In relation to this obligation, the state parties are obliged to
prevent the third parties in interfering the enjoyment of the Right to Social
Security. In this regard, the state parties shall take necessary measures on
individuals, groups, corporations or other entities to respect the Right to
Social Security. The effective regulatory system shall include framework
legislation, independent monitoring, genuine public participation and imposition
of penalties for noncompliance.[49]
C. The Obligation to Fulfill
The obligation to fulfill necessitates the state parties to adopt
appropriate domestic legislation and measures in implementing the social
security scheme. Firstly, the obligation to facilitate entails the state
parties to take positive measures to assist individuals and communities to the
Right to Social Security. Secondly, the obligation to promote obliges
the state parties to ensure that the public awareness and education about the access
to the social security scheme are properly operated nationwide. Thirdly,
the state parties are bound to provide the social security when individuals or
groups are unable to realize this right themselves. In this case, the
non-contributory schemes or social assistance shall be conducted and the
special attention shall be paid to the disadvantaged and marginalized groups.[50]
Additionally, to realize the Right to Social Security, the state
parties shall engage in the international cooperation and assistance. Thereof,
the agreement on harmonization of the social security schemes is very crucial
in safeguarding the individuals’ right to social security especially for
migrant workers.[51]
The CESCR has emphasized
that the violation of the Right to Social Security can occur through the act of
commission or omission. The violation through the act of commission is the
direct actions of the states or other entities insufficiently regulated by the
states; for example, the formal repeal
or suspension of legislation necessary for the continued enjoyment of the right
to social security and active support for measures adopted by third parties
which are inconsistent with the right to social security.[52]
The violation through act of omission is occurred when the states
fail to take sufficient and appropriate action in realizing the right, for
instance, the failure to enforce relevant laws or put into effect policies
designed to implement the right to social security and the failure to ensure
the financial sustainability of State pension schemes.[53]
Chapter 3
DATA AND
METHODOLOGY
Research design, nature of data, source of data, collection methods and analyzing technique are basic components of research methodology. This chapter elaborates the methodology applied by researcher during study in detail. In order to achieve the objective of study following methodological approach has been followed.
3.1 Nature and Sources
of Data
In
this research both primary and secondary source of data have been used
qualitative data are used in this study. Researcher has done best efforts in
collecting and reviewing relevant literatures from different sources.
3.2 Primary Authorities
The
Constitutions, International Convention and other related data collected from
International Institutions and government authority of Nepal as primary data.
3.3 Secondary
Authorities
The
Secondary data is collected from books, literatures, journals and articles on Social Security relating to International
Convention, Constitution of Nepal, Contribution Based Social Security act and
other related rules and regulation. The articles available in various
websites like ILo, ITCILO, University of Turin are also taken as secondary
source for this study.
For
the preparation of this thesis, researcher has visited different libraries and
documentation center in Kathmandu Valley in Nepal like; Library of Nepal law
Campus, Library of Supreme Court, Library of Nepal Bar Association, Nepal Bar
Council, Library of Nepal Law Society, Library of Attorney General Office and
Central Law Library, Kathmandu Kritipur.
3.4 Data Collection
This
research requires both primary and secondary data. Data are collected through
the published sources using library research design. Necessary data are
collected from Library of Nepal law Campus, Library of Supreme Court, Library
of Nepal Bar Association and Nepal Bar Council, Library of Nepal Law Society,
Library of Attorney General Office and Central Law Library.
3.5 Presentation and
Analysis
This
is a crucial part of methodology in every research. Purpose of analysis is to
summarize the collected data and organize in such a manner that they could
answer research problem. In this study data and information is presented in
descriptive form for analyzing the provision of ILO C-102, Contribution Based
Social Security Act and its related legal provision of Nepal.
All
collected data are qualitative in this research. Data collected are quantified,
analyzed, described and presented thoroughly as required.
Chapter 4
Legal Framework of Contribution Based Social Security in Nepal
4.1 Contribution Based Social Security Scheme in Nepal [54]
The Fund has made
the following procedure subject to Section 70(2) of Contribution Based Social
Security Act, 2074 (2017) for operating Social Security Scheme as per Section
10 of the same Act.
4.1.1 Medical Treatment, Health and Maternity
Security Scheme[55]
Any contributor
making contribution in Social Security Fund for 6 months shall get medical
treatment and health facility as per this scheme. But the facility maternity
security shall be made available only under the condition of contribution for
12 months within the time period of 18 months.
Facilities
available under medical treatment, Doctor's consultation service: Fee (charge) for hospital admission and surgery, Cost of diagnosis and examination service,
Cost as per of medical bill, Cost of regular pregnancy test of the contributor
or wife of the contributor, hospital admission, surgery and treatment cost of
infant up to of 3 months old. Not admitted in the hospital but has got medical
treatment at home due to his/her inability to visit hospital for treatment, in
such situation, consultation fee of the doctor visiting patient at the house of
the patient.
Threshold of
facility: The amount to be
provided to any contributor who needs treatment after getting admission in the
hospital as the facility shall be paid directly to the hospital from which the
contributor has got treatment after admission and such amount shall not exceed
Rs 1 lakh in a year. The amount may be claimed not exceeding the above
mentioned amount for the treatment of the contributor or the wife and infant of
the contributor. Maximum Rs. 25 thousand
shall be paid in a year to other contributors except those requiring treatment
getting admission in the hospital. The
contributor claiming facility must pay 20% of the amount from his/her side and
total amount shall not exceed Rs. 1 lakh in a year. In situation of the birth of child by the
contributor or the wife of the contributor, amount equivalent to minimum remuneration
of one month per child shall be provided to such contributor or the wife of the
contributor and such amount shall be provided even in the situation of
miscarriage of pregnancy above 24 weeks. If both the husband and wife are
contributors, in such situation only one person must claim such facility.
Paid leave: As per the Labor
Act or prevailing law or collective agreement, if the contributor has to get
medical treatment getting admission in the hospital for longer duration of time
period than the available paid sick leave (at least 12 days in a year) to be
provided from the employer or the contributor has to get medical treatment
staying at home with the recommendation of doctor, such contributor shall get
60% of basic remuneration during such time period even though s/he is absent from
work. Provided, if such leave exceeds 13 weeks, the remuneration of the time
period beyond 13 weeks shall not be paid.
As per the Labor Act or prevailing law or collective agreement, if the
contributor requires maternity leave beyond 60 days' paid maternity leave to be provided by the
employer, 60% of basic salary shall be paid for that time period beyond 60
days. But such days shall not exceed 98 days including 60 days paid maternity
leave as per Section 45(3) of Labor Act or other prevailing Nepal laws. If there is no such situation that the sick
leave or maternity leave to be provided by the employer could be provided to
the contributor due to the closure of business of the employer or due to the
reason of termination of employment, 60% of basic remuneration of the duration
of leave to be provided by the employer must be paid by the fund to the
concerned contributor.
Situation that the
facility could not be obtained: Notwithstanding anything written
anywhere else in this procedure, the contributor shall not get facility under
medical treatment and health security scheme under the following
situations: Cost of plastic surgery and
dental treatment except treatment required due to accident, Cost of bariatric surgery,
At the time when the scheme has been suspended due to inability to meet the
cost because of nationwide epidemic.
4.1.2 Accident and Disability
Security Scheme [56]
Under this scheme
contributor shall get facility against accident and facility against
disability. If the contributor labor needs treatment after meeting occupational
accident, s/he may get facility as per this scheme. Provided, s/he shall get
facility other accidents except occupational accident. The facility to be
provided into force from the date of contribution. Provided, on behalf of the
contributor listed for the first time, if any accident happened before the date
of first contribution even after listing, such person may also get this
facility. Treatment of occupational disease and other facility relating to it
shall be provided only after making contribution at least for two years.
Threshold of scheme
facility: The entire cost
for the treatment of occupational accident or occupational disease, the
treatment cost not exceeding Rs. 7 lakh shall be borne by the fund in situation
of other accidents except occupational accident. If there is accident due to
natural disaster or if there is road accident or in situation of facility
available from other insurance system, any cost shall not be borne by social
security fund.
Any contributor who
is suffering from temporary full incapacity due to occupational accident or
occupational disease, 60% of his basic remuneration based on the ratio of
his/her incapacity on monthly basis until he is not returned in the work, any
contributor who is suffering from permanent incapacity due to occupational
accident or occupational disease, monthly pension presuming 60% of his basic
remuneration based on the ratio of his/her incapacity as 100% in his lifetime,
any contributor who is suffering from permanent full incapacity due to
occupational accident or occupational disease, arrangement of making payment of
monthly pension to him/her equivalent to 60% of his basic remuneration in his
lifetime or if s/he cannot move by himself/herself, such payment shall be made
to his/her dependent family member who looks after him/her or other person or
institute who looks after him/her, payment of the amount to any person or the
institute shall be done with the recommendation of local level.
Threshold of
pension facility:
The monthly pension amount to be provided by the Fund as per this Chapter in
case of 100% incapacity shall not be lesser than 60% of minimum remuneration
fixed for the concerned sector by Government of Nepal and more than 3 times the
figure of minimum basic remuneration.
Provided, if the percentage of incapacity is 20% or lesser, the Fund may
make payment calculating the time period of compulsory retirement as per this.
4.1.3 Dependent Family Security
Scheme[57]
In case of death of
the contributor, following facility shall be made available to the dependent
family under this scheme: The pension amount to be received by the husband or
the wife, Educational allowance to be received by children, Facility to be received
by dependent parents, Cremation
(funeral) cost.
Pension to be
received by the husband or wife of the contributor: In case of death of the contributor due to
accident or occupational disease, his/her wife or husband shall get 60% of
final basic remuneration of the contributor as pension till the life time of
the husband or wife of the contributor. If the husband or the wife of the
contributor does another marriage or if the husband or the wife of the
contributor has alternative employment, no such facility shall be given in such
situation. But if the employment of such person ceases to exist, such person
may ask pension filing an application in the Fund.
The Children of the
Contributor to receive Educational allowance: If the contributor dies due to accident and if the
contributor is survived by a child below 18 years old, in such situation such
child shall get 40% of final basic remuneration of the contributor on monthly
basis under the dependent facility until such child do not cross the age of 18
years old. If there are more than one child eligible to get such facility, in
such situation 60% of the final basic remuneration of the contributor shall be
provided proportionately to all on monthly basis. If any child is studying
continuously, such facility may be provided until such child does not cross the
age of 21 years old. If such person gets married or if his/her study is over,
such facility shall not be provided. If any child is incapable to perform any
work physically or mentally, age bar shall not be applicable in case of such
child.
Parents may get
facility: If there is no
husband or wife or son or daughter of the contributor living under the same
roof but if there are dependent father or mother of such contributor, the Fund
shall provide 60% of basic remuneration on monthly basis to the father or
mother of the contributor in their lifetime. If both the parents of such
contributor are living, such facility shall be provided to both
proportionately.
Cremation cost to
be received: If there is
death of any contributor or if any permanently incapacitated contributor
receiving facility dies after a long period of time, a lump sum of Rs. 25
thousand shall be provided to nearby dependent family member or legal heir of
such contributor.
4.1.4 Old Age Security Scheme[58]
To participate in
the scheme: The Fund
shall manage old age security scheme from 10% of basic remuneration of the
labor deposited in Social Security Fund
for provident fund and 8.33%
deposited for gratuity (sum total
18.33%) and 10% contribution amount to be made by the labor for provident fund
(sum total of 18.33% and 10% becoming 28.33%). The contributor labor shall get
Pension scheme, Retirement facility scheme as per this scheme.
Contributor shall
provided following facilities under the following condition: After the completion of retirement age of the
contributor, the contribution amount deposited in the fund by him/her
(including the contribution made by the employer) and adding the return
received from investment made by the fund in that amount, the labor shall
receive the amount equivalent to the result of total amount divided by 180
months (15 years) every month in his/her entire life time. If any contributor
dies before the retirement age, his/her legal heir or if any foreign national
is leaving Nepal quitting service, s/he shall get a lump sum amount computed
after adding the contribution made in the fund by the concerned labor,
contribution made from the side of the employer on behalf of such labor and
also adding the return of investment of the amount made by the Fund.
Eligible age for
pension: The eligible age
of any contributor for pension is 60 years old.
Retirement
facility: Any contributor on
employment before the implementation of the pension scheme shall get the payment
of a lump sum amount computed by adding the contribution amount deposited in
this Fund for the provident fund and gratuity, contribution made from the side
of the employer on it and the return from the investment made from the Fund.
Other provision relating to this shall be as prescribed by the Fund time and
again.
Chapter 5
Gap Analysis and
Challenges of Contribution Social Security in Nepal
In recent years, the new formed
Government has signaled a strong commitment to expand social protection both
vertically and horizontally. However, as discussed in Chapter 4, some
categories of workers are not provided the protection although they engage in
the formal economy, and for population employed in the informal economy are
excluded from statutory provision concerning the social security. Furthermore,
the benefit is not adequate in response to the need. Some branches such as old
age benefit in the private sector is not easy to implement. It is likely not
possible to succeed in a short-term for developing countries like Nepal to
achieve effective and full realization of the Right to Social Security.
Hence, this chapter explores and analyses
potential gap and Social Security (Minimum Standards) convention, 1952 (No.102)
challenges such as the loophole of the national statutory provisions relating
to the social security benefit, limited and imperfect governance, economic
issue, poverty and education problems that hinder the full realization of the
Contribution based Social Security.
Table 1: Gap analysis of ILO Social
Security (Minimum Standards) convention, 1952 (No.102) and national laws and regulations concerning minimum
standards of Contribution Based Social Security in Nepal
|
Constitutional Provision |
Provision of ILO Social
Security (Minimum Standards) convention, 1952 (No.102) |
Social Security Scheme Operating
Procedure, 2075 (2018) |
Gaps
identified: - Description of gaps etc. |
Recommended
solutions in national law and/or practice |
|
Article 34(2): Every laborer shall
have the rigth to appropriate remuneration, facilities and contribution-based
social security. |
Medical
Care: Medical care is enunciated in article
7-12 of ILO C.102. |
Medical Treatment, Health and Maternity Security
Scheme is enunciated in article 3-8 of Social
Security Scheme Operating Procedure, 2075 (2018). |
|
|
|
Sickness
Benefit: This provision can be found in article 13-18 of ILO C.102. |
||||
|
Maternity
Benefit: This provision can be found in article 46-52 of ILO C.102. |
|
|
||
|
Old age
Benefit: This provision can be found in article 25-30 of ILO C.102. |
Old Age Security Scheme is enunciated
in article 9-13 of Social Security Scheme Operating Procedure, 2075 (2018). |
|
|
|
|
Employment
Injury Benefit: This provision can be found in article 31-38 of ILO C.102. |
Accident and Disability Security Scheme is enunciated in article 9-13 of Social Security Scheme
Operating Procedure, 2075 (2018). |
|
|
|
|
Invalidity
Benifit: This provision can be found in article 53-58 of ILO C.102. |
||||
|
Survivors'
Benefit: This provision can be found in article 59-64 of ILO C.102. |
Dependent Family Security Scheme is enunciated in article 14-18 of Social Security Scheme
Operating Procedure, 2075 (2018). |
|
|
|
|
Unemployment
Benefit: This provision can be found in article 19-24 of ILO C.102. |
|
This two benefit is not covered by Contribution
Based social security act, rule and procedure. |
Constitution of Nepal have guarantied
Right to Contribution based social security as Fundamental Right. Hence, the
constitutional provisions should be incorporated on legal provision also. |
|
|
Family Benefit: This provision can be found in article 39-45 of
ILO C.102. |
|
5.1 Exclusion from the protection because of employment status
Contribution Based Social Security for
Persons defined by the provision of the Labor Law. Contribution Based Social
Security is provided only to those workers who are protected under the Labor
Law. From this wording, other categories of workers are outside of the
protection, i.e. not only some categories of workers in the formal economy but
also workers in the informal economy.
From this description, it can be
understood that there are certain types of workers excluded from the Labor
Law. Firstly, all workers in the formal
economy are not covered and secondly, worker in informal economy is excluded by
the Labor Law. From the wording of article 2(X) of Nepali Labor law
which stipulates “means any worker or employee or any person employed with any
job title performing physical or mental work for an employer”, implies that
self-employed and other workers like domestic and unpaid family workers are not
governed by the Labor Law. The worker in informal economy is always left
unprotected due to their employment’s conditions. In this regard, why are
workers in the informal economy excluded from the protection? The informal
economy is usually known as all economic activities by workers and economic
units that are – in law or in practice – not covered or insufficiently covered
by formal arrangements.[59]
It should be noted that about 30 years
ago, ILO first used the term “informal sector” to describe the activities of
working poor who were working very hard but who were not recognized, recorded,
protected or regulated by public authorities, for instance, own-account workers
inter alia street vendors, shoe-shiners, and garbage collector; homeworkers and
self-employed in the micro-enterprises.[60]
Generally, workers in informal economy are excluded from the distribution of
social security and social protection in the sense that they are not recognized
because, firstly, their economic activities are not covered or insufficiently
covered by formal arrangements under the law or in practice.[61]
Workers in the informal economy and
their dependents are for the most part completely excluded from (formal) social
protection schemes, in particular social insurance schemes because the notion
of employee is by large used for referring only to standard formal sector
workers.[62]
Secondly, either employers or employees in the informal economy usually earn
low income in addition to non-registration status; therefore, they are unable
to contribute in tax collection to the state.[63]
In this case, they are outside of the consideration of social security and
other forms of social protection. Thirdly, to get benefit from social schemes,
workers are required to fulfil certain conditions such as contribution and
qualifying period. Due to their irregular incomes, they cannot provide
contribution for their social coverage benefit. Accordingly, working period is
also irregular or just seasonal so they are concerned only about their risks
“here and now” not for other risks in the future.[64]
In Nepal, certain categories of the
informal workers are entitled to grant the social security protection in
accordance with the Law on Social Security for the persons defined by provision
of Labor Law 2017, for example, persons with self-employed profession and
seasonal or occasional workers. However, the mechanism on how this provision
should be implemented has not yet been articulated and the distribution of the
benefit has not also been commenced; therefore, it is not sure when the social
security benefit can be formulated.
5.2 Exclusion from the Protection Because of Migration Status
Another type of workers excluded from
the social security protection is migrant worker. Based on the wording of
Nepali Labor Law, the law explicitly applies the protection to the relationship
between employers and workers performed their employment contracts within the
territory of Nepal.[65] Since
the labor law contain provision to protect Nepali migrants working abroad, this
leads the Law on Social Security for persons defined under the labor law limits
its application to only workers who are employing in the territory too.[66]
At this point, it can be concluded that workers can get protection unless they
perform their jobs in the country and for those who migrate for employment will
lose their rights and protection from the national legislation. Migrant workers are vulnerable group due to
the lack of protection from both home and host countries. In the host country,
they can be denied the access or have limited coverage of the social security
scheme because of their status, nationality, insufficient duration of
employment period and residence.[67]
Nepalese migrant workers travel through
both legal and illegal channels. Until now, Nepali does not have any
comprehensive legislation to extend the social security protection to migrant
workers outside the country. According
to the international instruments on migrant workers’ social security, migrants
should have access to social security benefits. With regard to this, ILO has
played an important role by adopting conventions and recommendations to
safeguard migrant workers’ social security right.
5.3 Governance
This section analyses institutional and
organizational practice issues concerning the implementation of the Right to
Social Security. In addition to the challenges deriving from the legislation
loophole, the realization of the Right to Social Security also encounters with
the inefficient governance. Generally, there are main four key governance
issues; poor coordination within the overall social protection system, unclear
institutional responsibilities with a lack of implementation capacity, conflicting
systems of accountability, and inadequate monitoring and evaluation that impede
the implementation of the Contribution Based Social Security.
In Nepal, government has also recognized
that the impact of existing social protection intervention is limited by lack
of coordination between various ministries and non-government organizations
(NGOs). Nepal is emerging as a country
that efforts to extend social security benefit for the population; hence,
institutional capacity is very important to achieve the ambition. In this
respect, SSF has expressed its concern about the its organization’s capability
in relation to the implementation of the social security scheme for private
employees due to limited capacity of some staffs, non-smooth data management
and some late deliveries. To overcome the challenges, effective management of
the scheme as an independent body, there need to develop required expertise and
management instruments, including Information Technology (IT) systems and
administrative tools such as rules and regulations, operational
procedures. Meanwhile, if social
security scheme is decentralized, provincial and local government agencies’ and
authorities’ capacity or lack thereof should be taken into consideration.
SSF beneficiaries under these schemes
are required to pay contribution to secure resource allocation for benefit
distribution. However, only beneficiaries (employees) under SSF have paid
contribution. As discussed earlier, it is determined to collect 20 % from
employers and 11 % from workers as contribution rate but collection of
contribution has not been made and there still has no commitment from employer
side.
Chapter 6
Conclusion
In conclusion, the Right to Social
Security is a human right enshrined in numerous instruments at the
international and regional levels. This right constitutes one of the basic
rights stipulated in Nepalese Constitution. After the constitution adopted in
2015 and as a party to the international instruments such as ICESCR, Nepal has
committed to realizing this right by initiating the legal framework and
policies to provide social protection to all Nepalese. However, this study
found that implementation of the Right to Social Security in Nepal is still not
fully effective in several ways.
Firstly, scheme coverage is very limited
and have not covered informal sector. The vast majority of people are left
behind; only some categories of employment and workers are covered selectively.
Moreover, not all workers in formal economy enjoy comprehensive social security
benefit due to the fact that, for instance, in private sector, employment
injury coverage is currently expanded to only enterprises that consist of eight
workers and above.
Secondly, the exclusion of workers from
social security law. Some workers’ categories are excluded from protection
under national law. For instance, domestic worker is not covered by the Labor
Law. This exclusion is further found in Law on Social Security Scheme for
Persons defined under the provision of Labor Law. Similarly, the workers in
informal employment are not rigorously protected because they fall outside of
Labor Law. Although the Law on Social Security Scheme envisages providing
social security benefit to those workers but formulation of benefit is yet to
be designed.
Fourth, Nepali migrant workers’ right to
social security are also not protected. Due to the absence of protective
provision under domestic law, those migrants are not provided social protection
upon their return. They still face a lot of challenges upon return, for
instance, lack of health care and income insecurity because they are not
entitled to sickness or old age benefits. Furthermore, because of the social
security agreement has not been concluded between Nepal and other destination
countries, those migrants are left behind protection during their stay in host
countries.
In addition to challenges arising from
provisions of national legislations, there are other multiple factors that
hinder full realization of Right to Social Security. The laws and regulations
regarding social security are fragmented and inconsistent.
First, in relation to the governance
issues: poor coordination within overall social protection system; unclear
institutional responsibility, disbursement is still administered through
respective line ministries of beneficiaries; and institutional capacity.
Second, Nepali’s economy still relies
heavily on the informal economy. It is understood that large majority is
outside of the social security protection. The implementation of Right to
Social Security also faces shortage of national budget.
Third, social context also contributes
to create difficulty in implementing Right to Social Security because of
poverty especially populations in rural areas. Comparatively large number of
Nepalese engage in precarious and hazardous works mainly on informal economy
and others migrate to various countries for low-skilled works where they encounter
risks, such as labor exploitation, trafficking or exclusion from social
protection in the host countries.
The Right to Social Security is very
important in alleviating poverty and social exclusion. It should be time to
strengthen the implementation of Right to Social Security through
international, regional cooperation so that migrants can be protected and feel
secure when they migrate in the region. Alongside, Nepalese national
legislation should be revised to make Right to Social Security portable and
transferrable across the borders. Recent
development such as continuous adoption of legislation on social security,
Sub-Decree on Health Care for Persons defined under the provision of Labor Law
of 2017, strong commitment to overcome mentioned challenges and achieve
comprehensive implementation of the Right to Social Security are creating
positive vibes on implementing Right to social security.
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[1] Encyclopaedia Britanica, Vol.20, p.762.
[2] article 22, 23&25 of
UDHR, 1948 and article 9, 10 (2) &10 (3) of ICESCR
[3] ILO, “Social Security for Social Justice and a Fair Globalization”,
(Report VI, 2011), page.9.
[4] Beth Goldblatt, “Gender,
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Journal of Law in Context, 10,4 pp. 460–477, Cambridge University Press 2014),
page.462.
[5] Article 34(2) and 43 of Nepal’s Constitution (2015).
[6] Nepal has ratified this International Convention on Economic, Social and
Cultural Rights Covenant on 14 May 1991.
[7]Nepal has retified this Rights of Persons with Disabilities (CRPD)
convention on 7 may 2010.
[8] Nepal has ratified this International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD) convention on 7
January 1971.
[9] Nepal has ratified this Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) convention on 5 Febuary 1991.
[10] Suchita Manajit &Mai
Thi Thanh Nga Na, “Migrant Workers’ rights to Social Protection in ASEAN: case
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(Friedrich-Ebert-Stiftung, Office for Regional Cooperation in Asia, 2011),
page.15
[11] World Social Security
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2011), page.13.
[12] Ibid. para. 13&14.
[13] Ibid. para. 6&7.
[14] See also: Social Protection Floors Recommendation (202), 2012.
[15] United Nations Committee on
Economic, Social and Cultural Rights (CESCR), General Comment No.19: The Right
to Social Security (art.9 of the Covenant), 23 Nov 2007, (E/C.12/GC/19),
para.11.
[16] Ibid., para. 12-21.
[17] Ibid., para. 22.
[18] See also, <http://socialprotection-humanrights.org/framework/principles/standards-of-accessibility-adaptability-andacceptability/>
[19] United Nations Committee on
Economic, Social and Cultural Rights (CESCR), General Comment No.19: The Right
to Social Security (art.9 of the Covenant), 23 Nov 2007, (E/C.12/GC/19),
para.23-27.
[20] See also,
<http://www.social-protection.org/gimi/gess/ShowTheme.action?id=11>
[21] Ibid.
[22] Ibid., See also, Townsend,
Peter, “Social Security and Human Rights”, in Peter Townsend (ed.), “Building
Decent Societies: Rethinking the Role of Social Security in Development”,
(Basingstoke: Palgrave Macmillan, 2009), page.36. And Goldblatt, Beth, “Gender,
poverty and the development of the right to social security”, (International
Journal of Law in Context, 10,4 pp. 460–477, Cambridge University Press 2014),
page.461.
[23] See also,
<http://www.social-protection.org/gimi/gess/ShowTheme.action?id=11>
[24] Townsend, Peter, “Social
Security and Human Rights”, in Peter Townsend (ed.), “Building Decent
Societies: Rethinking the Role of Social Security in Development”,
(Basingstoke: Palgrave Macmillan, 2009), page.36. And Goldblatt, Beth, “Gender,
poverty and the development of the right to social security”, (International
Journal of Law in Context, 10,4 pp. 460–477, Cambridge University Press 2014),
page.461. 28
[25] “Social Security for Social
Justice and Fair Globalization”, (Report VI, ILO, 2011), page.9.
[26] See article 3 of the
Declaration of Philadelphia, 1944.
[27] See article 22, 23&25
of UDHR, 1948.
[28] See article 9, 10 (2)
&10 (3) of ICESCR.
[29] See article 5 (e) (iv) of
ICERD.
[30] See article 11 (1) (e), 11
(2) (b) and 14 (2) of CEDAW.
[31] See article 28 of CRPD.
[32] Article 26, 27(1), 27(2)
and 27(4) of CRC.
[33] Suchita Manajit &Mai
Thi Thanh Nga Na, “Migrant Workers’ rights to Social Protection in ASEAN: case
study of Indonesia, Philippines, Singapore and Thailand”,
(Friedrich-Ebert-Stiftung, Office for Regional Cooperation in Asia, 2011),
page.25
[34] “Social Security for Social
Justice and a Fair Globalization”, (ILO, 2011), page.12&13. The eight
conventions that are still up to date: - Social Security (Minimum Standards)
Convention, 1952 (No. 102); - Equality
of Treatment (Social Security) Convention, 1962 (No. 118); - Employment Injury Benefits Convention, 1964
[Schedule I amended in 1980] (No. 121);
- Invalidity, Old-Age and Survivors’ Benefits Convention, 1967 (No.
128); - Medical Care and Sickness
Benefits Convention, 1969 (No. 130); -
Maintenance of Social Security Rights Convention, 1982 (No. 157); - Employment Promotion and Protection against
Unemployment Convention, 1988 (No. 168), and
- Maternity Protection Convention, 2000 (No. 183).
[35] The right to social
security of migrant workers is addressed in article 27 of the convention.
[36] See article 5 (e) (iv) of
the Convention.
[37] See article 8 of the
Resolution relating to Social Security Protection.
[38] Right regarding
labor, Article 34.2.
[39] Right to social security, Article 43.
[40] Contribution Based Social Security
Act, 2017 Section 10.
[41] United Nations Committee on
Economic, Social and Cultural Rights (CESCR), General Comment No.19: The Right
to Social Security (art.9 of the Covenant), 23 Nov 2007, (E/C.12/GC/19),
para.40.
[42] Ibid., para.3.
[43] Fukuda-Parr, Sakiko. et al,
“Fulfilling Social and Economic Rights: Measuring Social and Economic Rights”,
(Oxford Scholarship Online: January 2015), page.15&16.
[44] United Nations Committee on
Economic, Social and Cultural Rights (CESCR), General Comment No.19: The Right
to Social Security (art.9 of the Covenant), 23 Nov 2007, (E/C.12/GC/19),
para.59.
[45] Ibid., para.40&41.
[46] “The Right to Social
Security in the Constitutions of the World: Broadening the Moral and Legal
Space for Social Justice”, (ILO Global Study, Volume 1: Europe, ILO, 2016),
page. xvi & 1.
[47] Moeckli, Daniel. and Shah,
Sangeeta. and Sivakumaran, Sandesh. and Harris, D. J. “International human rights law/ edited by
Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran; consultant editor, David
Harris”, (Oxford University Press Oxford 2010), page.101.
[48] United Nations Committee on
Economic, Social and Cultural Rights (CESCR), General Comment No.19: The Right
to Social Security (art.9 of the Covenant), 23 Nov 2007, (E/C.12/GC/19),
para.44.
[49] United Nations Committee on
Economic, Social and Cultural Rights (CESCR), General Comment No.19: The Right
to Social Security (art.9 of the Covenant), 23 Nov 2007, (E/C.12/GC/19),
para.45.
[50] Ibid., para.47-51.
[51] Ibid., para.52-58.
[52] Ibid., para.52-58.
[53] Ibid., para.64.
[54] Social Security Scheme Operating Procedure,
2075 (2018)
[55] Social Security Scheme Operating Procedure,
2075 (2018) chapter 2.
[56] Social Security Scheme Operating Procedure,
2075 (2018) chapter 3.
[57] Social Security Scheme Operating Procedure,
2075 (2018) chapter 4.
[58] Social Security Scheme Operating Procedure,
2075 (2018) chapter 5.
[59] ILO Recommendation 204,
“Transition from the Informal to the Formal Economy”, (12 June 2015), page. 2
[60] Report VI: “Decent Work and
Informal Economy”, (ILO, 2002), page.1&2.
[61] ILO Recommendation 204,
“Transition from the Informal to the Formal Economy”, (12 June 2015), page. 2
[62] Nicola Smit &Letlhokwa George Mpedi, “Social Protection for
Developing Countries: can social insurance be more relevant for those working
in the informal economy?”, (Law Democracy &Development, Volume 14, 2010),
page.160.
[63] Resolution Concerning Decent Work and the Informal Economy,
(adopted by ILO at the 90th session, 2002), para.12.
[64] Nicola smit &Letlhokwa George Mpedi, “Social Protection for
Developing Countries: can social be more relevant for those working in the
informal economy?”, (Law Democracy &Development, Volume 14, 2010), page.175.
[65] Section 2(X) of Nepal Labor
Law, 2017.
[66] Ibid.
[67] ILO, “Labor Migration Highlight
No.04: Social Protection for Migrant Workers”, (ILO, June 2015), page.1.
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