Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Cabo Verde (RATIFICATION: 1999)

CMNT_TITLE

Previous comment

The Committee notes the observations of the National Workers’ Union of Cape Verde – Trade Union Confederation (UNTC-CS), sent with the Government’s report. The Committee notes the indications of the UNTC-CS that, although national laws are in conformity with the Convention, their practical application reveals considerable gaps, such as bureaucratic barriers that hamper the process of establishing trade unions, and non-compliance with legal deadlines and procedures for granting legal personality to trade unions. The Committee requests the Government to provide its comments in this regard.

Article 3. Minimum service in the event of a strike. Recourse to civil requisitioning. In its previous comments, the Committee noted the planned establishment, under the 2016 legislative reform, of the independent tripartite committee to determine minimum services in the event of a strike and trusted that this body would be able to discharge its functions fully, in order to allow a considered exchange of views on what minimum services should be in practice. As the independent tripartite committee was not yet operational, the Committee requested the Government to provide detailed information on the manner in which minimum services are determined in the event of a strike in essential services. The Committee also requested the Government to specify whether recourse to civil requisitioning is limited to ensuring the implementation of minimum services determined by the parties or by the tripartite committee, indicating the applicable legislative and regulatory provisions. It also requested the Government to provide detailed information on: (i) the manner in which civil requisitioning functions in practice, including in the absence of an agreement between the parties and in the absence of the functioning of the tripartite committee; and (ii) the frequency with which the public authorities have had recourse to civil requisitioning in recent years, with an indication of the requisition orders published, the services concerned and the percentage of workers requisitioned by service. The Committee notes the Government’s indication that, in the event of a strike in essential services, the employer and trade union negotiate to determine the minimum services required. If the employers and trade unions are unable to reach an agreement, it is for the Government to determine the scope of the minimum services. A proposed list of workers is sent to the relevant ministry, which determines the number required based on the complexity of the service. This decision is officially published and broadcast on the radio. Failure to comply with these minimum services may lead to civil requisitioning, an emergency measure authorized by law in urgent and extremely serious situations or to ensure essential services. Such requisitioning is approved by the Council of Ministers and made public. The Committee also notes that, in accordance with national legislation (sections 123 to 127 of the Labour Code (Legislative Decree No. 5/2007)), civil requisitioning is authorized only where there is a risk of irreparable damage and may not impede the right to strike. The Committee notes the Government’s indication that, so far, no civil requisitioning has been necessary. While noting this detailed information, the Committee notes with regret that no information has been provided by the Government regarding the process of establishing the independent tripartite committee provided for in the 2016 Labour Code reform. The Committee hopes that the Government will take all the necessary steps to ensure that the independent tripartite committee responsible for determining minimum services in the event of a strike will be able, in the near future, to discharge its functions fully. The Committee requests the Government to provide information on the composition and operation of this tripartite body.

Article 5. Right of organizations of public servants to establish and join federations and confederations. The Committee notes the adoption of Act No. 20/X/2023, which entered into force on 23 May 2023, establishing the legal framework for public sector employment in Cabo Verde, including the fundamental principles of the public service. In accordance with sections 17 and 18 of the Act, public servants may join professional associations freely, exercise the principles of freedom of association and carry out trade union activities aimed at defending their members’ collective and individual rights. However, the Committee notes that the Government’s report does not contain any information, and the Act does not indicate anything, on the possibility for public sector trade unions to join federations of their own choosing, including federations comprising organizations from the public and private sectors. The Committee requests the Government to provide details in this regard.

CMNT_TITLE

Article 3 of the Convention. Minimum service in the event of a strike. In its previous comments, the Committee had noted with interest, within the framework of the 2016 legislative reform, the establishment of an independent tripartite body to determine the minimum services to be provided during a strike. The Committee previously noted that there were differing opinions on the nature, composition and operation of the tripartite body. The Committee notes from the information provided by the Government that discussions on this subject have continued, but that agreement has not been reached, as some consider that such a body should operate on an ad hoc basis and others on a permanent basis. The Committee notes that the Committee on Freedom of Association, in its examination of Case No. 3276 (384th Report, March 2018), requested the Government to provide additional information on the tripartite committee established by the Labour Code, indicating whether any implementing legislation was envisaged. The Committee notes that, according to the information provided by the Government, the matter will be settled, not by means of an implementing text, but within the framework of a new legislative review process, which will be dependent on a prior impact assessment of the Labour Code, as requested by the social partners. Like the Committee on Freedom of Association in Case No. 3276, the Committee hopes that the independent tripartite committee responsible for determining minimum services in the event of a strike will be able, in the near future, to discharge its functions fully, in order to allow a considered exchange of views on what minimum services should be in practice. Before the independent tripartite committee takes up its functions, the Committee requests the Government to provide detailed information on the manner in which minimum services are determined in the event of a strike in essential services.

Recourse to civil requisitioning. In its previous comments, the Committee had noted the Government’s indications that civil requisitioning must only be used in serious cases to avoid irreparable damage, and in no circumstances may it be used to impede the right to strike, and that it applies in cases of failure to comply with the minimum services as determined by agreement between the parties or by the tripartite committee. The Committee requests the Government to specify whether recourse to civil requisitioning is limited to ensuring the implementation of minimum services determined by the parties or by the tripartite committee, indicating the applicable legislative and regulatory provisions. It also requests the Government to provide detailed information on: (i) the manner in which civil requisitioning functions in practice, including in the absence of an agreement between the parties and in the absence of the functioning of the tripartite committee; and (ii) the frequency with which the public authorities have had recourse to civil requisitioning in recent years, with an indication of the requisition orders published, the services concerned and the percentage of workers requisitioned by service.

The Committee recalls that the Government may request ILO technical assistance in relation to all of the issues raised.

CMNT_TITLE

The Committee notes the observations of the National Workers’ Union of Cape Verde–Trade Union Confederation (UNTC–CS) received in September 2016, regarding the issues examined by the Committee in this comment.

Article 3 of the Convention. Minimum services in the event of a strike. In its previous comments, the Committee had noted with interest the establishment of an independent tripartite body to determine minimum services during a strike. The Committee notes the Government’s indication that a tripartite workshop was held in June 2017, organized with ILO assistance, during which the issues of minimum services and civil requisition in the case of a strike were addressed. With respect to the independent tripartite committee, the Government reports that the workshop recommended that: (i) the tripartite committee could establish a list of essential services to be submitted to the Council for Social Cooperation; (ii) the independent tripartite committee would work in cooperation with the Council for Social Cooperation; and (iii) the committee should be made up, in addition to its three permanent members, of two ad hoc members, chosen for each specific situation, according to the sector in which the strike takes place. The Committee also notes that the UNTC–CS has differing opinions from the Government about the nature, composition and operation of the independent tripartite committee; and that it presents a list of counterproposals intended to ensure the independence of the committee from the Council for Social Cooperation and the permanent nature of its composition. The Committee also notes the Government’s indication of the conclusion on 11 July 2017 of a strategic social cooperation agreement and an evaluation of the impact of the Labour Code to determine its possible re-examination in 2019. Recalling the possibility of requesting the technical assistance of the Office, the Committee encourages the Government and the social partners to pursue their efforts to establish a consensus on the composition and operation of the tripartite committee responsible for determining the minimum services in the event of a strike in essential services. The Committee requests the Government to indicate any progress made in this respect. The Committee also requests the Government to provide information on the possible formulation and adoption of a revised list of minimum services in essential services. Pending the commencement of the operation of the committee and the adoption of the list, the Committee requests the Government to provide information on the process of determining the minimum services in the event of a strike in essential services.

Recourse to civil requisition. In its previous comments, the Committee had requested the Government to take the necessary measures to limit the situations in which it is possible to have recourse to civil requisition. The Committee notes in this respect the Government’s indications that: (i) requisition must only be implemented in serious cases to avoid irreparable damage, and in no case may it be used to hinder the right to strike; (ii) following the legislative reform of 2016 in relation to the determination of minimum services by a tripartite committee, civil requisition may only be used in cases of failure to comply with the minimum services, as determined by an agreement between the parties or by the tripartite committee; and (iii) this legislative reform is the result of tripartite consensus. The Committee recalls that it is desirable to limit powers of requisitioning to cases in which the right to strike may be limited, or even prohibited, namely: (i) in the public service for public servants exercising authority in the name of the State; (ii) in essential services in the strict sense of the term; and (iii) in the case of an acute national or local crisis (see the 2012 General Survey on the fundamental Conventions, paragraph 151). The Committee considers that services may only be considered essential, for the purposes of restricting or prohibiting the right to strike, when their interruption would endanger the life, personal safety or health of the whole or part of the population (see General Survey op cit., paragraph 131). The Committee notes in this respect the recent complaint filed with the Committee on Freedom of Association (Case No. 3276) alleging that the imposition of civil requisition during a strike did not take into account the new rules in relation to the determination of minimum services. The Committee requests the Government to take the necessary measures to amend the legislative provisions concerned in order to limit requisition, considered as an exceptional measure, to the above situations.

Majority required to call a strike. In its previous comments, the Committee had requested the Government to take the necessary measures with a view to amending the Labour Code to ensure that, where a vote is held for the purpose of deciding on a strike, only the votes cast are counted. The Committee takes due note of the Government’s indication that, under sections 114(2) and (3) of the Labour Code, in enterprises in which the majority of workers are not represented by a union, the decision to strike requires both the participation of the majority of workers in the assembly and a vote in favour from the majority of voters, and not the majority of workers in the enterprise.

CMNT_TITLE

The Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2016, which are of a general nature. The Committee notes that the Government’s report has not been received. It notes, however, the adoption of Legislative Decree No. 1/2016 of 3 February 2016, amending the Labour Code, which takes into consideration certain issues raised by the Committee.

Article 3 of the Convention. Minimum services in the event of a strike. In its previous comments, the Committee asked the Government to take steps to amend section 123 of the Labour Code, which provided that, in the event of disagreement between the parties as to the determination of minimum services, the Government would establish the minimum services. The Committee recalled that any disagreement between the parties about the minimum services to be provided during a strike should be settled by an independent body. The Committee notes with interest that under section 123 of the amended Labour Code, the determination of minimum services during a strike will henceforth be carried out by an independent tripartite committee, composed of a workers’, employers’ and Government representative, and of two other members who they shall appoint by joint agreement. The Committee notes, however, that this development is without prejudice to the provisions of section 127, which provides that, in the event of a breach of the provisions on minimum services, the Government shall order civil requisitioning. While welcoming the reference to an independent tripartite body for the determination of minimum services during a strike, the Committee requests the Government to take the necessary measures to restrict recourse to civil requisitioning to the following cases: (i) in the public service for public servants who exercise authority in the name of the State; (ii) in essential services in the strict sense of the term; or (iii) in the event of an acute national or local crisis.

Majority required to call a strike. In its previous comments, the Committee requested the Government to take the necessary measures with a view to amending section 114(2) of the Labour Code, which provides that, in enterprises in which the workers are not represented by a union, a strike may be decided upon by the assembly of workers. Such an assembly shall be convened by 20 per cent of the workers, but a decision to call a strike is valid only if the majority of the workers are present in the assembly and when the majority of the workers present have voted for the strike. Noting that this provision has not been amended, the Committee recalls that, although the requirement of prior approval by a certain percentage of workers does not, in principle, raise problems of compatibility with the Convention, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes unduly difficult in practice. Considering that the requirement for a majority of the workers present in the assembly may be unduly difficult to achieve, the Committee once again requests the Government to take the necessary measures to amend section 114(2) to ensure that, where a vote is held for the purpose of deciding on a strike, only the votes cast are counted.

CMNT_TITLE

Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate their programmes. For several years the Committee has been asking the Government to amend the following provisions of the law:

• – section 114(2) of the Labour Code, to ensure that where a vote is held for the purpose of deciding on a strike (where workers are not represented by a union), only the votes cast are counted;
• – section 120, subparagraph 2 of the Labour Code, which allows an employer to conclude a contract with another enterprise for the supply of goods or services immobilized as a result of a strike, in order to limit the application of this provision to essential services in the strict sense of the term or public services of fundamental importance, in the event of an acute national or local crisis or non-observance of freely negotiated minimum services;
• – sections 123 and 127 of the Labour Code, so that any disagreement between the parties as to the minimum services to be provided during a strike are settled by an independent body and that recourse to civil requisitioning orders is confined to cases in which the minimum services established by the parties or an independent body, as the case may be, are not respected.

The Committee notes that following a request from the Government for support in giving effect to the Committee’s comments on this point, the Office conducted a mission and a tripartite seminar in 2012 and 2013 in the context of a technical assistance programme. In this connection the Committee notes the following information from the Government: (i) the ILO mission, supported by the Ministry of Youth, Employment and Human Resources Development, proved essential in securing better inclusion and understanding of the concepts of strike and civil requisitioning in social dialogue; (ii) the Council of Ministers gave a positive assessment of the results of the mission and, following the mission, noted with particular interest the recommendations made by the tripartite constituents as regards: building the bargaining technique capacity of the social partners present in essential services; promoting, in essential services, the collective negotiation of minimum services before the onset of collective disputes; implementing the recommendations of the Committee on Freedom of Association and establishing an independent body to be responsible for settling disputes over minimum services and composed of workers’ and employers’ representatives from the public and the private sectors; (iii) following a tripartite seminar in 2013, the social partners recommended that the establishment of such a body be discussed at the next meeting of the Council for Social Partnership and specified that the composition of the body should be bipartite, obey the principles of impartiality and neutrality and include recognized experts from the sectors concerned. They stressed that the solution proposed does not exclude the possibility for the Government to order civil requisitioning in cases where the minimum services decided on by the parties or an independent body are not respected; (iv) certain sectors were identified for the launching of negotiations on the content of minimum services in October 2013; and (v) the Government undertakes to implement the recommendations of the social partners through the labour administration.

The Committee welcomes the initiatives conducted with technical support from the Office and hopes that it will be able to note from the Government’s next report that there has been tangible progress in bringing the legislation into line with the Convention. The Committee requests the Government to report any developments in this regard.

CMNT_TITLE

Article 2 of the Convention. Right of workers and employers to form organizations without prior authorization. In its previous comments, the Committee asked the Government to take the necessary steps to ensure that workers excluded from the scope of the Labour Code, such as self-employed workers, workers governed by the public service regulations, agricultural workers and workers in labour-intensive sectors, benefit from the guarantees laid down in the Convention. The Committee notes that the Government indicates that: (1) under articles 52, 64 and 65 of the Constitution, self-employed workers, workers governed by the public service regulations, agricultural workers and workers in labour-intensive sectors, have the right to form organizations without prior authorization and enjoy freedom of association and freedom to register as organizations; (2) Act No. 42/VII/2009 of 27 July 2009 establishes for public employees the right to collective bargaining and to participate through their trade union associations; (3) regulations for specific legislation applying to agricultural workers and workers in labour-intensive sectors are on the parliamentary agenda for this year; and (4) in the meantime, the provisions of the Labour Code apply. The Committee requests the Government to provide information in relation to any developments in this respect and to provide copies of the legislative texts as soon as they have been adopted. The Committee reminds the Government that it may, should it so wish, seek technical assistance from the Office.

Article 3. Right of workers’ organizations to organize their activities and formulate their programmes. Majority required to call a strike. In its previous comments, the Committee noted that section 114(2) of the Labour Code provides that in enterprises where workers are not represented by a union, a strike may be decided upon by the assembly of workers. Such an assembly shall be convened by 20 per cent of the workers, but a decision to call a strike shall be valid only if a majority of the workers are present in the assembly and there is a majority vote by the workers present. The Committee notes, that according to the Government, the legislation contains no provisions on requirements for deciding on a strike where the workers are represented by a union, since unions are authorized by their statutes to declare and halt a strike. While noting the information supplied, in order to bring the legislation into full conformity with the Convention, the Committee asks the Government to take the necessary steps to amend section 114(2) of the Labour Code to ensure that where a vote is held for the purpose of deciding on a strike, only the votes cast are counted.

Replacement of striking workers. In its previous comments, the Committee asked the Government to amend section 120 of the Labour Code which prohibits the recruitment of workers to replace striking workers and allows the employer to conclude a contract with another enterprise for the supply of goods or services immobilized as a result of the strike. It furthermore pointed out that the application of section 120(2) should be confined to essential services in the strict sense of the term, or to public services of fundamental importance, in the event of an acute national or local crisis or non-observance of freely negotiated minimum services. The Committee again asks the Government to take the necessary steps to amend section 120 of the Labour Code along these lines. It asks the Government to provide information on any measures taken to this end in its next report.

Minimum services. The Committee previously asked the Government to take steps to amend section 123 of the Labour Code, which provides that, in the event of disagreement between the parties as to the determination of minimum services, the Government shall establish the minimum services. The Committee points out that any disagreement between the parties about the minimum services to be provided during a strike should be settled by an independent body. The Committee accordingly asks the Government once again to take the necessary measures to amend section 123 of the Labour Code accordingly, and to provide information on any measures taken to this end in its next report.

Civil requisitioning orders. In its previous comments, the Committee requested the Government to amend section 127, which provides that in the event of failure to comply with the provisions on minimum services, the Government may issue civil requisitioning orders. The Committee is of the view that recourse to the requisitioning of workers should be confined to cases in which strikes may be restricted or prohibited, namely: (1) in the public service only for public servants exercising authority in the name of the State; (2) in essential services in the strict sense of the term, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; or (3) in the event of an acute national or local crisis. The Committee requests the Government to take the necessary steps to amend section 127 in order to take account of the abovementioned principle. It asks the Government to provide information on any measures taken to this end in its next report.

CMNT_TITLE

The Committee notes the comments made by the Cape Verde Confederation of Free Trade Unions (CCSL) dated 19 February 2010, asserting that sections 15 (transitional provision on labour contracts concluded before the law entered into force), 70 (acquisition of legal personality by trade unions), 110 (publication and entry into force of collective agreements) and 353 (holidays of maritime workers) of the Labour Code, the amendment of which was requested by the Committee on Freedom of Association in Case No. 2622, are still in force and that they offend the principles of freedom of association. The Committee notes with interest in this connection the adoption of Legislative Decree No. 5/2010 of 16 June 2010, which amends the offending provisions of the Labour Code. It notes in particular that section 70, as currently worded, provides for trade union by-laws to be published on the Labour Ministry’s website and to be printed by the government printing office in the labour and employment bulletin.

The Committee also takes note of the comments made by the National Union of Workers of Cape Verde–Trade Union Federation (UNTC–CS) dated 19 February 2010, on the application of the Convention. It likewise notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2534.

Article 2 of the Convention. Right of workers and employers to form organizations without prior authorization. In its previous comments, the Committee asked the Government to take the necessary measures to ensure that workers excluded from the scope of the Labour Code, such as self-employed workers, workers governed by the public service regulations, agricultural workers and workers in labour-intensive sectors, benefit from the guarantees laid down in the Convention. The Committee notes the information supplied by the Government to the effect that these workers are covered by special laws, without prejudice to the application of the Labour Code to matters not regulated by the special laws. The Committee therefore requests the Government to provide copies of the laws applying to categories of workers excluded from the scope of the Labour Code.

Furthermore, the Committee asks the Government to take the necessary steps to provide for redress through the courts against any administrative decision relating to the registration of unions. The Committee notes the information from the Government to the effect that no provision has been made for such redress but that unions may, through their members and without prejudice to administrative remedies and provided the prescribed conditions are met, seek judicial redress against decisions under Legislative Decree No. 14–A/83 of 22 March 1983.

Article 3. Replacement of striking workers. In its previous comments, the Committee asked the Government to amend section 120 of the Labour Code, which prohibits the recruitment of workers to replace striking workers and allows the employer to conclude a contract with another enterprise for the supply of goods or services immobilized as a result of the strike. It furthermore pointed out that the application of subsection 2 should be confined to essential services in the strict sense of the term, or to public services of fundamental importance, or situations of acute national crisis. The Committee notes in this connection that, according to the Government, this provision has been maintained. The Committee therefore once again asks the Government to take the necessary steps to amend section 120 of the Labour Code to ensure that the employer may conclude a contract with another enterprise for the supply of goods or services immobilized as a result of the strike, only for essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee requests the Government to provide information on any measures taken in this respect in its next report.

Majority required to call a strike. In its previous comments, the Committee noted that section 114(2) of the Labour Code provides that in enterprises in which the workers are not represented by a union, a strike may be decided upon by the assembly of workers. Such an assembly shall be convened by 20 per cent of the workers, but a decision to call a strike is valid only if the majority of the workers are present in the assembly and when the majority of the workers present have voted for the strike. The Committee notes that the legislation contains no provision setting forth the requirements for deciding on a strike where the workers are represented by a union. The Committee therefore requests the Government to provide information on the conditions to be met for deciding on a strike when the workers are represented by a union.

Minimum services. The Committee requested the Government to take steps to amend section 123 of the Labour Code which provides that minimum services in the event of a strike shall be determined by agreement between the employers and workers concerned or their representatives and that, in the event of disagreement between the parties, the Government shall establish the minimum services. The Committee notes in this connection that, according to the Government, minimum services are defined as those which are indispensable, necessary and adequate to satisfy the essential needs of a community, without which the latter would suffer irreparable harm or an inestimable sacrifice. The Committee points out that any disagreement between the parties about the minimum services to be provided during a strike should be settled by an independent body. The Committee therefore once again requests the Government to take the necessary steps and measures to amend section 123 of the Labour Code accordingly, and to provide information on any measures taken to this end in its next report.

Civil requisitioning orders. In its previous comments, the Committee requested the Government to amend section 127, which provides that in the event of failure to comply with the provisions on minimum services, the Government may issue civil requisitioning orders. The Committee notes the information from the Government to the effect that this provision has been maintained. It reminds the Government that the use of requisitioning orders other than in essential services or circumstances of the utmost gravity, constitutes a very serious violation of freedom of association. The Committee therefore once again requests the Government to take the necessary measures to amend section 127 of the Labour Code so that recourse to civil requisitioning orders may be had only for essential services in the strict sense of the term or in circumstances of the utmost gravity. It requests the Government to provide information on any measures taken to this end in its next report.

CMNT_TITLE

The Committee notes with regret that the Government’s report has not been received. In its previous direct request, the Committee noted that a draft Labour Code had been prepared. The Committee notes that the Labour Code of Cape Verde was approved by Legislative Decree No. 5/2007. The Committee observes that certain of its provisions are not in conformity with the Convention.

Article 2 of the Convention.  Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that section 2 of Legislative Decree No. 5/2007, approving the Labour Code, provides that the Code applies to subordinate labour relationships, excluding from its scope of application self-employed workers, workers governed by the conditions of service of the public service, agricultural workers and workers in labour-intensive sectors. The Committee recalls that the Convention applies to all workers, without distinction whatsoever. The Committee requests the Government, where it is not so provided by specific laws or regulations, to take the necessary measures to ensure that the workers referred to above benefit from the guarantees laid down in the Convention. The Committee requests the Government to provide information in this respect in its next report.

Right of workers and employers to establish organizations without previous authorization. The Committee notes that, with regard to the recognition of the legal personality of workers’ organizations, the Labour Code does not establish the right to legal redress through the courts against any administrative decision relating to the registration of unions. The Committee requests the Government to take the necessary measures to establish procedures for legal redress against any administrative decision relating to the registration of trade unions.

Trade union registrations. In its previous comments, the Committee requested the Government to indicate the period required for the publication of the statutes of a trade union in the Official Bulletin and, if no such time limit is established, to determine a reasonable period for publication so that no obstacles are created for the establishment of trade unions. The Committee notes that section 70 of the new Labour Code provides that, once the Office of the Attorney‑General issues a favourable opinion for the registration of the union, publication is ordered in the Official Bulletin within 20 days from the day on which the application was submitted for registration.

Article 3. Replacement of striking workers. The Committee notes that section 120 of the Labour Code prohibits the recruitment of workers to replace striking workers and allows the employer to conclude a contract with another enterprise for the supply of goods or services immobilized as a result of the strike. The Committee considers that the application of subsection 2 should be confined to essential services in the strict sense of the term, or to public services of essential importance, or in the event of an acute national crisis. The Committee therefore requests the Government to take the necessary measures to amend section 120 of the Labour Code to confine the possibility for the employer to conclude a contract with another enterprise for the supply of goods or services immobilized as a result of the strike to essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

Majorities required to call a strike. The Committee notes that section 114(2) provides that, in enterprises in which the workers are not represented by the union, a strike may be decided upon by the assembly of workers. Such an assembly shall be convened by 20 per cent of the workers, but a decision to call a strike is only valid if the majority of the workers are present in the assembly and when the majority of the workers present have voted for the strike. In this respect, the Committee recalls that, although the requirement of prior approval by a certain percentage of workers does not, in principle, raise problems of compatibility with the Convention, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult in practice (see General Survey on freedom of association and collective bargaining, 1994, paragraph 170). The Committee considers that the requirement of a majority of the workers present in the assembly may be difficult to achieve. The Committee therefore requests the Government to take the necessary measures to amend section 114(2) so as to reduce the majority of workers participating in the assembly that is required to vote for a strike.

Minimum service. The Committee notes that section 123 of the new Labour Code provides that minimum services in the event of a strike shall be determined by agreement between the employers and workers concerned or their representatives and that, in the event of disagreement between the parties, the Government shall establish the minimum service. In this respect, the Committee requests the Government to take measures to amend section 123 of the Labour Code so as to ensure that, in the event of a dispute between the parties in relation to the minimum services to be provided during the strike, this matter is resolved by an independent body.

The Committee also notes that section 127 provides that, in the event of failure to comply with the provisions respecting the minimum service, the Government may issue civil requisitioning orders. In this respect, the Committee recalls that the use of requisitioning orders outside essential services or circumstances of the utmost gravity, constitutes a very serious violation of freedom of association. The Committee requests the Government to take the necessary measures to amend section 127 to confine the possibility of recourse to civil requisitioning orders to essential services in the strict sense of the term or circumstances of the utmost gravity.

CMNT_TITLE

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

In its previous direct request, the Committee noted that a draft Labour Code had been prepared. On that occasion, the Committee made the following comments on the draft text.

Article 2 of the Convention. 1. The Committee noted that section 1 of the draft Labour Code excludes from its scope of application agricultural workers, workers in labour-intensive sectors and dockworkers. The Committee reminded the Government that the Convention applies to all workers, without distinction whatsoever.

2. The Committee noted that section 59 of the draft Labour Code, respecting the recognition of the legal personality of workers’ organizations, does not provide for a right of appeal to the courts against any administrative decision relating to the registration of trade unions. The Committee reminded the Government the necessity to incorporate the right of legal redress in the draft Labour Code.

3. The Committee also noted that subsection 4 of section 59 provides that workers’ organizations may not commence their activities until their statutes have been published in the Official Bulletin. The Committee requested the Government to indicate the period required for such publication and, if no such time limit is established, to determine a reasonable period for publication so that no obstacles are created for the establishment of trade unions.

Articles 3 and 10. Right to strike. 1. Replacement of striking workers. The Committee noted that section 110(2) of the draft Labour Code prohibits the recruitment of workers to replace striking workers and permits the employer to conclude a contract with another enterprise for the provision of goods and services, which are immobilized as a result of the strike. The Committee considers that the application of subsection (2) should be confined to essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

2. Minimum service. The Committee noted that, in the context of Case No. 2044, the Committee on Freedom of Association drew its attention to section 12 of Legislative Decree No. 76/90 (section 112(4) of the draft Labour Code), under which it is the responsibility of the employer, after hearing the views of the workers’ representatives, to determine the minimum service in enterprises or establishments with a view to meeting essential social needs. In this respect, the Committee requested the Government to take measures to amend the legislation so as to ensure that, in the event of disagreement between the parties concerning the minimum service to be provided during the strike (the activities to be undertaken and the persons responsible for doing so), this divergence is resolved by an independent body.

The Committee welcomes the fact that the Government has indicated that it will take account of its comments in the draft Labour Code concerning the application of Articles 2, 3, and 10 of the Convention and that the most representative organizations will be consulted in this respect. The Committee requests the Government to keep it informed of developments relating to the draft Labour Code and to provide a copy as soon as it is adopted

The Committee notes the Committee on Freedom of Association’s conclusions in Case No. 2534 concerning the Government’s use of civil requisition during strikes. The Committee requests that the Government take the necessary measures to amend Legislative Decree No. 76/90 so as to ensure that minimum services are determined with the participation of the Government and of the workers and employers concerned, and that any difference of opinion in this respect be settled by an independent body. Moreover, the Committee requests the Government to guarantee that civil requisition in cases of strike is only used in the framework of the essential services in the strict sense of the term or in public services of fundamental importance or in cases of national crisis.

CMNT_TITLE

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

In its previous direct request, the Committee noted that a draft Labour Code had been prepared. On that occasion, the Committee made the following comments on the draft text.

Article 2 of the Convention. 1. The Committee noted that section 1 of the draft Labour Code excludes from its scope of application agricultural workers, workers in labour-intensive sectors and dockworkers. The Committee reminded the Government that the Convention applies to all workers, without distinction whatsoever.

2. The Committee noted that section 59 of the draft Labour Code, respecting the recognition of the legal personality of workers’ organizations, does not provide for a right of appeal to the courts against any administrative decision relating to the registration of trade unions. The Committee reminded the Government the necessity to incorporate the right of legal redress in the draft Labour Code.

3. The Committee also noted that subsection 4 of section 59 provides that workers’ organizations may not commence their activities until their statutes have been published in the Official Bulletin. The Committee requested the Government to indicate the period required for such publication and, if no such time limit is established, to determine a reasonable period for publication so that no obstacles are created for the establishment of trade unions.

Articles 3 and 10. Right to strike. 1. Replacement of striking workers. The Committee noted that section 110(2) of the draft Labour Code prohibits the recruitment of workers to replace striking workers and permits the employer to conclude a contract with another enterprise for the provision of goods and services, which are immobilized as a result of the strike. The Committee considers that the application of subsection (2) should be confined to essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

2. Minimum service. The Committee noted that, in the context of Case No. 2044, the Committee on Freedom of Association drew its attention to section 12 of Legislative Decree No. 76/90 (section 112(4) of the draft Labour Code), under which it is the responsibility of the employer, after hearing the views of the workers’ representatives, to determine the minimum service in enterprises or establishments with a view to meeting essential social needs. In this respect, the Committee requested the Government to take measures to amend the legislation so as to ensure that, in the event of disagreement between the parties concerning the minimum service to be provided during the strike (the activities to be undertaken and the persons responsible for doing so), this divergence is resolved by an independent body.

The Committee welcomes the fact that the Government has indicated that it will take account of its comments in the draft Labour Code concerning the application of Articles 2, 3, and 10 of the Convention and that the most representative organizations will be consulted in this respect. The Committee requests the Government to keep it informed of developments relating to the draft Labour Code and to provide a copy as soon as it is adopted.

CMNT_TITLE

The Committee notes the Government’s report. The Committee further notes the comments made by the National Union of Workers of Cape Verde - Trade Union Confederation (UNTC-CS) and the Confederation of Free Trade Unions of Cape Verde (CCSL) and the Government’s reply thereto. These comments concern issues already raised by the Committee.

In its previous direct request, the Committee noted that a draft Labour Code had been prepared. On that occasion, the Committee made the following comments on the draft text.

Article 2 of the Convention. 1. The Committee noted that section 1 of the draft Labour Code excludes from its scope of application agricultural workers, workers in labour-intensive sectors and dockworkers. The Committee reminded the Government that the Convention applies to all workers, without distinction whatsoever.

2. The Committee noted that section 59 of the draft Labour Code, respecting the recognition of the legal personality of workers’ organizations, does not provide for a right of appeal to the courts against any administrative decision relating to the registration of trade unions. The Committee reminded the Government the necessity to incorporate the right of legal redress in the draft Labour Code.

3. The Committee also noted that subsection 4 of section 59 provides that workers’ organizations may not commence their activities until their statutes have been published in the Official Bulletin. The Committee requested the Government to indicate the period required for such publication and, if no such time limit is established, to determine a reasonable period for publication so that no obstacles are created for the establishment of trade unions.

Articles 3 and 10. Right to strike. 1. Replacement of striking workers. The Committee noted that section 110(2) of the draft Labour Code prohibits the recruitment of workers to replace striking workers and permits the employer to conclude a contract with another enterprise for the provision of goods and services, which are immobilized as a result of the strike. The Committee considers that the application of subsection (2) should be confined to essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

2. Minimum service. The Committee noted that, in the context of Case No. 2044, the Committee on Freedom of Association drew its attention to section 12 of Legislative Decree No. 76/90 (section 112(4) of the draft Labour Code), under which it is the responsibility of the employer, after hearing the views of the workers’ representatives, to determine the minimum service in enterprises or establishments with a view to meeting essential social needs. In this respect, the Committee requested the Government to take measures to amend the legislation so as to ensure that, in the event of disagreement between the parties concerning the minimum service to be provided during the strike (the activities to be undertaken and the persons responsible for doing so), this divergence is resolved by an independent body.

The Committee welcomes the fact that the Government has indicated in its report that it will take account of its comments in the draft Labour Code concerning the application of Articles 2, 3, and 10 of the Convention. The Committee further notes that according to the Government, the most representative organizations will be consulted in this respect. The Committee requests the Government to keep it informed of developments relating to the draft Labour Code and to provide a copy as soon as it is adopted.

CMNT_TITLE

The Committee notes the Government’s first report.

The Committee notes that a draft Labour Code has been prepared and transmitted to the Office for comments. The Committee, noting that this draft text would repeal most of the legislation in force relating to the application of the Convention, considers it appropriate to comment on the draft text.

Article 2 of the Convention. 1. Scope of application. The Committee notes that section 1 of the draft Labour Code excludes from its scope of application agricultural workers, workers in labour-intensive sectors and dockworkers. The Committee reminds the Government that the Convention applies to all workers, without distinction whatsoever, and requests it to indicate the provisions which guarantee to the above workers the rights afforded by the Convention. The Committee also requests the Government to provide information on the legislation regulating the right to organize of workers in the public sector and to provide a copy of such legislation with its next report.

2. Legal redress. The Committee notes that section 59 of the draft Labour Code, respecting the recognition of the legal personality of workers’ organizations, does not provide for a right of appeal to the courts against any administrative decision relating to the registration of trade unions. The Committee requests the Government to indicate whether this possibility is envisaged in another legislative provision and, if so, to take the necessary measures to incorporate the right of legal redress in the draft Labour Code.

3. The Committee also notes that subsection 4 of section 59 provides that workers’ organizations may not commence their activities until their statutes have been published in the Official Bulletin. The Committee requests the Government to indicate the period required for such publication and, if no such time limit is established, to determine a reasonable period for publication so that no obstacles are created for the establishment of trade unions.

Articles 3 and 10. Right to strike. 1. Replacement of striking workers. The Committee notes that section 110(2) prohibits the recruitment of workers to replace striking workers and permits the employer to conclude a contract with another enterprise for the provision of goods and services which are immobilized as a result of the strike. The Committee considers that the application of subsection 2 should be confined to essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee requests the Government to take the necessary measures to amend the draft Labour Code to bring it into conformity with the Convention, and to keep it informed on this matter.

2. Minimum service. The Committee notes that, in the context of Case No. 2044, the Committee on Freedom of Association drew its attention to section 12 of Legislative Decree No. 76/90 (section 112(4) of the draft Labour Code), under which it is the responsibility of the employer, after hearing the views of the workers’ representatives, to determine  the minimum service in enterprises or establishments with a view to meeting essential social needs. In this respect, the Committee requests the Government to take measures to amend the legislation so as to ensure that, in the event of disagreement between the parties concerning the minimum service to be provided during the strike (the activities to be undertaken and the persons responsible for doing so), this divergence is resolved by an independent body. The Committee requests the Government to keep it informed of any measures adopted in this connection.

The Committee requests the Government to keep it informed of developments relating to the draft Labour Code and to provide a copy as soon as it is adopted.