Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Workmen's Compensation (Accidents) Convention, 1925 (No. 17) - Guinea - Bissau (Ratification: 1977)

Reporting obligations. The Committee notes the Government’s reports on Conventions Nos 12, 17, 18 and 19, received for the first time since the year 2000, notwithstanding the numerous reminders sent to the Government. It regrets, however, that they still do not reply to most of the questions raised in the comments of 2001 and repeated in 2008, 2009 and 2010. The National Union of Workers of Guinea-Bissau (UNTG) in its observations on the Government’s reports on ratified Conventions, stressed that the Government should step up its efforts to comply with international labour standards and bring its legislation in line with the ILO Conventions. In the UNTG’s opinion, the Government should take all necessary measures to strengthen its technical, material and financial capabilities to enforce the application of the labour standards in the private and public sectors. The Committee hopes that the Government will take these observations into account and will not fail to include the information requested in its next detailed reports on these Conventions due before 1 September 2012. The Government is also reminded to provide detailed information on the practical application of these Conventions as required in Part V of the report forms, particularly on the number and nature of the occupational accidents reported and the amount of benefits paid.

Legal framework of protection against occupational accidents and diseases in Guinea-Bissau. The said legal framework is composed of several laws and decrees, including Decree No. 4/80 on Compulsory Insurance on Occupational Accidents and Diseases (6 February 1980), Regulatory Decree No. 6/80 regulating Decree No. 4/80, Legislative Decree No. 5/86 on Establishment of a Social Protection Regime (29 March 1986), Legislative Decree No. 1/97 on the Replacement of the National Insurance and Social Protection Institute by the National Institute of Social Security (INPS) and GUIBIS-Guinea-Bissau Insurances SÀRL (29 April 1997), and Act No. 4/2007 on the Legal Framework for Social Protection (3 September 2007). Decree No. 4/80 governs compulsory insurance against occupational accidents and diseases providing for the workers’ (and their family members’) right to compensation. It sets the definition of occupational accidents and diseases and rules regarding the exercise of the rights to compensation under the compulsory insurance scheme, and financed through employers’ and workers’ contributions, operated by the INPS. Regulatory Decree No. 6/80 establishes different types of benefits to which a worker suffering an occupational accident or disease is entitled according to the degree of incapacity, and sets forth the rules to determine the base salary upon which compensation is paid. Legislative Decree No. 5/86 repeals the provisions of the Agricultural Code and establishes the basis of the general regime of social security. Legislative Decree No. 1/97 replaces the former National Insurance and Social Protection Institute with the INPS. Lastly, Act No. 4/2007 establishing a Legal Framework for Social Protection for the population of the country, consists of three schemes: Citizenship Social Protection of a non-contributory nature; Mandatory Social Protection, which is a contributory regime covering all wage earners (nationals or foreigners); and a voluntary Complementary Social Security scheme. The Committee would ask the Government to complete the above description of the legal framework existing in the country and providing protection against occupational accidents and diseases, clarifying in particular: (i) whether Act No. 4/2007 has entered into force and been regulated; (ii) whether Decree No. 4/80 and Regulatory Decree No. 6/80 have been repealed by Act No. 4/2007; (iii) the relations between Regulatory Decree No. 5/86 and Act No. 4/2007, with respect to their scope of application, rules regarding foreign workers, benefits and degrees of compensation for incapacity of workers due to occupational accidents and diseases; (iv) proposals for reforming this framework and elaborating new legislation.

Adoption of the list of occupational diseases. The Committee recalls that back in 2000, the Government stated that the INPS, which has competence for workers’ compensation for occupational accidents and diseases, was having difficulty in identifying occupational diseases, and consequently, the Ministry of Public Health had not been able to adopt a list of such diseases. In its 2011 report on Convention No. 18, the Government regretted that Guinea-Bissau has neither enacted a legal regime regulating occupational diseases nor adopted a list of such diseases but reported that a Commission had been established to review the legislation regarding industrial accidents and to draft legislation and establish a list of occupational diseases. While taking due note of these developments, the Committee wishes to remind the Government that by ratifying Convention No. 18 it has made the list of diseases in Schedule to Article 2 of the Convention part of the national legal order. That list was elaborated by the International Labour Conference back in 1925 specifically for the purpose of providing countries, which had no capacity to establish their own lists, with a ready-made compendium of diseases recognized as occupational on the basis of the best international experience available at that time. Since then, the ILO list of occupational diseases has been complemented on several occasions (see Conventions Nos 42 and 121 and Recommendation No. 194) by new diseases the professional origin of which was ascertained by the evolution of scientific knowledge. The diseases listed in Convention No. 18 ratified by Guinea-Bissau therefore constitute the minimum protection to be guaranteed and must be automatically recognized as occupational where contracted in the conditions prescribed in the Schedule by all the national authorities for the purposes of workmen’s compensation. The Committee would like the Government to explain what legal or other reasons prevented it for so long from bringing this list to the attention of the national labour administration, social insurance and judicial authorities in order to ensure the practical implementation of the obligations assumed by the country under Convention No. 18. The Committee again expresses the hope that the Government will take all necessary steps to ensure, through the adoption of the new legislation referred to in its report, that the list of occupational diseases established by the Convention becomes fully operational and legally enforceable in the country for the purpose of workmen’s compensation.

Compensation for occupational accidents and diseases. The Committee notes from the report on Convention No. 17 that, in practice, compensation may be paid wholly as a lump sum. Please indicate what authority is competent to decide that payment shall be made in a lump sum and what guarantees, if any, for the proper utilization of the lump sum it ordinarily requires, in accordance with Article 5 of Convention No. 17. The report also states that public servants are not subject to any legal framework in relation to compensation in case of industrial accidents, but, if a public servant suffers a personal injury due to an industrial accident, he/she receives compensation in the form of a sum of money. The Committee would ask the Government whether any consideration was given to the possibility to include public servants within the legal framework protection against occupational accidents and diseases. Finally the Committee notes that, according to section 17(2) of Decree No. 6/80, where the incapacity is such that the injured person must have the help of another person or special care, the pension may be increased to up to 100 per cent of the basic wage. Please indicate the number of people who are actually receiving such an increased pension.

Application to agricultural wage earners. In its previous reports on Convention No. 12, the Government had indicated that Decrees Nos 4/80 and 6/80 governing compulsory insurance against occupational accidents and diseases applied to agricultural wage earners. In its 2011 report, the Government indicates that, according to section 1(b) of Chapter I of Legislative Decree No. 5/86 only agricultural wage earners whose employers can be identified are mandatorily covered, while independent agricultural wage earners who do not perform their work in a “family regime”, as set out in section 2(2)(d) of Decree No. 4/80 are excluded from coverage. Section 17 of Act No. 4/2007 provides, however, that wage earners in all branches and sectors are to be included in the Mandatory Social Protection System, provided that the employer they work for can be identified, with the exclusion only of domestic workers who are subject to a special regime. The Committee would like the Government to explain what agricultural wage earners are covered by the “family regime” and whether they benefit from the protection given by the legislation cited above. Please explain also the special regime applicable to the domestic workers.

Section 6 et seq. of Decree No. 4/80 set forth a general definition of occupational accidents as well as the definitions related to specific sectors such as agriculture, where according to the Government, occupational accidents are defined as the wrong use of chemical products and protection equipment. The Committee wishes to point out that the principle of equality of treatment of agricultural wage earners implies that they should benefit from the same definition of occupational accidents that is applicable to other workers. The Government should therefore consider harmonizing the different definitions of occupational accidents so that workers in different sectors of activities would benefit from the same protection and compensation.

The Government states that it has no statistics on occupational accidents and diseases because most of agricultural wage earners are not aware of their obligation under Article 20 of Decree No. 4/80 to report the occurrence of any occupational accident or disease to the National Institute of Social Security. The General Labour Inspectorate has neither special knowledge in the field of agricultural work nor financial nor human resources to carry out inspections in this sector. Most occupational accidents and diseases are caused by the fact that agricultural workers do not wear suitable protection equipment in carrying out their tasks. Some companies fail to comply with their obligations under occupational accidents and diseases legislation and some others are not even registered with the INPS. The Committee notes the practical difficulties encountered by the Government in the application of Convention No. 12. It observes that these difficulties will not go away without systemic and vigorous action taken by the Government in cooperation with the social partners to raise awareness of workers and companies of their respective rights and obligations, establish simple and rapid procedures for reporting occupational accidents supported by insurance compensation and labour inspection, promote the use of protection equipment and safer technologies, etc. The Committee asks the Government to step up its efforts to reduce the gap between the agricultural and the industrial sectors with regard to protection against occupational accidents and diseases and to indicate the concrete measures taken in this respect in its next report.

Equality of treatment of foreign workers. In its previous comments concerning Convention No.19, the Committee pointed out that section 3(1) of Decree No. 4/80 is inconsistent with the Convention in that it lays down reciprocity as a requirement for equality of treatment between foreign workers employed in Guinea-Bissau and national workers. In response, the Government mentions that article 28 of the Constitution forbids any discrimination between foreigners and citizens and that under the current legal order, equality of treatment regarding accident compensation is granted to all workers. In practice, the Government indicates that the General Labour and Social Security Inspectorate did not find any situation amounting to unequal treatment of injured workers, and that no judicial decisions have been rendered evidencing unequal treatment between foreign and national workers.

The Committee also notes that section 17(2) of Act No. 4/2007 provides that workers who suffered injuries as a result of an industrial accident are covered by the mandatory social protection scheme without any condition as to residence in the country, and section 3 requires the Government to foster the conclusion or adherence to international agreements aiming at the reciprocal recognition of equality of treatment of the nationals of the countries concerned. The Committee recalls, in this respect, that Convention No. 19 lays down a system of automatic reciprocity between the 121 ILO member States which have ratified it, and thereby ensures that nationals of all countries party to the Convention, as well as their dependants, benefit from national treatment in respect of workmen’s compensation. It would therefore be more consistent with the Convention and the Act No. 4/2007 for section 3(1) of Decree No. 4/80 to be amended so as to delete the reciprocity requirement. The Committee also requests the Government to indicate whether, pursuant to Article 1(2) of the Convention, any compensation is paid for injured persons or their dependants residing outside the country, and if so, to provide the statistical data confirming these payments.