The ILO Social Protection Floors Recommendation and its relevance in the European context

Abstract

This article discusses the Social Protection Floors Recommendation, 2012 (No. 202). This instrument takes account of the global recognition that social security plays a key role in addressing major challenges such as financial instability, growing inequality, insecure labour markets, large-scale migration flows, and population ageing. A national social protection floor is meant as a tool to prevent and reduce poverty and social insecurity by providing, over the lifecycle, health care and income security for all, at least at a basic level. After briefly depicting the background, objectives and substance of the Recommendation, the article examines its relevance for EU countries. The usefulness of the Recommendation for states with well-developed welfare systems, is demonstrated by pointing to several topical social security issues that constitute a lack of compliance with the concept of social protection floors.

Keywords

Social security social protection international labour organisation social protection floors ILO recommendation no. 202

Introduction

On the occasion of the International Labour Organisation’s (ILO’s) 100th anniversary, this article examines recent developments in social security standard setting on the basis of the latest ILO instrument on social security: the Social Protection Floors Recommendation, 2012 (No. 202) (referred to as ‘the Recommendation’).¹ The Recommendation was subject to the centenary’s General Survey, which reflects the responses of governments and social partners to a questionnaire on the application of this instrument.² The choice of this subject was motivated by the recognition among ILO Member states of an urgent need for adequate social protection for all.³ The sense of urgency for this subject had been fuelled by Goal 1 of the Sustainable Development Goals (SDGs) ‘to end poverty in all its forms everywhere,’ and especially with the third target to ‘implement nationally appropriate social protection systems and measures for all, including floors, and by 2030 achieve substantial coverage of the poor and the vulnerable’.⁴ The General Survey on the Social Protection Floors Recommendation (further referred to as ‘the General Survey’)⁵ underpins the value of the Recommendation as a tool for the realisation of the SDGs, and is intended to help governments and social partners in developing national strategies for the expansion of social protection. It is a rich source of information and forms the main point of reference for this article.

The Recommendation has not attracted widespread political attention in the European context, other than occasionally in connection with development cooperation.⁶ Similarly, in the academic field of social law and social policy within the European region, very few reports and articles have been dedicated to this new international legal instrument on social security.⁷ Considering the divergent approach of and new elements included in the Recommendation, as compared to Conventions on social security, it deserves more attention and research. Furthermore, the Recommendation addresses several social security issues that are topical in many EU countries, such as increasing income inequality, discrimination, persistent gender gaps, social exclusion, and poverty. Also, the fact that the Recommendation touches on a variety of disciplines, such as social security law, labour law, human rights law, economics, social policy and social work, makes it interesting for a broader EU-wide discussion on social protection systems that leave no one behind.

In an attempt to nourish such discussion, this article explores the objectives and substance of the Recommendation (in Section ‘The recommendation – an integrated approach to social protection’), and discusses its relevance for EU countries by elaborating several implementation issues (in Section ‘The relevance of the recommendation for EU countries’). It shows how the Recommendation may guide Member states in developing policies to combat social protection deficits that relate to, for example, fragmentation in social policies; austerity measures implemented in response to the economic crises; the precarious balance between social security and activation measures; the advent of flexible work arrangements; increased numbers of (irregular) migrants; and the need for a broader notion of social dialogue.

The recommendation – an integrated approach to social protection

Background and objective

In 2012, the International Labour Conference adopted Recommendation No. 202 as a guiding instrument to strive for at least a basic level of social protection, including health care, for everyone.⁸ The almost unanimous adoption of the Recommendation has been interpreted as a world-wide recognition of the role of social protection in addressing current global challenges such as financial instability, growing inequality, insecure labour markets with an increase of precarious contracts and widespread informality, large-scale migration flows, and, in many parts of the world, population ageing.⁹

One of the features of the Recommendation that has been highlighted both in the text itself and in the various reports and discussions of this instrument is that social security is crucial for sustainable long-term growth and social inclusion. The preamble of the Recommendation states, for example, ‘that social security systems act as automatic social and economic stabilisers, stimulate aggregate demand in times of crisis and beyond, and help support a transition to a more sustainable economy’.¹⁰ The General Survey refers to many studies that illustrate the correlation between social protection and the reduction of poverty and inequality.¹¹ Investing in human development and insuring against social risks are crucial for generating social progress and economic growth,¹² and economic, political and social stability are all sides of the same coin. The World Bank states, for example, that reducing inequality of opportunity can ‘be conducive to political and societal stability. In more cohesive societies, threats arising from extremism, political turmoil, and institutional fragility are less likely’.¹³ This notion goes back to the very reason for the ILO’s existence, namely that ‘universal and lasting peace can be established only if it is based on social justice’. The Recommendation has been presented as a key instrument in support of the fulfilment of this objective.

From risk-based social security towards comprehensive and integrated social protection

The Recommendation takes a different approach to that of the Social Security Conventions. Convention No. 102, on minimum standards of social security, forms the basis of the current international social security standards, both from the ILO and the Council of Europe.¹⁴ As a product of Western industrial society, this Convention is largely based on the concept of social insurance for prescribed categories of workers in the formal economy, covering specific risks in specific economic sectors. Although it also includes guidance on universal benefits and social assistance and remains a key reference point for the development of social security worldwide, it has appeared to be difficult to apply, especially for developing and emerging countries with large informal economies. On the basis of an extensive review, the Committee concluded, in its 2011 General Survey concerning social security instruments, that the

ILO mandate on social security, as reaffirmed and updated by the Declaration on Social Justice for a Fair Globalisation of 2008, had largely outgrown the standards with which it had to be implemented.¹⁵ The available means are no longer sufficient to meet the new ends. This is particularly evident as regards the objective of extending social security coverage to all, beyond the formal economy to the masses of population living in abject poverty and insecurity, which is at the heart of the ILO’s mandate and mission.

Following on from these conclusions, the Recommendation envisages the implementation of, at least, a basic level of social protection for everyone through a combination of benefits, schemes and measures best suited to the national situation. Contributory and non-contributory schemes, tax measures, labour policies, social services, vocational training, measures to reduce precariousness, etc. together constitute the national social protection floor.

The choice of a recommendation instead of a convention

The choice of a Recommendation was not obvious. A Recommendation is an instrument without binding force − there is little supervision of implementation and there are no sanctions for non-compliance. As the name indicates, it merely contains recommendations that Member states are free to use, fully, partly or not at all. This lack of legal power was the reason that, during the drafting stage, the adoption of a Convention was initially envisaged − it was noted that, for the development of social protection floors, a Recommendation would provide an insufficient legal basis.¹⁶ Nevertheless, this point of view was dropped at a later stage of the decision-making process.¹⁷

The choice in the end for a Recommendation has not been explained properly. Deacon, who has described the history of the making of the Recommendation, at this point only states that ‘[a] Convention was not acceptable so another Recommendation was all that could be achieved’.¹⁸ It is likely that various factors played a role, such as the lack of political will to accept another binding instrument on social security and the disappointing ratification rates of existing Social Security Conventions, especially in developing countries but also in European countries.¹⁹ It must be noted in this respect that the financial impact and administrative burdens flowing from the obligation to establish regular reports on the application of a Convention is difficult to overcome for many developing countries, where administrative systems are often very weak and financial resources inadequate.

Although a Convention is more powerful from a legal perspective, a Recommendation may be preferable from a policy perspective. The lack of an international supervisory system and the broad margin of appreciation of national and local authorities make it easier for governments to commit to the gradual establishment of a national social protection floor at their own pace and in their own way, unconstrained by supervisory mechanisms. The almost unanimous adoption of the instrument is illustrative of the broad political support for the idea of social protection floors as such. Furthermore, it appears from the standard-setting history of the ILO that Recommendations can be very influential and have a significant impact on national policies. An exemplar of this are the Philadelphia Recommendations of 1944 that have served as a starting point for a broader concept of social security that eventually played a leading role in the evolution of the idea of social protection floors.²⁰

The General Survey shows that many countries take the Recommendation as a guiding tool for extension measures and have expressed their interest in technical assistance by the Office to help implement such measures in line with the Recommendation.²¹ The fact that these countries are mainly developing and emerging countries may indicate that developed countries are less convinced of the usefulness of the Recommendation in their more advanced welfare states. Whether this point of view is justified will be addressed in section ‘The relevance of the recommendation for EU countries’ below.

The substance of the recommendation

The Recommendation is a relatively compact document, consisting of a Preamble and five parts, together comprising 24 paragraphs. To give an idea of the content of this document, this section provides a brief representation of the main points of each part.

Preamble – reaffirming social security as a human right

In the Preamble, important principles and conclusions on the human right to social security are restated, reflecting, in part, the evolution of this human right from the Declaration of Philadelphia²² towards the present Recommendation. It starts by reaffirming that the right to social security is a human right and an economic and social necessity for development and progress. It also reaffirms the importance of social security in preventing and reducing poverty, in supporting the transition from informal to formal employment, in empowering people to adjust to changes in the economy and the labour market, and in creating sustainable long-term growth and social inclusion.

Reference is made to the specific provisions of the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, which not only include the right to social security,²³ but also the right of everyone to an adequate standard of living for himself [sic] and his family, including adequate food, clothing and housing,²⁴ and the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.²⁵ These references show a broad framework for social protection.

Additionally, the Preamble refers to several ILO documents on the extension of social security and emphasises the relevance of Convention No. 102 on Minimum Standards of Social Security for the development of comprehensive national social security systems.

Part I. Objectives, scope and principles – setting principles rather than norms

The main objective of the Recommendation is to provide guidance to Member States²⁶ in:

establishing and maintaining social protection floors for everyone as a fundamental element of their national social security systems, and

implementing social protection floors within strategies for the extension of social security that progressively ensure higher levels of social security to as many people as possible, guided by ILO social security standards.

This dual objective envisages a two-dimensional strategy. First, Member States should develop a basic level of social protection for everyone: the floor – this is the horizontal dimension. Second, the vertical dimension aims at the provision of a wider range of benefits covering additional social risks and increases in benefit rates.²⁷ The two dimensions should not necessarily be taken up in this order. Many countries already have advanced social security schemes in place for specific categories of persons. In these cases, the existing schemes should be supplemented with measures that additionally protect persons who are not covered. Countries where social protection is still at a preliminary stage may choose to start with the development of a basic floor for all. It has been emphasised that the Recommendation is a dynamic standard and that the extension of social protection can proceed along these two axes simultaneously in accordance with national circumstances and priorities.²⁸

Nevertheless, the text of the Recommendation mainly deals with the first objective, i.e. the creation of inclusive national social protection floors. This is clear, since the Social Security Conventions already provide detailed guidance on the vertical dimension through their concrete norms, their systems of minimum and higher standards, and their supervisory mechanisms. The inclusion of the vertical dimension in the Recommendation is rather to prevent countries from settling for the establishment of a basic level of protection and considering the floor as an end point.

Paragraph 2 explains that social protection floors should be understood as ‘nationally defined sets of basic social security guarantees which secure protection aimed at preventing or alleviating poverty, vulnerability and social exclusion’. The term ‘guarantee’ reflects a focus on outcomes and not on methods or techniques as is the case in Convention No. 102 and other Social Security Conventions. The Recommendation does not contain concrete norms, nor does it prescribe specific schemes that should be put in place. On the contrary, a broad range of benefits and schemes or policies may be used to give substance to the basic social security guarantees, and countries are encouraged to ‘consider different approaches’ and ‘find the most effective and efficient combination of benefits and schemes in the national context’.²⁹

Paragraph 3 may be seen as the core provision of the Recommendation. It contains nineteen principles that should be applied while setting up, maintaining and supervising the social protection floor. The list of principles copies the general principles set out in the Social Security Conventions, supplemented by many other principles and values put forward by the various stakeholders during the drafting process of the Recommendation – the ILO Office, governments, employers, and employees – with their different backgrounds, expertise, and interests. The need for consensus has made the list lengthy and sometimes overlapping,³⁰ and the meaning and relevance of each principle in the context of social protection floors is not systematically explained.

Still, the formulation of overarching principles for social protection is extremely useful. In the absence of concrete norms and prescribed methods, this set of principles forms the measurement gauge for the implementation of the floors, serving both as a policy tool and an assessment framework for the creation, maintenance and supervision of the national social protection floors.³¹

To make the list of principles more practicable as a policy tool, it can be summarised by clustering closely related principles,³² leading to the following ‘shortlist’:

– state responsibility

– universality of protection

– entitlements based on law

– adequacy and predictability of benefits

– non-discrimination

– financial solidarity

– good governance

– coherence of policies

– social participation

Part II. National social protection floors – a focus on outcomes rather than methods

In the second part, the concept of national social protection floors is specified in more detail. A floor should comprise four basic social security guarantees³³ as follows:

access to a nationally defined set of goods and services, constituting essential health care, including maternity care, that meets the criteria of availability, accessibility, acceptability and quality;

basic income security for children, at least at a nationally defined minimum level, providing access to nutrition, education, care and any other necessary goods and services;

basic income security, at least at a nationally defined minimum level, for persons in active age who are unable to earn sufficient income, in particular in cases of sickness, unemployment, maternity and disability; and

basic income security, at least at a nationally defined minimum level, for older persons.

These four provisions – the guarantees – reflect the life cycle approach that substantiates one of the elements of the principle of universality, namely that social protection should be available at all stages in life. The Recommendation does not define the terms ‘children’, ‘active age’ or ‘old age’. The notion of social protection over the life cycle is the starting point for the determination of who should be protected by which scheme, rather than age itself. Active persons may include economically active children, as well as economically active persons above the pensionable age, depending on the national context.³⁴ Realisation of the four guarantees prevents protection gaps from occurring between the different phases in life.

The rest of Part II contains guidelines on how these guarantees may be realised; not by prescribing specific methods, techniques or schemes, as does Convention 102, but by specifying outcomes and objectives and providing general guidelines. For example, it says that the provision of health care should not cause hardship and basic income security should allow life in dignity³⁵; the implementation of the different measures should promote productive economic activity and formal employment³⁶; and guarantees should be established by national laws and regulations that should ‘specify the range, qualifying conditions and levels of the benefits’.³⁷ Furthermore, directions are given with a view to regular and transparent review mechanisms, participation of the social partners, and, throughout, effective integration and coordination of the various schemes and measures. In fact, the instructions all follow from and elaborate in a more practical manner on the principles listed in Part I.

Part III. Strategies for the extension of social security – the mantra of an integrated policy approach

Part III elaborates on the implementation process of a national social protection floor through effective social dialogue and social participation.³⁸ The common thread across this Part, and actually across the entire Recommendation, is the emphasis on the coordination of social protection policies, within the entire social security system as well as with other public policies. An overarching plan should be made in which the national priorities are formulated on the basis of identified protection gaps. Appropriate schemes should be developed or extended to cover these gaps, either contributory or non-contributory, or both. Several directions to promote good governance of the schemes are also given, for example, a solid financial plan should be made, including a time frame, and information programmes to raise awareness of extension strategies should be undertaken. These strategies should be applied to persons ‘both in the formal and informal economy’, and should support the growth of formal employment and the reduction of informality.³⁹ Part III also refers to the vertical dimension of extension strategies by recommending countries to consider ratifying or implementing Social Security Conventions and recommendations setting out more advanced standards.

Part IV. Monitoring – a prerequisite to sound administrations and good governance

The last part deals with the monitoring of progress in implementing social protection floors through appropriate, nationally defined mechanisms.⁴⁰ These mechanisms should include the collecting, compiling, analysing and publishing of social security data and indicators on a regular basis, following the guidance provided by the ILO. Furthermore, Member States are encouraged to exchange information, experiences and expertise on social security strategies, policies and practices among themselves and with the ILO.

Social protection or social security – what’s in a name?

The term ‘social protection’ in the title of the Recommendation promises a broad interpretation of what a national floor should contain, going beyond the generally agreed concept of social security that covers traditional risks as defined by the ILO in Convention No. 102. The references in the Preamble of the Recommendation to human rights other than social security rights strengthen the expectations raised by the title.

At the same time, the term ‘social security guarantees’ is a bit confusing as it seems to refer to the traditional concept of social security, focusing on income security and health care for persons facing the risks included in Convention No. 102. However, the specifications in Part II of the four guarantees also reflect a broader approach than that of Convention No. 102. Where the latter includes strict definitions for each social risk and provides exclusively for three cash transfer methods − social insurance, social assistance (means-tested) and universal benefits − according to the Recommendation, ‘basic income security’ may involve all possible kinds of measures as long as they serve the objective. Income security for children, for example, also requires ‘access to nutrition, education, care and any other necessary goods and services (paragraph 5(b))’.⁴¹

The confusing use of the terms ‘social security’ and ‘social protection’ in the Recommendation is not an exception; it exemplifies a longer-standing inconsistency within the ILO. In 2002, for example, the ILO recommended in one of its reports the need to open up the narrow concept of social security:⁴²

However, there has been growing recognition of the need to broaden the concept of social security to take account of the problems faced by developing countries and the realities of the informal economy. With flexible and unstable employment and many more workers in the informal economy, what is needed is a broader concept of ‘social protection’ which covers not only social security but also non-statutory schemes, including various types of new contributory schemes, mutual benefit societies and grass-roots and community schemes for workers in the informal economy.

Here, a clear distinction is made between the two concepts. However, over the years, the ILO has used the terms social security and social protection, without further clarification, more and more interchangeably. For example, the glossary of the World Social Protection Report 2014-2015 weakens the distinction between the two terms:⁴³

The term ‘social protection’ is used in institutions across the world with a wider variety of meanings than ‘social security’. It is often interpreted as having a broader character than social security […]. Thus, in many contexts the two terms, ‘social security’ and ‘social protection’, may be largely interchangeable, and the ILO certainly uses both in discourse with its constituents and in the provision of relevant advice to them.

Indeed, the World Social Protection Report 2017-2019 pretty much wipes out the distinction⁴⁴:

‘Social protection’ is a current term to refer to ‘social security’ and generally both terms are used interchangeably. It must be noted that sometimes the term ‘social protection’ is used with a wider variety of meanings than ‘social security’ […].

The ILO appears to have adopted a pragmatic approach, which may be understandable. There is a grey area, and, in most cases, it is neither relevant nor necessary to be perfectly precise. However, to completely discount the distinction between the two terms goes a bit far. In general, at least among lawyers, social protection is still considered to be a broader concept than social security and a distinct use of the terms can be useful in certain contexts. In any case, the random use of the two terms within the ILO may be confusing, but it does not reflect a dogmatic shift. What stands is that the Recommendation envisages a broad view on social security, which is not limited to specific schemes or methods, in order to achieve protection for all through an outcome-oriented approach.

The relevance of the recommendation for EU countries

The floor in EU welfare states

As discussed above, the adoption of an international standard on social protection floors followed from the recognition that the existing standards did not sufficiently protect large groups of the population, especially those working outside the formal economy, and that they did not effectively address poverty. To make the establishment of a social protection floor feasible for developing and emerging countries, the floor should be at a basic level. Therefore, it is not surprising that interest in the Recommendation is higher among less developed countries than in European advanced welfare states with their well-developed social security systems. Still, even for EU countries there is little reason for complacency at this point − in 2017, 22.4 per cent of the entire population in the EU-28 lived in households at risk of poverty or social exclusion, while 6.6 per cent were severely materially deprived,⁴⁵ and the EU showed an average gender gap in pensions of 35.7 per cent, implying considerable poverty risks among women at pensionable age as well as inequality issues.⁴⁶

EU-wide issues in social protection, contributing to the risk of poverty, stem from a variety of causes, including systematic deficiencies, ageing of the population, changes in the labour market, and ad hoc policies often driven by economic factors.⁴⁷ Concrete examples that constitute or cause inconsistencies with the social protection floors concept as set out in the Recommendation, are:

– Non-coverage of categories of persons, especially specific groups of migrants, long-term unemployed, self-employed, and older persons without (adequate) employment related pensions.

– Population ageing puts health care systems under pressure, resulting in shortages of health care workers, high out-of-pocket expenditure adding to the risk of poverty of sick persons, and a decline in accessible care of sufficient quality.⁴⁸

– Non-standard forms of work, such as temporary work, part-time work, on-demand work, mini or marginal jobs, disguised employment and dependent self-employment, and platform work, often leave the workers not covered or insufficiently covered by existing social security systems.⁴⁹

– Economy measures have resulted in a tightening of eligibility criteria for benefits and a decrease or non-indexation of benefit levels. For example, the anchored child-poverty rate increased in two-thirds of European countries between 2008 and 2014,⁵⁰ and the number of self-employed in the flexible work-force who face an increased risk to vulnerability has grown.⁵¹

The General Survey includes a ‘summary of obstacles and challenges impeding, delaying or complicating the implementation of the Recommendation’.⁵² This table lists implementation issues that are identified as such by governments as well as by employers’ and workers’ organisations. The list includes responses from EU countries, although they are far fewer than those from less developed countries. All the issues together would certainly justify taking the Recommendation seriously as a policy tool in the search for viable and sustainable solutions. In the following sections, some of the implementation problems mentioned in the General Survey are examined and discussed in terms of the relevant provisions in the Recommendation.

Fragmentation in legislation and social policies

A well-working social protection floor requires a broad range of measures all of which comply with the prescribed principles. Usually, measures for health care and basic income security include health insurance, public health programmes, social security schemes for employees and civil servants, employment support, activation policies, social assistance, tax exemptions and/or tax returns, housing subsidies, child benefits, education subsidies, school meals, social support, and other possible schemes and policies. The Recommendation emphasises the importance of a variety of measures, as well as an integrated approach, and close coordination of these different measures in order to avoid protection gaps.

For example, the list of principles includes: ‘(i) consideration of a diversity of methods and approaches, including financing mechanisms and delivery systems’; (l) coherence with social, economic and employment policies, and ‘(m) coherence across institutions responsible for delivery of social protection’. Although these principles may seem self-evident, in practice coordination of policies and integrated approaches appear to be problematic, especially in cases of cross-ministerial policies. Many governments have identified coordination problems, for example, between social security and employment policies, between responsible institutions or departments, or between levels of governance.⁵³

Several issues concerned with the coordination of social security and labour market policies or other policies have been discussed in the General Survey.⁵⁴ One of the problems mentioned – and taken here as an example for all problems that need integrated approaches – relates to the provision of essential health care that meets the criteria of availability, accessibility, acceptability and quality (paragraph 5(a)) for everyone. This provision requires, apart from a well functioning health insurance scheme, the availability of sufficient health care workers. Many countries, however, struggle with huge health-worker shortages. The European Commission has estimated a potential shortfall of around 1 million professional health care workers by 2020, which implies that around 15 per cent of total care will not be covered compared to 2010.⁵⁵

Addressing this problem calls for coordination between several different policy areas. For example, in the General Survey, the Committee of Experts notes that it will require decent employment conditions for skilled health workers.⁵⁶ Social security together with labour market policies should make jobs in the health care sector more attractive, secure, and remunerative. This means that certain non-standard forms of employment with no or only little social protection, such as disguised self-employment, on-demand work, or mini-jobs that are common phenomena in the health care sector, need to be challenged. Increasing the number of health care workers may also require coordination with education policies, tax policies, policies to promote the work-life balance, labour migration policies, etc. The emphasis in the Recommendation on the necessity of integrated approaches for the realisation of a national social protection floor is absolutely relevant in the EU context and could be promoted through the exchange of information and practices, as suggested in the final paragraph of the Recommendation.

The social protection floor and active labour market measures

For the purpose of the General Survey, countries reported the use of different kinds of active labour market policies and employment services within the context of social security,⁵⁷ for example job search assistance, coaching services, vocational training (sometimes compulsory), employability and lifelong learning measures, employment guarantee schemes, unremunerated work programmes in return for benefits, and employment subsidies or tax exemptions for employers. These measures are often linked to specific social security schemes, particularly to unemployment, sickness and disability benefits.

The Committee of Experts, in principle, welcomes active measures, especially when they strengthen the employability of benefit receivers and support their return to employment.⁵⁸ At the same time, the Committee emphasises the principles set out in the Recommendation, in particular the principles of tripartite participation and respect for the rights and dignity of people covered by the social security guarantees.⁵⁹ Furthermore, it notes that an appropriate balance between activation measures and the provision of benefits and services should be safeguarded, and that this balance should be carefully monitored ‘to avoid the erosion of effective social protection by the tightening of entitlement conditions or the strengthening of sanctions’. Referring to the General Survey of 2011, the Committee continues that ‘any coercion to perform labour under the menace of a withdrawal of unemployment benefit in the event of refusal to accept unsuitable work, or to participate in an unsuitable labour market programme, is not admissible’.⁶⁰

It should be clear that, in the case of social assistance or any other form of subsistence benefits, the related obligations of beneficiaries should not jeopardise their entitlement to the benefit or to respect for their dignity. In several EU countries, this point needs special consideration, since benefits are very often no longer considered a right as such, but have been made conditional on far reaching duties that may not be justified.⁶¹ Participation of representative organisations in the creation of activation policies may help to safeguard the interests of the beneficiaries.

Out-of-pocket-payments in health care and the risk of poverty

Access to health care is one of the pillars of a social protection floor. The Recommendation sets out that ‘persons in need of health care should not face hardship and an increased risk of poverty due to the financial consequences of accessing health care’.⁶² To achieve universal and equitable access, services should be affordable for all, and particularly for the poor and vulnerable. Since, in many European countries, out-of-pocket payments constitute a substantial part of health care funding, this element of the floor may not always be sufficiently safeguarded. In 2018, across EU countries, around a fifth of all health spending was borne directly by private households, ranging from around 10 per cent in France, Luxembourg and the Netherlands to over 40 per cent in Bulgaria, Latvia and Cyprus.⁶³ According to a WHO study in 2017, the out-of-pocket share of total spending on health increased between 2014 and 2017 in the European region, with households in the poorest quintile hit hardest.⁶⁴

Specific measures are needed to guarantee access to health care for everyone in the long run. The Committee of Experts, in its 2018 report on the European Code of Social Security and the Social Charter, emphasised that accessibility presupposes affordability in health care, which in turn implies minimising out-of-pocket payments and subsidising care for the vulnerable.⁶⁵ The affordability of health care also requires income replacement during periods of illness since, without sufficient income, workers may be forced to decide between jeopardising their health and losing their job. The Recommendation urges policy makers to ensure universal access to essential health care through a variety of measures that are in line with the given principles.

Leaving no one behind – what about irregular migrants?

The Recommendation proclaims a social protection floor for everyone. The explicit references to various human rights, several principles, and many other provisions, confirms and emphasises the concepts of universality and inclusion. Or, as the Committee of Experts has repeatedly stressed in the General Survey, ‘no one should be left behind’.⁶⁶ Although this may seem evident in principle, in the text of the Recommendation, universality appears to have its limitations.

Paragraph 6 states that ‘[s]ubject to their existing international obligations, Members should provide the basic social security guarantees […] to at least all residents and children, as defined in national laws and regulations’. This is a problematic provision as it limits the personal scope of the social protection floor to children and adults legally residing in the country.⁶⁷ The wording of this paragraph was the subject of intense debate and several amendments during the 2012 ILO Conference.⁶⁸ The workers’ representatives, referring to the Universal Declaration of Human Rights, wished that the guarantees should apply ‘as a priority step towards the realisation of the right of everyone to social security’ instead of the current formulation.⁶⁹ However, their amendment was not accepted and the original wording of the Office was adopted. The final provision not only contradicts the idea of social protection for everyone but is also not very clear in its actual meaning.

At a later stage, it was explained that it ‘should be interpreted to read that the floor would indeed be available to all children subject only to national laws about the age at which persons are regarded as children’.⁷⁰ Thus, basic income security must be secured for any person considered as a child by national laws, whether or not legally residing in the country. It also implies that all other persons illegally residing in a country fall outside the scope of a social protection floor. This is difficult to reconcile with the human rights approach of the Recommendation, especially since, in many developing and emerging countries, irregular migrants make up an important part of the workforce. Moreover, it may give rich countries with well-developed social security systems, a justification for withholding any form of social protection to persons without a residence permit, including, for example, rejected asylum seekers who are, due to various reasons, unable to return to their home countries.⁷¹

At the same time, paragraph 6 reminds Member States of their international obligations, which include the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides that ‘[n]on-nationals should be able to access non-contributory schemes for income support, affordable access to health care and family support. Any restrictions, including a qualification period, must be proportionate and reasonable. All persons, irrespective of their nationality, residency or immigration status, are entitled to primary and emergency medical care’.⁷² Furthermore, obligations under the European Social Charter (ESC) include the provision of basic shelter facilities for adult irregular migrants.⁷³ It should finally be kept in mind that the Recommendation sets out the minimum floor – the basic social security guarantees should be provided to at least all residents and children. From high-income countries more than the absolute minimum is to be expected.

Social participation: from tripartism to the involvement of civil society

The Recommendation addresses social participation through two different principles: (a) full respect for collective bargaining and freedom of association for all workers; and (b) tripartite participation with representative organisations of employers and workers, as well as consultation with other relevant and representative organisations of persons concerned. Furthermore, it points out that participation and consultation should take place in regard to: (1) the establishment and review of the levels of the different benefits; (2) the formulation and implementation of social security extension strategies; (3) promoting awareness of social protection floor strategies; and (4) monitoring progress.⁷⁴

In general, employees are (or can be) represented by trade unions. However, other categories of persons are also subject to social protection measures and need representative organisations to protect their specific interests. Therefore, the Recommendation expands the traditional ILO concept of tripartism, which, in contrast to the Social Security Conventions, promotes the involvement of organisations other than trade unions and employers’ organisations, representing, for example, migrants, women, self-employed, and disabled persons. Governments should safeguard and facilitate the formal recognition of the various organisations as social partners in the full spectrum of social protection policies. At the same time, the Recommendation is a bit half-hearted at this point, limiting the involvement of these other organisations to ‘consultation’, while, in regard to employers’ and workers’ representatives, the word ‘participation’ is used. Consultation seems to indicate that ‘other organisations’ should have the right to voice their opinions rather than to actually participate in policy- and decision-making.

This means that a minor role is still reserved for representatives of the majority of those for whom the concept of a social protection floor has been invented, i.e. those who are not (sufficiently) covered by employment related social security schemes. During the discussion of the draft at the ILO Conference in 2012, it was proposed by Brazil and South Africa that the references to ‘consultation’ should be changed into ‘involvement’. However, the established trade unions, supported by the employers, voted against the amendment.⁷⁵ This was not the first time that an alliance between workers and employers acted out of self-interest to block the possibility of NGO’s having greater influence in ILO matters.⁷⁶ This way of protecting their own power in the ILO decision-making process is certainly not beneficial to the development of social protection floors and goes against the spirit of the times.

Concluding remarks

Although the Social Protection Floors Recommendation may have been created, first and foremost, to fill the gap in social security standard setting for low- and middle-income countries with large informal economies, it is also a useful and informative instrument for high income countries. Even the most developed welfare states in the European Union have deficits in their social protection floors, retaining the (risk of) poverty among more vulnerable groups in the population. The Recommendation calls on governments to pro-actively address problems such as high levels of income inequality, increased risks of poverty among people at pensionable age and people in need of (health) care, long-term unemployment, inter-generational transmission of poverty, and child poverty. The given set of principles – including social inclusion, financial solidarity and good governance – supported by more concrete guidelines, can serve as guidance for policy makers in developing sustainable solutions. The Recommendation promotes investment in closing existing social protection gaps with a view to creating safer, more inclusive and more cohesive societies.

One of the main lessons that can be drawn from the Recommendation is the relevance of an integrated approach to social protection that promotes the coordination of different policy areas, including social insurance, health care, social assistance, social support and care, labour market policies, tax policies, labour migration policies, and education policies, in creating a solid floor of at least basic social protection for every person living in the country. This is a challenging lesson since it requires long-term inter-ministerial collaboration exceeding government terms and involves different levels of governance. International exchange of good practices could help in developing ideas in this respect. Thus, in Africa, for example, the African Platform for Social Protection promotes National Platforms in the shaping of social protection policies, consisting of both governmental and civil society organisations.⁷⁷ In the European context, existing structures and networks for social dialogue and consultation could be extended and used to develop more comprehensive and integrated approaches to social protection. Interdisciplinary research on solutions that work best would help to realise such policies.

As regards institutional cooperation, the ILO itself, as one of the UN agencies, has some way to go as well. The Recommendation deals with several policy areas that also come under the mandate of other international organisations, including the World Bank and the IMF. The relationship between the ILO and, particularly, these financial institutions is not very cooperative or fruitful because of disagreements about financing methods and the design of social protection. The latter focus on economic growth and alleviating extreme poverty through the provision of safety nets for the very poor, often on an ad hoc and short-term basis, while a social protection floor, in the view of the ILO, should lift people out of poverty and facilitate rights-based social protection over the life cycle. Although safety nets and floors may have a similar connotation, the two concepts differ in function; as nicely pin-pointed in terms of images: ‘nets have holes, floors do not’.⁷⁸ In the General Survey, the Committee of Experts explicitly addresses the diverging policy recommendations by the different institutions, remarking, for example, that⁷⁹:

This requires greater coherence in the discourse and action of international actors with a mandate to implement policies that can influence the action taken to combat poverty, inequality and social exclusion, especially in the context of the austerity measures proposed by international financial institutions.

To achieve better cooperation and pursue mutual goals, individual ILO Member states will have to use their votes and influence within the different institutions to promote policy coherence in favour of sustainable development based on solidarity and human dignity.

Footnotes

Declaration of conflicting interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

Notes

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