Convention
concerning Employment Promotion and Protection against Unemployment
(Note: Date of coming into force: 17:10:1991.)
The General Conference of the
International Labour Organisation,
Having been convened at Geneva by the
Governing Body of the International Labour Office, and having met in its
Seventy-fifth Session on 1 June 1988, and
Emphasising the importance of work and
productive employment in any society not only because of the resources which
they create for the community, but also because of the income which they bring
to workers, the social role which they confer and the feeling of self-esteem
which workers derive from them, and
Recalling the existing international
standards in the field of employment and unemployment protection the
Unemployment Provision Convention and Recommendation, 1934, the Unemployment
(Young Persons) Recommendation, 1935, the Income Security Recommendation, 1944,
the Social Security (Minimum Standards) Convention, 1952, the Employment Policy
Convention and Recommendation, 1964, the Human Resources Development Convention
and Recommendation, 1975, the Labour Administration Convention and Recommendation,
1978, and the Employment Policy (Supplementary Provisions) Recommendation,
1984, and
Considering the widespread unemployment
and underemployment affecting various countries throughout the world at all
stages of development and in particular the problems of young people, many of
whom are seeking their first employment, and
Considering that, since the adoption of
the international instruments concerning protection against unemployment
referred to above, there have been important new developments in the law and
practice of many Members necessitating the revision of existing standards, in
particular the Unemployment Provision Convention, 1934, and the adoption of new
international standards concerning the promotion of full, productive and freely
chosen employment by all appropriate means, including social security, and
Noting that the provisions concerning
unemployment benefit in the Social Security (Minimum Standards) Convention,
1952, lay down a level of protection that has now been surpassed by most of the
existing compensation schemes in the industrialised countries and, unlike
standards concerning other benefits, have not been followed by higher
standards, but that the standards in question can still constitute a target for
developing countries that are in a position to set up an unemployment
compensation scheme, and
Recognising that policies leading to
stable, sustained, non-inflationary economic growth and a flexible response to
change, as well as to creation and promotion of all forms of productive and
freely chosen employment including small undertakings, co-operatives,
self-employment and local initiatives for employment, even through the
re-distribution of resources currently devoted to the financing of purely
assistance-oriented activities towards activities which promote employment
especially vocational guidance, training and rehabilitation, offer the best
protection against the adverse effects of involuntary unemployment, but that
involuntary unemployment nevertheless exists and that it is therefore important
to ensure that social security systems should provide employment assistance and
economic support to those who are involuntarily unemployed, and
Having decided upon the adoption of
certain proposals with regard to employment promotion and social security which
is the fifth item on the agenda of the session with a view, in particular, to
revising the Unemployment Provision Convention, 1934, and
Having determined that these proposals
shall take the form of an international Convention,
adopts the twenty-first day of June of
the year one thousand nine hundred and eighty-eight, the following Convention,
which may be cited as the Employment Promotion and Protection against
Unemployment Convention, 1988:
I. General Provisions
Article 1
In this Convention:
(a) the term legislation includes
any social security rules as well as laws and regulations;
(b) the term prescribed means
determined by or in virtue of national legislation.
Article 2
Each Member shall take appropriate
steps to co-ordinate its system of protection against unemployment and its
employment policy. To this end, it shall seek to ensure that its system of
protection against unemployment, and in particular the methods of providing
unemployment benefit, contribute to the promotion of full, productive and
freely chosen employment, and are not such as to discourage employers from
offering and workers from seeking productive employment.
Article 3
The provisions of this Convention shall
be implemented in consultation and co-operation with the organisations of
employers and workers, in accordance with national practice.
Article 4
1. Each Member which ratifies this
Convention may, by a declaration accompanying its ratification, exclude the
provisions of Part VII from the obligations accepted by ratification.
2. Each Member which has made a
declaration under paragraph 1 above may withdraw it at any time by a subsequent
declaration.
Article 5
1. Each Member may avail itself, by a
declaration accompanying its ratification, of at most two of the temporary
exceptions provided for in Article 10, paragraph 4, Article 11, paragraph 3,
Article 15, paragraph 2, Article 18, paragraph 2, Article 19, paragraph 4,
Article 23, paragraph 2, Article 24, paragraph 2, and Article 25, paragraph 2. Such
a declaration shall state the reasons which justify these exceptions.
2. Notwithstanding the provisions of
paragraph 1 above, a Member, where it is justified by the extent of protection
of its social security system, may avail itself, by a declaration accompanying
its ratification, of the temporary exceptions provided for in Article 10,
paragraph 4, Article 11, paragraph 3, Article 15, paragraph 2, Article 18,
paragraph 2, Article 19, paragraph 4, Article 23, paragraph 2, Article 24,
paragraph 2 and Article 25, paragraph 2. Such a declaration shall state the
reasons which justify these exceptions.
3. Each Member which has made a
declaration under paragraph 1 or paragraph 2 shall include in its reports on
the application of this Convention submitted under article 22 of the
Constitution of the International Labour Organisation a statement in respect of
each exception of which it avails itself-
(a) that its reason for doing so
subsists; or
(b) that it renounces its right to
avail itself of the exception in question as from a stated date.
4. Each Member which has made a
declaration under paragraph 1 or paragraph 2 shall, as appropriate to the terms
of such declaration and as circumstances permit-
(a) cover the contingency of partial
unemployment;
(b) increase the number of persons
protected;
(c) increase the amount of the
benefits;
(d) reduce the length of the waiting
period;
(e) extend the duration of payment of
benefits;
(f) adapt statutory social security
schemes to the occupational circumstances of part-time workers;
(g) endeavour to ensure the provision
of medical care to persons in receipt of unemployment benefit and their
dependants;
(h) endeavour to guarantee that the
periods during which such benefit is paid will be taken into account for the
acquisition of the right to social security benefits and, where appropriate,
the calculation of disability, old-age and survivors' benefit.
Article 6
1. Each Member shall ensure equality of
treatment for all persons protected, without discrimination on the basis of
race, colour, sex, religion, political opinion, national extraction,
nationality, ethnic or social origin, disability or age.
2. The provisions of paragraph 1 shall
not prevent the adoption of special measures which are justified by the
circumstances of identified groups under the schemes referred to in Article 12,
paragraph 2, or are designed to meet the specific needs of categories of
persons who have particular problems in the labour market, in particular
disadvantaged groups, or the conclusion between States of bilateral or
multilateral agreements relating to unemployment benefits on the basis of
reciprocity.
II. Promotion of Productive Employment
Article 7
Each Member shall declare as a priority
objective a policy designed to promote full, productive and freely chosen
employment by all appropriate means, including social security. Such means
should include, inter alia, employment services, vocational training and
vocational guidance.
Article 8
1. Each Member shall endeavour to
establish, subject to national law and practice, special programmes to promote
additional job opportunities and employment assistance and to encourage freely
chosen and productive employment for identified categories of disadvantaged
persons having or liable to have difficulties in finding lasting employment
such as women, young workers, disabled persons, older workers, the long-term
unemployed, migrant workers lawfully resident in the country and workers
affected by structural change.
2. Each Member shall specify, in its
reports under article 22 of the Constitution of the International Labour
Organisation, the categories of persons for whom it undertakes to promote
employment programmes.
3. Each Member shall endeavour to
extend the promotion of productive employment progressively to a greater number
of categories than the number initially covered.
Article 9
The measures envisaged in this Part
shall be taken in the light of the Human Resources Development Convention and
Recommendation, 1975, and the Employment Policy (supplementary Provisions)
Recommendation, 1984.
III. Contingencies Covered
Article 10
1. The contingencies covered shall
include, under prescribed conditions, full unemployment defined as the loss of
earnings due to inability to obtain suitable employment with due regard to the
provisions of Article 21, paragraph 2, in the case of a person capable of
working, available for work and actually seeking work.
2. Each Member shall endeavour to
extend the protection of the Convention, under prescribed conditions, to the
following contingencies -
(a) loss of earnings due to partial
unemployment, defined as a temporary reduction in the normal or statutory hours
of work; and
(b) suspension or reduction of earnings
due to a temporary suspension of work, without any break in the employment
relationship for reasons of, in particular, an economic, technological,
structural or similar nature.
3. Each Member shall in addition
endeavour to provide the payment of benefits to part-time workers who are
actually seeking full-time work. The total of benefits and earnings from their
part-time work may be such as to maintain incentives to take up full-time work.
4. Where a declaration made in virtue
of Article 5 is in force, the implementation of paragraphs 2 and 3 above may be
deferred.
IV. Persons Protected
Article 11
1. The persons protected shall comprise
prescribed classes of employees, constituting not less than 85 per cent of all
employees, including public employees and apprentices.
2. Notwithstanding the provisions of
paragraph 1 above, public employees whose employment up to normal retiring age
is guaranteed by national laws or regulations may be excluded from protection.
3. Where a declaration made in virtue
of Article 5 is in force, the persons protected shall comprise-
(a) prescribed classes of employees
constituting not less than 50 per cent of all employees; or
(b) where specifically justified by the
level of development, prescribed classes of employees constituting not less than
50 per cent of all employees in industrial workplaces employing 20 persons or
more.
V. Methods of Protection
Article 12
1. Unless it is otherwise provided in
this Convention, each Member may determine the method or methods of protection
by which it chooses to put into effect the provisions of the Convention,
whether by a contributory or non-contributory system, or by a combination of
such systems.
2. Nevertheless, if the legislation of
a Member protects all residents whose resources, during the contingency, do not
exceed prescribed limits, the protection afforded may be limited, in the light
of the resources of the beneficiary and his or her family, in accordance with
the provisions of Article 16.
VI. Benefit to be Provided
Article 13
Benefits provided in the form of
periodical payments to the unemployed may be related to the methods of
protection.
Article 14
In cases of full unemployment, benefits
shall be provided in the form of periodical payments calculated in such a way
as to provide the beneficiary with partial and transitional wage replacement
and, at the same time, to avoid creating disincentives either to work or to
employment creation.
Article 15
1. In cases of full unemployment and
suspension of earnings due to a temporary suspension of work without any break
in the employment relationship, when this contingency is covered, benefits
shall be provided in the form of periodical payments, calculated as follows:
(a) where these benefits are based on
the contributions of or on behalf of the person protected or on previous
earnings, they shall be fixed at not less than 50 per cent of previous
earnings, it being permitted to fix a maximum for the amount of the benefit or
for the earnings to be taken into account, which may be related, for example,
to the wage of a skilled manual employee or to the average wage of workers in
the region concerned;
(b) where such benefits are not based
on contributions or previous earnings, they shall be fixed at not less than 50
per cent of the statutory minimum wage or of the wage of an ordinary labourer,
or at a level which provides the minimum essential for basic living expenses,
whichever is the highest;
2. Where a declaration made in virtue
of Article 5 is in force, the amount of the benefits shall be equal-
(a) to not less than 45 per cent of the
previous earnings; or
(b) to not less than 45 per cent of the
statutory minimum wage or of the wage of an ordinary labourer but no less than
a level which provides the minimum essential for basic living expenses.
3. If appropriate, the percentages
specified in paragraphs 1 and 2 may be reached by comparing net periodical
payments after tax and contributions with net earnings after tax and
contributions.
Article 16
Notwithstanding the provisions of
Article 15, the benefit provided beyond the initial period specified in Article
19, paragraph 2 (a), as well as benefits paid by a Member in accordance with
Article 12, paragraph 2, may be fixed after taking account of other resources,
beyond a prescribed limit, available to the beneficiary and his or her family,
in accordance with a prescribed scale. In any case, these benefits, in
combination with any other benefits to which they may be entitled, shall
guarantee them healthy and reasonable living conditions in accordance with
national standards.
Article 17
1. Where the legislation of a Member
makes the right to unemployment benefit conditional upon the completion of a
qualifying period, this period shall not exceed the length deemed necessary to
prevent abuse.
2. Each Member shall endeavour to adapt
the qualifying period to the occupational circumstances of seasonal workers.
Article 18
1. If the legislation of a Member
provides that the payment of benefit in cases of full unemployment should begin
only after the expiry of a waiting period, such period shall not exceed seven
days.
2. Where a declaration made in virtue
of Article 5 is in force, the length of the waiting period shall not exceed ten
days.
3. In the case of seasonal workers the
waiting period specified in paragraph 1 above may be adapted to their
occupational circumstances.
Article 19
1. The benefits provided in cases of
full unemployment and suspension of earnings due to a temporary suspension of
work without any break in the employment relationship shall be paid throughout
these contingencies.
2. Nevertheless, in the case of full
unemployment-
(a) the initial duration of payment of
the benefit provided for in Article 15 may be limited to 26 weeks in each spell
of unemployment, or to 39 weeks over any period of 24 months;
(b) in the event of unemployment
continuing beyond this initial period of benefit, the duration of payment of
benefit, which may be calculated in the light of the resources of the
beneficiary and his or her family in accordance with the provisions of Article
16, may be limited to a prescribed period.
3. If the legislation of a Member
provides that the initial duration of payment of the benefit provided for in
Article 15 shall vary with the length of the qualifying period, the average
duration fixed for the payment of benefits shall be at least 26 weeks.
4. Where a declaration made in virtue
of Article 5 is in force, the duration of payment of benefit may be limited to
13 weeks over any periods of 12 months or to an average of 13 weeks if the
legislation provides that the initial duration of payment shall vary with the
length of the qualifying period.
5. In the cases envisaged in paragraph
2 (b) above each Member shall endeavour to grant appropriate additional
assistance to the persons concerned with a view to permitting them to find
productive and freely chosen employment, having recourse in particular to the
measures specified in Part II.
6. The duration of payment of benefit
to seasonal workers may be adapted to their occupational circumstances, without
prejudice to the provisions of paragraph 2 (b) above.
Article 20
The benefit to which a protected person
would have been entitled in the cases of full or partial unemployment or
suspension of earnings due to a temporary suspension of work without any break
in the employment relationship may be refused, withdrawn, suspended or reduced
to the extent prescribed-
(a) for as long as the person concerned
is absent from the territory of the Member;
(b) when it has been determined by the
competent authority that the person concerned had deliberately contributed to
his or her own dismissal;
(c) when it has been determined by the
competent authority that the person concerned has left employment voluntarily
without just cause;
(d) during the period of a labour
dispute, when the person concerned has stopped work to take part in a labour
dispute or when he or she is prevented from working as a direct result of a
stoppage of work due to this labour dispute;
(e) when the person concerned has
attempted to obtain or has obtained benefits fraudulently;
(f) when the person concerned has
failed without just cause to use the facilities available for placement,
vocational guidance, training, retraining or redeployment in suitable work;
(g) as long as the person concerned is
in receipt of another income maintenance benefit provided for in the
legislation of the Member concerned, except a family benefit, provided that the
part of the benefit which is suspended does not exceed that other benefit.
Article 21
1. The benefit to which a protected
person would have been entitled in the case of full unemployment may be
refused, withdrawn, suspended or reduced, to the extent prescribed, when the
person concerned refuses to accept suitable employment.
2. In assessing the suitability of
employment, account shall be taken, in particular, under prescribed conditions
and to an appropriate extent, of the age of unemployed persons, their length of
service in their former occupation, their acquired experience, the length of
their period of unemployment, the labour market situation, the impact of the
employment in question on their personal and family situation and whether the
employment is vacant as a direct result of a stoppage of work due to an
on-going labour dispute.
Article 22
When protected persons have received
directly from their employer or from any other source under national laws or
regulations or collective agreements, severance pay, the principal purpose of
which is to contribute towards compensating them for the loss of earnings
suffered in the event of full unemployment-
(a) the unemployment benefit to which
the persons concerned would be entitled may be suspended for a period
corresponding to that during which the severance pay compensates for the loss
of earnings suffered; or
(b) the severance pay may be reduced by
an amount corresponding to the value converted into a lump sum of the
unemployment benefit to which the persons concerned are entitled for a period
corresponding to that during which the severance pay compensates for the loss
of earnings suffered, as each Member may decide.
Article 23
1. Each Member whose legislation
provides for the right to medical care and makes it directly or indirectly
conditional upon occupational activity shall endeavour to ensure, under
prescribed conditions, the provision of medical care to persons in receipt of
unemployment benefit and to their dependants.
2. Where a declaration made in virtue
of Article 5 is in force, the implementation of paragraph 1 above may be
deferred.
Article 24
1. Each Member shall endeavour to
guarantee to persons in receipt of unemployment benefit, under prescribed
conditions, that the periods during which benefits are paid will be taken into
consideration-
(a) for acquisition of the right to
and, where appropriate, calculation of disability, old-age and survivors'
benefit, and
(b) for acquisition of the right to
medical care and sickness, maternity and family benefit after the end of
unemployment, when the legislation of the Member concerned provides for such
benefits and makes them directly or indirectly conditional upon occupational
activity.
2. Where a declaration made in virtue
of Article 5 is in force, the implementation of paragraph 1 above may be
deferred.
Article 25
1. Each Member shall ensure that
statutory social security schemes which are based on occupational activity are
adjusted to the occupational circumstances of part-time workers, unless their
hours of work or earnings can be considered, under prescribed conditions, as
negligible.
2. Where a declaration made in virtue
of Article 5 is in force, the implementation of paragraph 1 above may be
deferred.
VII. Special Provisions for New
Applicants for Employment
Article 26
1. Members shall take account of the
fact that there are many categories of persons seeking work who have never
been, or have ceased to be, recognised as unemployed or have never been, or
have ceased to be, covered by schemes for the protection of the unemployed. Consequently,
at least three of the following ten categories of persons seeking work shall
receive social benefits, in accordance with prescribed terms and conditions:
(a) young persons who have completed
their vocational training;
(b) young persons who have completed
their studies;
(c) young persons who have completed
their compulsory military service;
(d) persons after a period devoted to
bringing up a child or caring for someone who is sick, disabled or elderly;
(e) persons whose spouse had died, when
they are not entitled to a survivor's benefit;
(f) divorced or separated persons;
(g) released prisoners;
(h) adults, including disabled persons,
who have completed a period of training;
(i) migrant workers on return to their
home country, except in so far as they have acquired rights under the
legislation of the country where they last worked;
(j) previously self-employed persons.
2. Each Member shall specify, in its
reports under article 22 of the Constitution of the International Labour
Organisation, the categories of persons listed in paragraph 1 above which it
undertakes to protect.
3. Each Member shall endeavour to
extend protection progressively to a greater number of categories than the
number initially protected.
VIII. Legal, Administrative and
Financial Guarantees
Article 27
1. In the event of refusal, withdrawal,
suspension or reduction of benefit or dispute as to its amount, claimants shall
have the right to present a complaint to the body administering the benefit
scheme and to appeal thereafter to an independent body. They shall be informed
in writing of the procedures available, which shall be simple and rapid.
2. The appeal procedure shall enable
the claimant, in accordance with national law and practice, to be represented
or assisted by a qualified person of the claimant's choice or by a delegate of
a representative workers' organisation or by a delegate of an organisation
representative of protected persons.
Article 28
Each Member shall assume general responsibility
for the sound administration of the institutions and services entrusted with
the application of the Convention.
Article 29
1. When the administration is directly
entrusted to a government department responsible to Parliament, representatives
of the protected persons and of the employers shall be associated in the
administration in an advisory capacity, under prescribed conditions.
2. When the administration is not
entrusted to a government department responsible to Parliament-
(a) representatives of the protected
persons shall participate in the administration or be associated therewith in
an advisory capacity under prescribed conditions;
(b) national laws or regulations may
also provide for the participation of employers' representatives;
(c) the laws or regulations may further
provide for the participation of representatives of the public authorities.
Article 30
In cases where subsidies are granted by
the State or the social security system in order to safeguard employment,
Members shall take the necessary steps to ensure that the payments are expended
only for the intended purpose and to prevent fraud or abuse by those who
receive such payments.
Article 31
This Convention revises the
Unemployment Provision Convention, 1934.
Article 32
The formal ratifications of this
Convention shall be communicated to the Director-General of the International
Labour Office for registration.
Article 33
1. This Convention shall be binding
only upon those Members of the International Labour Organisation whose
ratifications have been registered with the Director-General.
2. It shall come into force twelve
months after the date on which the ratifications of two Members have been
registered with the Director-General.
3. Thereafter, this Convention shall
come into force for any Member twelve months after the date on which its
ratification has been registered.
Article 34
1. A Member which has ratified this
Convention may denounce it after the expiration of ten years from the date on
which the Convention first comes into force, by an act communicated to the
Director-General of the International Labour Office for registration. Such
denunciation shall not take effect until one year after the date on which it is
registered.
2. Each Member which has ratified this
Convention and which does not, within the year following the expiration of the
period of ten years mentioned in the preceding paragraph, exercise the right of
denunciation provided for in this Article, will be bound for another period of
ten years and, thereafter, may denounce this Convention at the expiration of
each period of ten years under the terms provided for in this Article.
Article 35
1. The Director-General of the
International Labour Office shall notify all Members of the International Labour
Organisation of the registration of all ratifications and denunciations
communicated to him by the Members of the Organisation.
2. When notifying the members of the
Organisation of the registration of the second ratification communicated to
him, the Director-General shall draw the attention of the Members of the
Organisation to the date upon which the Convention will come into force.
Article 36
The Director-General of the
International Labour Office shall communicate to the Secretary-General of the
United Nations for registration in accordance with Article 102 of the Charter
of the United Nations full particulars of all ratifications and acts of
denunciation registered by him in accordance with the provisions of the
preceding Articles.
Article 37
At such times as it may consider
necessary the Governing Body of the International Labour Office shall present
to the General Conference a report on the working of this Convention and shall
examine the desirability of placing on the agenda of the Conference the
question of its revision in whole or in part.
Article 38
1. Should the Conference adopt a new
Convention revising this Convention in whole or in part, then, unless the new
Convention otherwise provides-
(a) the ratification by a Member of the
new revising Convention shall ipso jure involve the immediate denunciation of
this Convention, notwithstanding the provisions of Article 34 above, if and
when the new revising Convention shall have come into force;
(b) as from the date when the new
revising Convention comes into force this Convention shall cease to be open to
ratification by the Members.
2. This Convention shall in any case
remain in force in its actual form and content for those Members which have ratified
it but have not ratified the revising Convention.
Article 39
The English and French versions of the
text of this Convention are equally authoritative.