Decree No. 53/05 of August 15 - Legal Framework of Work Accidents and Occupational Diseases

Transcription

1 Decree No. 53/05 of August 15 - Legal Framework of Work Accidents and Occupational Diseases Page 1/38

2 Becoming necessary the creation of conditions that allow to preserve the health, physical integrity, reduce or eliminate the potential risks of work accidents and occupational diseases and assume the repair of damage which include the development of work activity; Being necessary to regulate the objective conditions which establish a framework for social protection of workers and their families against occupational hazards, in observance of the principles enshrined in Convention No. 102 of the OIT, International Labor Organization; Under the provisions in Article 59 of Law no. 7 / 04, and October 15 under the combined provisions of paragraph d) of Article 110 and Article 113 both of the Constitutional Law, the Government decrees the following: LEGAL FRAMEWORK OF WORK ACCIDENTS AND OCCUPATIONAL DISEASES CHAPTER I General Provisions ARTICLE 1. (Persons covered) 1. It is guaranteed the right to compensation for damage resulting from work accidents and occupational diseases to workers on behalf of others and their families, protected by the system of compulsory social protection. 2. For purposes of this law, shall be considered employees on behalf of others employees working under contract or similar. 3. Are also entitled to that repair: Angolan workers who are temporarily abroad in the service of the State, of Angolan companies or institutions, unless the laws of the country where they are guarantees them the same or better rights, in accordance with established conventions; b) the foreign workers that work in the Republic of Angola, without prejudice to special regimes provided in the law and in applicable international conventions. Page 2/38

3 4. The self-employed workers are protected as provided in specific regulation. 5. Notwithstanding the preceding paragraph, the self-employed can voluntarily carry out an insurance policy that guarantees cash benefits provided for in this decree. ARTICLE 2. (Exceptions) Are excluded from the previous article: a) employees and agents of public administration; b) non-resident foreign workers who, by virtue of that link, are entitled to compensation for damage resulting from work accidents and occupational diseases recognized by the country of origin, or organization for which they serve, so it must prove, by delivering a copy of the policies of the competent services of the Ministry in charge of compulsory social protection. CHAPTER II Work Accidents ARTICLE 3. (Concept) 1. Accident at work is the sudden event that occurs through the exercise of work activity for the company and the worker is injured with lesions and personal injury resulting in partial or total, temporary or disability, permanent for work or death; 2. Are also considered work accidents those that occur in the following circumstances: a) during the normal or usual road going or leaving the workplace, whichever is the mean of transportation used in the course. b) during the breaks, occurred in the workplace; c) in acts of defense of the human life and social property in the company or institutions' facilities. d) during social, cultural and sportive activities organized by the company. 3. It is considered normal track the way the employee necessarily has to use between his residence and the workplace and vice versa, within the schedule stated. Page 3/38

4 ARTICLE 4. (Depersonalization of the event) For purposes of this law are not considered disabilities resulting from: a) intentionally caused accidents and accidents resulting from the practice of intentional crime; b) accidents resulting from acts of war, declared or not, robbery or political or social upheavals, strikes, insurrection, civil war and acts of terrorism; c) deprivation caused by accidents or accidental use of reason of the employee, considered as such under the civil law, unless the deprivation is directly derived from work or business; d) the period set out in paragraph 3 of the preceding article; e) accidents which come without justifying cause of the violation of the rules and conditions of safety established by the employer or by law. ARTICLE 5. (Exclusions) 1. Are excluded from this law's application scope: a) accidents occurring in the provision of any services or occasional, short-lived, unless they are provided, in activities which concern the exploitation for profit; b) accidents occurring in the execution of jobs of short duration, if the entity to whom the service is offered usually works alone or with family members and call for help, accidentally, one or more workers. 2. The exclusion provided in paragraph b) of the previous number does not include accidents that result from the use of machines and other equipment with special danger. CHAPTER III Occupational Diseases ARTICLE 6. (Event characterization) Page 4/38

5 1. In accordance with this law, are considered occupational diseases the ones that integrate the encoded index of occupational diseases, annex to this decree, which forms part thereof. 2. Are considered occupational diseases for the purposes of this law the alteration of the defined pathologically health, caused by the professional activity on the workers who work, on a regular basis, exposed to factors that cause diseases and are present in the work environment or in certain professions or occupations; 3. The index encoded attachment to this decree, as paragraph 1 of this article is based on current scientific knowledge in the fields of pathology, and occupational and the comparative study of lists of occupational diseases in various countries, as well as documentation originating from international bodies such as the International Labor International Organization and the World Health Organization. 4. The index referred to in paragraph 1 of this Article will be updated periodically by executive decree from the Ministers of health and mandatory social protection. CHAPTER IV Mandatory Insurance and Charges ARTICLE 7. (Insurance) 1. Are compulsorily insured against the risks arising from work accidents and occupational diseases, characterized in this law, all workers, apprentices and trainees, after the effectiveness of their contract of employment concluded between an employer and an insurance company of Angola. 2. Upon entry into force of this Decree, employers are required to transfer to the Angolan insurance company liability resulting from occupational accidents and occupational diseases. 3. Employers are obliged to inform the insurer by registered letter with acknowledgment of receipt or any other suitable means, the start date of the workers' activity and the termination of employment within 30 days after the occurrence thereof. Page 5/38

6 4. It is the insurer responsibility to acknowledge receipt of the letter referred to in the preceding paragraph of this article, seven days following its receipt, using for the effect the same evidence. 5. The employers must prove the validity of the insurance contract: a) for the current existing cases, within 90 days, leaving their copies of insurance policies and receipt of payment of insurance premiums to the competent organs of the Ministry that supervise the compulsory social protection; b) for future situations, at the time of the enrollment in social security. 6. The non-compliance, by the employer of the obligations under the insurance contract, does not affect in any way the right of the worker, apprentice, trainee or their families, of the recognition by the employer of the benefits payable under this law. ARTICLE 8. (Charges) 1. The pricing system for calculating insurance benefits, as well as uniform and other conditions required for the operation of the insurance for occupational accidents and occupational diseases, shall be established by joint executive order from the Ministers of Finance and the responsible for the compulsory social protection. 2. Employers provide semi-annually to the insurer a copy of the pay sheet, duly authenticated by the Labor Inspectorate or its services and additional taxable remuneration paid to employees each month. 3. The premiums owed to the insurance company, charges are exclusive of the employer, it being expressly forbidden any discount on fees or provide an added burden to the worker. 4. The insurance company can not pay interchange fees under this compulsory insurance, in accordance with Article 31 Executive Decree No. 7 / 03, January 24, About Mediation and Brokerage of Direct Insurance. 5. The insurance companies must create conditions for providing services, in all national territory, in order to enable the full compliance of this decree. 6. While there is no opening of a delegation, a subsidiary or branch in the headquarters of a province, the insurer must indicate (s) your (s) correspondent (s) location (s) to the provincial of the tutelage of compulsory social protection. Page 6/38

7 7. When all the insurance companies in the country refuse to accept the offer of any insurance company or institution, should the competent organs of the Ministry of protection of compulsory social protection at central, provincial or local, through their statements justify the refusal, to put the requests for insurance in an insurance company, prorated in order and date of request. 8. The insurance company is obliged to submit, every six months, copies of all required documentation, the National Directorate of Social Security, and that, under the tutelage and supervision of the Minister, must create the conditions to exercise control over the implementation of prescribed procedures. 9. The documentation referred to in the preceding paragraph of this article will be defined by joint order of Ministers of Finance and the protection of compulsory social protection. CHAPTER V Relief and Participation of Accidents, Diseases or Death ARTICLE 9. (Relief of the victim) 1. The employer or the person representing the direction or supervision of the work as soon as it becomes aware of an accident or an occupational disease, characterized in accordance with Article 3 and 4 of this law, shall provide first aid to the victim and, where appropriate, must ensure the more convenient immediate transportation for the victim to the nearest hospital. 2. The provision of first aid does not mean acceptance, immediately, by the insurance company or the employer's recognition of the accident as work, disease as professionals. 3. The employer is responsible for the consequent damages for not providing relief to the victims. ARTICLE 10. (Medical examinations) 1. Companies whose activities involve special risks and work where they develop unhealthy or hazardous work set out in Article 27 of Decree No. 31/94 of August 5, can not admit to its Page 7/38

8 service workers without first submitting them to an examination, intended to check whether they are affected by those diseases. 2. The workers will undergo medical examinations according to the place where its activity is exercised, the result should be reported to the insurer within 15 days, under penalty of being considered a cause of exclusion for the purpose of settlement of any claims without this would impose damage to the protection of the worker in regard to dealing with this law. 3. The employers must ensure the organization and functioning of the safety, hygiene and health at work services, as provided in proper legislation. ARTICLE 11. (Accident participation) 1. An accident occurred, the victim or the legal beneficiaries of family benefits, must participate, verbally or in writing, within 72 hours, to the employer or the person who represents the direction of services, if any, unless they come to witness it or to its knowledge during this period understood. 2. If the status of the victim or other circumstances duly proven, do not allow compliance with the preceding paragraph, the deadline date will be from the removal of the obstacle. 3. The colleagues who witnessed the accident, must report it immediately to the direction of services, or his legal representative and the insurance company. 4. The employer must participate to the insurance company within the period specified in the insurance policy and the provincial department of protection of compulsory social protection all accidents occurring within seven days, using the standard model of appropriate form attached to this law. 5. The employer is responsible for the delayed consequences of participation of the accident, the insurer has the right to return of sums he has paid wrongfully. 6. The period referred to in paragraph 1 of this article is 24 hours if the accident is fatal and seven days in other cases. 7. Workers victims of work accidents or occupational diseases not covered by insurance mentioned in this law or their family members must report the accident or occupational disease to the Labor Inspectorate, within eight days from the date the event or your knowledge. Page 8/38

9 ARTICLE 12. (Participation of the accident for the seaman) 1. As the injured seaman, the report should be made the captain of the national port where the accident occurred. 2. If the accident happened aboard the Angolan ship, on high seas or abroad, participation is made to the captain of the national port where he first arrived. 3. If it's a fatal accident, it should be immediately report to the entities referred to in the preceding paragraphs, using the fastest means of communication. ARTICLE 13. (Participations to be done by the insurance companies) 1. Insurance companies must participate to the court in writing within eight days from the date of the title of high, accidents that have resulted from permanent disability. 2. The accidents that resulted in death should be reported immediately by the quickest means of communication, which has the purpose of registration. 3. The procedure in the previous article shall not exempt the participation in writing within eight days from the date of death. 4. Insurance companies should also participate to the court in writing within eight days, all cases of temporary incapacity exceeding 12 months. ARTICLE 14. (Map of participations of work accidents) 1. Employers and insurers must submit to the court every six months, four copies of a map, a model of which is attached to this law, which contains the accidents of their responsibility, Page 9/38

10 participated in the previous semester, and they are returned with a copy receipt from the receptionist. 2. A copy of the same map is sent by the court until January 30 following the year to which it relates to the provincial directorate responsible for compulsory social protection. ARTICLE 15. (Participation of occupational diseases) 1. The medical and paramedical personnel of health services, should participate to the administration, all clinical cases in which it is to assume the existence of occupational diseases. 2. The delivery of participations is made to the insurance company and the relevant provincial department responsible for the compulsory social protection. 3. The insurer, in the face of the participations referred to it, must report detected cases of occupational diseases, to the following entities: a) Provincial Health Directorates; b) Provincial Directorates responsible for compulsory social protection; c) to the company or institution, its insured, regarding its employees. 4. The participations of the entities referred to in the preceding paragraph, are made according to the workplace where presumably it originated or aggravated the disease, as well as the specification regarding the presence of noxious agents, its concentration and the contact with the worker with these agents, together with the medical examinations he underwent throughout his employment. ARTICLE 16. (Death participation) 1. The administration of health services or who represent them should participate the death of the injured or ill, that there has been hospitalized or received emergency following a work accident or occupational disease, the insurer, and the competent services of the Ministry that supervises the compulsory social protection, within 48 hours, using for this purpose the standard form, appropriate, attached to this law. 2. Has equal obligation any other person or entity that has taken care of the injured or ill. Page 10/38

11 3. It's also mandatory the death participation of the injured or ill to the competent court by the insurance company. 4. The court referred to in the preceding paragraph is the jurisdiction in which death occurred. Page 11/38

12 CHAPTER VI Classification and Definition of Disabilities ARTICLE 17. (Classification of disabilities) Disabilities to work, according to the result of work accident or occupational disease, are classified as follows: a) total permanent disability for any activity; b) permanent total incapacity for usual work; c) permanent partial disability; d) temporary incapacity. ARTICLE 18. (Definition of level of disability) 1. Total permanent disability for any activity is one in which the worker loses completely and definitely the ability to engage in any work activity. 2. Total permanent disability for the usual work is one in which the worker loses completely and definitely the ability to exercise their profession, and may develop other activity after a process of recovery, rehabilitation and retraining. 3. Partial permanent disability is that in which the worker suffers a permanent reduction in capacity for the exercise of their profession, while still able to exercise it in another job. 4. Temporary disability is that in which the employee is unable to exercise their professional activity, or any other for a period of time. Page 12/38

13 ARTICLE 19. (Conversion of temporary disability in permanent disability) Verifying the temporary disability for a period exceeding two years equivalent to 730 days, it is considered permanent disability, and the National Commission for Evaluation of Disability must set the degree. CHAPTER VII Evaluation and Amendment of Disabilities ARTICLE 20. (Evaluation of work disabilities) 1. The evaluation of disability resulting from occupational accidents or occupational diseases, is expressed in coefficients, determined by the nature and severity of injury, the victim's general condition, age, profession, more or less effective rehabilitation for the same profession as well as of other circumstances that may contribute to the ability to work and gain. 2. The coefficients of disability are set in accordance with the National Table of Disabilities (TNI) on the date of the impediment. 3. The National Commission for Labor Disabilities Evaluation is required to complete a detailed report, stating the nature and degree of disability, in four copies, one for the original insurer, a way for the injured, a third way to the competent organs tutelage of the Ministry of compulsory social protection and another for the employer. 4. Whenever an accident at work or an occupational disease injuries result in more than one limb or organ, the degree of disability assigned is obtained by adding the depreciation rates on each of the lesions, without, however, exceeding the limit 100%. 5. In relation to a member or organ, the accumulated depreciation can not exceed that which would correspond to a total loss of limb or organ. 6. In the final establishment of the degree of disability due will meet the special conditions of each case, that devaluation can influence the global, particularly when dealing with injuries that affect the same limb or organ, or in the case of repeated accidents, when should take into account the devaluation. Page 13/38

14 7. The report referred to in paragraph 3 of this article follows the model to be adopted by joint decision of the ministers of compulsory social protection and Health. ARTICLE 21. (National Commission of Labor Disabilities Evaluation) 1. The determination of capacities is made by a committee, whose composition, powers and operation are set in legislation, called the National Commission of Labor Disabilities Evaluation. 2. The commission referred to in previous paragraph, except provided otherwise, has the following constitution: a) a representative of the Ministry of Health, who will preside; b) a representative of the Ministry of protection of compulsory social protection; c) a representative of the insurer in cases of evaluation of their victims; d) a representative of trade unions; e) a representative of the employers; f) a representative of the Medical Association when invited. ARTICLE 22. (Scheme of the benefits payment) The right to amendment for work injuries and illnesses includes the procedures for cash and in kind. ARTICLE 23. (Cash benefits) 1. Are considered cash benefits, depending on whether the work-related accidents or diseases, the following: a) compensation or benefit for temporary incapacity for work; b) the provisional pension; c) compensation and pensions for permanent disability; d) death grants and funeral expenses; Page 14/38

15 e) survivors' pensions to the families of the injured; f) allowance for attending training courses; g) pensions redeemed, decided by the court when the percentage of disability is minimal, in accordance with Article 44 of this Decree. 2. Redeemed pensions and subsidies for death and funeral expenses are unique allocation of benefits, with the remaining continuous or periodic allocation. ARTICLE 24. (Kind benefits) 1. Are considered kind benefits: a) medical and surgical, general or specialized, including all elements of diagnosis and treatment as needed, as well as home visits; b) drug and pharmaceutical assistance; c) nursing care, whether at home or in hospital or other medical institution; d) hospitalization and spa treatments; e) the provision of prosthetics and orthotics, as well as renewal and repair; f) recovery services and vocational rehabilitation and functional. 2. The hospital and the treatments provided for in paragraphs c) and d) above of this Article shall be made in suitable institutions for the restoration and rehabilitation of the injured or ill, as well as transportation and the stay must comply with the conditions imposed by the commodity nature of the disease or injury. 3. They are also benefits in kind reimbursement of travel expenses, food and accommodation is essential for implementing the benefits of paragraph 1 of this article. Page 15/38

16 ARTICLE 25. (Holders of the right to benefits) 1. The right to benefits for occupational disease is recognized to beneficiaries that are suffering from occupational disease and work accident to workers whose injuries arise from the situations specified in Articles 3 and 4 of this Decree. 2. The right is also recognized for death benefits for the recipient who holds an occupational disease, or the victim of an accident at work, to family members or people those treated in the following paragraphs: a) Spouses and unmarried people; b) former spouses or spouses legally separated at the time of death and with the right foods, it being understood by all that food is essential to livelihood, housing and clothing; c) child, yet unborn and the narrowly adopted; d) ancestors or other relatives successors at the time of death of the beneficiary. 3. The right to benefit for death is recognized and treated as family members falling under a) b) c) d) of paragraph 2 of this article. 4. The allowance for funeral expenses may be accorded to persons other than family and similar beneficiaries, or injured, presenting the death certificate and proof of expenses incurred on behalf of the deceased. CHAPTER VII Conditions for Allocation of Benefits and Amounts ARTICLE 26. (Benefits for temporary disability) 1. Benefits for temporary incapacity for work are intended to compensate the victims or beneficiaries during a limited period of time, for the loss of ability to work or gain resulting from occupational disease or work accident. Page 16/38

17 2. The daily amount for total temporary disability benefit is equal to 65% of the reference remuneration or compensation. 3. The daily amount of partial temporary incapacity benefit is 70% of the amount of the reduction experienced in the overall capacity gain 4. In case of hospitalization, the amount of benefit is equal to 100% of the reference remuneration or compensation in the first 30 days and 75% for as long as this situation. ARTICLE 27. (Start of the benefits for temporary disability) The benefit for total temporary disability is due from the first day of disability without work, while the benefit for partial temporary disability is due from the the date of reduction of capacity to work and the correspondent certification. ARTICLE 28. (Duration of the benefits for temporary disability) 1. The benefit for total temporary disability is due from the day of disability without working. 2. The benefit for partial temporary disability is due from the date of reduction of capacity to work and the correspondent certification. 3. The right to benefit for temporary total disability ceases with the clinical cure of the beneficiary or victim, or certification of permanent disability. 4. The compensation or salary for the day when the event occurred is paid by the employer Page 17/38

18 ARTICLE 29. (Benefits for permanent disability) 1. The provisional pension is intended to ensure an early and adequate protection in cases of permanent disability or death, where there is clinical or technical reasons determinants of delay in awarding pensions. 2. The capital of remission and the pension for permanent disability benefits are intended to compensate the patient or the victim for the loss or permanent reduction in their ability to work or gain resulting from industrial accident or occupational disease. 3. The death benefit is destined to compensate the charges subsequent to the death of the sick or injured. 4. The benefit for funeral expenses is intended to offset expenses incurred for the funeral of the sick or injured beneficiary. 5. Pensions for death are benefits intended to compensate the relatives of the sick or injured from loss of income of his death, caused by occupational disease or work accident. 6. The benefit for attending training courses is to provide retraining opportunities for beneficiaries, when the severity of injuries and other special circumstances justify it. ARTICLE 30. (Amount of the provisional pension for permanent disability) The monthly provisional pension for permanent disability is equal to the monthly benefit for temporary total disability that was being assigned or would be assignable, calculated in accordance with Articles 32, 33 and 34 of this Decree, as appropriate. ARTICLE 31. (Start of the provisional pension) Page 18/38

19 1. The pension shall be payable from the day following that on which there was no longer room for temporary incapacity benefit. 2. The amount of provisional pension is payable from the date of application, the reporting requirement or the death of the beneficiary, as appropriate. ARTICLE 32. (Amount of the pension for total permanent disability for any type of work) In the total permanent disability for any work, the amount of monthly pension is equal to 80% of their remuneration or compensation reference plus an allowance equal to the amount of family allowance for each dependent family member, with the limit 100% of that remuneration ARTICLE 31. (Amount of the pension for total permanent disability for usual work) In total permanent disability for the usual work, the pension is fixed at between 50 and 70% of the reference remuneration or compensation, whichever is greater or smaller residual functional capacity to exercise another profession compatible. ARTICLE 34. (Amount of the pension for partial permanent disability) In partial permanent disability, the amount of the pension is equal to 70% of the reduction suffered in the general gain capacity. Page 19/38

20 ARTICLE 35. (Amount of benefits for death) 1. If the occupational disease or work accident result in death, the monthly amount of pension of a spouse, former spouse or in-union is calculated as follows: a) in case of assignment to the spouse or unmarried person, 30% of the reference remuneration or compensation of the sick or injured to make up the retirement age for old age and 40% from that of verification of age or physical or mental illness significantly affecting their ability to work. b) in the case of assignment to the spouse or former spouse legally separated at the time of death and with the right to maintenance, the procedure is established under the preceding paragraph, up to the amount of food set in court. 2. The amount of death pensions to be granted to minor children including the unborn and similar narrowly adopted and the date of death of the beneficiary is 20% of the reference remuneration or compensation if only one, if two 40% and 60% if three or more. 3. The amount of pensions to be granted to any other ancestors and relatives heirs is, for each, 10% of the reference remuneration or compensation may not exceed the 30% of the total pension. 4. The amount of provisional pension on death is equal to the amount resulting from the calculations under paragraphs 1, 2, 3 and 4 of this Article as the case. 5. The benefit for death is equal to six times the reference wage or monthly salary of the beneficiary or victim, can not be less than the national minimum wage reference if any, being assigned as follows: a) half to the spouse or unmarried person and half the children who are entitled to a pension; b) entirely to the spouse or unmarried person, or the children, when they compete separately. 6. If the beneficiary or victim does not let people mentioned in the preceding entitled to benefits, the amount of death benefit reverts to the Pension Fund Update - FUNDAP, which shall be deemed for all purposes, as a technical reserve. 7. The allowance for funeral expenses is equal to the amount of those costs, not exceeding the equivalent of two salaries that the employee would be entitled, it can, however, be increased to twice, in case of translocation of the deceased. Page 20/38