Читать книгу El Régimen Jurídico de las Mutuas Colaboradoras con la Seguridad Social - Carlos Teruel Fernández - Страница 5

This work has been developed in two different languages, Spanish and English, and is the result of exhaustive research carried out both at the University of Murcia (Spain) and at the Università degli studi dell’Insubria (Italy). Thanks to the unconditional support received from my tutors, from both universities, and the resources of these universities; as well as the scholarship granted to me by the Mare Nostrum Campus of International Excellence, which allowed me to carry out an international stay in the city of Como (Italy), it has been possible to accomplish this research,. Although part of the research has been developed in Italy, English has been chosen as the second language of this research work because it is currently the most widely used intercultural language in Europe and throughout the world. Developing my research in this language will make it easier to use in future investigation related to the subject analysed, both by Spanish and foreign authors.

Under its title, “The legal regime of Mutual Companies that collaborate with Social Security”, a detailed analysis is performed on the private associations of employers in charge of managing health and economic benefits in favour of their protected workers when they suffer an occupational accident or illness, without prejudice to other series of competences that have been acquired over time. These are entities collaborating with the Spanish Social Security, so they are closely related to the public sector, depending on and being controlled directly by the Ministry of Inclusion, Social Security and Migration.

There is no doubt about the unique nature of these entities, with no similar organisations to be found in the rest of the countries of the European Union. This is because with the entry into force of the Work Accident Law of 1900, these “insurance companies” were granted the pertinent powers to insure the professional contingencies of the workers. Thus, the first Mutual Companies were born and they gained experience to the point where, when Social Security was established in Spain in 1967, public authorities decided to maintain them so that they could continue carrying out this work, although they began to be considered as entities dependent on the public sector. Mutual Companies evolved and grew in number until, from 1990 onwards, the requirements for their incorporation were tightened and their territorial limitations were abolished, events that caused their accelerated decrease through, above all, merger and acquisition procedures.

Although throughout history Mutual Companies have been characterised as entities specialised in professional contingencies, even holding preventive powers in this regard as of 1996, with the approval of the Mutual Regulation, they began to manage the benefits of temporary disability derived from common contingencies without evaluating the pathological situation of the workers affected by this type – that is, they became “paying entities” for this form of benefits. Over time, the public authorities have continued to denature the Mutual Companies, granting them more administrative functions of payment for different types of benefits, such as the benefit for the cessation of activity of self-employed workers or the benefit for taking care of minors affected by cancer or other serious illnesses.

The entry into force of Law 35/2014 or the “Mutual Companies Law” was an important turning point, as it greatly modified the legal regime of Mutual Companies, granting them more powers, which meant that controls on them were also increased. However, they were prohibited from continuing to act as prevention services for companies, a power which was previously granted to them by the 1995 Prevention of Occupational Risks Act. Said power caused much controversy since, as it was financed with public resources. The Mutual Companies therefore had a clear advantage in competing in the market against other private companies providing the same prevention service.

Despite the importance of Law 35/2014, which was found to be insufficient, as numerous provisions were conditioned on the approval of a Mutual Regulation that, as mentioned in the Law itself, would be created within a period of six months after its entry into force. However, five years later, the Regulation has still not been adopted. This has created a situation of legal uncertainty since, despite these references, the old regulations (in many respects out of date) must still be used. Law 35/2014 was incorporated into the content of the repealed General Law on Social Security functions proper to a Regulation, raising certain organic and functional provisions of Mutual Companies to legal status, instead of maintaining only those of a basic and structural nature. Thus, the legislator makes the process of modifying the legal regime of Mutual Companies more difficult, as it is always more complicated to modify a law than a regulation.

Following a detailed examination of the historical development of Mutual Companies, this study examines their current legal regime point by point, emphasising, due to their importance, the changes made by Law 35/2014, and offering a comparative view of previous regulations and a vision of the future, since it also analyses the most important changes that the Draft Regulation for Mutual Companies in 2018 intends to introduce. It should be noted that this Draft could not be approved today, as subsequent legislation (such as Royal Decree-Law 28/2018) has partially conditioned its content.

There are many controversial points that can be seen in the current legislation on Mutual Companies. These include regulatory inaccuracies, legal loopholes, reservations that may be aimed at mitigating certain responsibilities, excessive salaries in favour of Managing Directors and high indemnities in favour of executive staff. Moreover, the possibility that associated companies may reverse some of their incentives for acting correctly against occupational accidents (“bonus malus”) in favour of the historical heritage of the Mutual Companies, situations that generate conflicts between workers, and Mutual Companies and Social Security management bodies that often end up in the Labour Court, etc.

There is a huge problem with regards to the sustainability of Mutual Companies, as they are all in a deficit situation due to the progressive economic losses they suffer as a result of the management of temporary disability benefits resulting from common contingencies. Far from correcting this situation, the public authorities are letting them suffocate, not increasing expenditure for the management of such contingencies, nor allowing them the power to grant sick leaves and discharges for such contingencies. This is something that could be very beneficial for reducing absenteeism from work, since it is no secret that the public health services are very permissive when it comes to granting and confirming sick leave.

It is true that on the one hand, Mutual Companies manage to save economic resources from Social Security thanks to their relentless fight against absenteeism through constant and exhaustive controls on their protected workers when they suffer a professional contingency, but, on the other hand, it is also true that they represent a very high cost to the public treasury. It should be noted that, to date, there are 19 mutual companies, each with its own Managing Director, executive staff and respective government bodies. Their members receive indemnities and allowances for attending meetings, without prejudice to the high costs involved in monitoring them, with private companies even having to be hired due to the lack of control resources of the General Intervention of the Social Security.

All of this leads to the search for a real and effective solution that will succeed in calming the shortcomings of the current regulation and economising on public resources for Social Security, especially at a time like the present, when the lack of resources is evident and effective management is absolutely necessary.

One solution to partially mitigating the negative effects in the short term would be to take advantage of the drafting of the new Mutual Companies Regulations to simplify and download the content of the Consolidated Text of the General Law on Social Security, leaving only the basic content of Mutual Companies and then developing it into the Regulations. These new regulations should avoid regulatory duplication, inaccuracies, legal loopholes and references to future provisions. The regulations could correct many of the problems that currently exist, but not all of them, as some of these problems are intrinsic to the very existence of Mutual Companies.

However, this research aims to go further and examine how the disadvantages generated by Mutual Companies could be solved in the most effective way and make the most of public Social Security resources. To this end, research has been performed into the possibility of establishing a single specialised state body in Spain, as is the case in Italy with INAIL.

With the aim of developing this possibility, a detailed analysis has been carried out on Italian INAIL, a public body specialising in professional contingencies with its own legal personality and capacity to act, performing in Italy the functions which are performed by the Mutual Companies in Spain. It seems appropriate to look at this body in view of its long experience with such contingencies, as it began managing them in 1883, 18 years before the first Mutual Company was set up in Spain.

The benefits of establishing a specialised public body of this type in Spain, creating a single law regulating it, have been proven, as this would not only unify and simplify the management of economic and welfare benefits, creating legal certainty, but would also nullify the high costs generated by the maintenance and control of Mutual Companies.

It is clear that this is a medium or long-term solution, as setting up such a body would affect various state institutions and a multitude of existing legal provisions. Therefore, a transition period would have to be opened in which negotiations would begin with the social agents, but, above all, with the Mutual Companies themselves. This is due to the fact that they cannot remain outside the single body, since they have been the main protagonists in the protection of professional contingencies in our country for more than a century. The specialised organisation should take advantage of this experience, as well as the material and personal resources of the Mutual Companies. Furthermore, they should make use of their historical heritage as assets directly affected by their social purposes. The formulas for integrating the staff of Mutual Companies into the single body may be diverse, ranging from the functionalization of permanent workers to their conversion into permanent labour staff.

Another problem that has been observed is of a judicial nature, since there is a high level of litigiousness between the Mutual Companies with their protected workers, the managing entities of the Social Security and even between the Mutual Companies themselves to verify which is responsible for paying the corresponding economic benefits. This situation of high litigation not only entails a significant cost for the various state administrations, but also causes many procedures to be lengthy, sometimes reaching solutions years after the benefit has been granted or denied. For this reason, regardless of the solutions offered (creating a single body would avoid conflicts between the mutual companies and with the managing bodies), and given the urgent need for workers to receive their benefits, it would be advisable to establish Labour Courts specialised in Social Security benefits that would process the judicial procedures on this matter in a fast, efficient and specialised manner. There is no doubt about the benefits that this would bring to workers and even to the judges, who sometimes find themselves having to act as real doctors to resolve disputes.

1. Debido a que la presente Tesis doctoral opta a la mención de “Doctorado Internacional”, este sumario y las conclusiones se redactarán en inglés (art. 15.1 del Real Decreto 99/2011, de 28 de enero, por el que se regulan las enseñanzas oficiales de doctorado).