Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 342, Juin 2006

Cas no 2408 (Cabo Verde) - Date de la plainte: 16-FÉVR.-05 - Clos

Allegations: The Cape Verde Confederation of Free Trade Unions (CCSL) alleges that, in spite of Cape Verde having ratified Convention No. 98 in 1979, there is no regulation of collective bargaining in the country and only one collective agreement has been concluded at national level. Furthermore, the complainant alleges failure to comply with the agreement concluded in the Council for Social Cooperation with regard to calculating supplementary hours and overtime pay

257. The complaint is contained in a communication from the Cape Verde Confederation of Free Trade Unions (CCSL) dated 16 February 2005. The complainant sent additional information in a communication dated 14 March 2005 and new allegations in a communication dated 26 July 2005.

1. 258. The Government sent its observations in communications dated 27 April 2005 and 31 January 2006.
2. 259. Cape Verde has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 260. In its communications of 16 February and 14 March 2005, the Cape Verde Confederation of Free Trade Unions (CCSL) alleges that the Government has failed to comply with Article 4 of Convention No. 98. According to the complainant, despite the fact that Cape Verde ratified this Convention in 1979, since then there has been only one instance of collective bargaining, which took place in the safety sector in 1998, covering 573 of the country’s 144,310 workers. The complainant states that, although the collective agreement in question is a national one, it is not respected by enterprises.
2. 261. The complainant adds that, although the Government has amended labour legislation on two occasions, collective bargaining has still not been regulated, and this is greatly to the detriment of the workers of Cape Verde, the vast majority of whom are covered by individual contracts of employment. Furthermore, the initial draft of the Labour Code of Cape Verde contains no provisions to facilitate collective bargaining. The complainant organization adds that Cape Verde enterprises now opt unilaterally for services contracts.
3. 262. Lastly, in its communication of 26 July 2005, the complainant states that in December 2003 the Government and nurses’ unions signed an agreement containing a range of previous demands regarding pay increases, supplementary hours, overtime pay and weekly rest, among others. The complainant alleges that on 18 June 2004 the Ministry of Health unilaterally ceased to apply section 18 of the agreement, which covers overtime work. The complainant began proceedings in respect of this action which are still pending. Furthermore, in May 2005, the same ministry changed the way in which supplementary hours are calculated, violating sections 16 and 17 of the agreement.
4. B. The Government’s reply
5. 263. In its communications of 27 April 2005 and 31 January 2006, the Government states that the General Legal Provisions for Labour Relations (RJGRT), approved by Legal Decree No. 62/87 of 30 June, amended by Legal Decree No. 51-A/89 of 26 June and confirmed by resolution No. 32/III/89 of 30 December 1989, and amended through Act No. 101/IV/93 of 31 December, contains a whole section devoted to collective bargaining, and collective agreements in force in the country operate on the basis of these legal provisions.
6. 264. The Government expresses its desire for an increase in collective bargaining, which can be seen through the Government’s legislative programme, the Ministry of Labour’s plan of activities and the actions of the labour administration services. However, according to the Government, the central role which must be played by unions and employers’ representatives in this respect should not be forgotten. The State’s role is in fact simply that of a coordinator or motivator, and in this regard it has fulfilled its function.
7. 265. The Government denies that there has only been one instance of collective bargaining in Cape Verde, citing as a new example the bargaining which took place in 2002 between Cape Verde Telecom and unions, as well as bargaining currently under way. The 1998 collective agreement concerning private security services has been reviewed again in 2004.
8. 266. According to the Government, the preponderance of individual labour contracts over collective contracts is not due to a lack of regulation, as the complainant claims, nor is it the sole responsibility of the State, since collective bargaining must be voluntary. So, once the right conditions have been established, as they have been in Cape Verde, it falls to unions and employers to bargain in order to sign collective agreements. The Government adds that in any event, the examples of individual contracts given by the complainant organization date back before the adoption of the legislation mentioned.
9. 267. With regard to the allegations that successive amendments to legislation have not led to regulation of collective bargaining, the Government states that all the legislative processes carried out have involved the social partners in order to reach a consensus, in accordance with the provisions of the Constitution and the spirit of dialogue and social cooperation. In this regard, the new Labour Code of Cape Verde is currently being discussed with the social partners, including the CCSL, and being studied by the Council for Social Cooperation. The Government expresses its surprise, however, that the CCSL has not once mentioned collective bargaining within the Council for Social Cooperation, something which is dealt with in Part I, Section II, Chapter II (sections 87 to 100) of the Labour Code of Cape Verde. The Government thus expresses concern at this complaint, given that the complainant has the opportunity to have its views considered by the Council. As regards the contract for services, the Government states that, although this type of contact is regulated in Cape Verde, it has a different function from the labour contract and that every time there exists a legal subordination relationship, there is a labour contract.

C. The Committee’s conclusions

1. 268. The Committee observes that this case concerns the Government’s failure to promote collective bargaining, in accordance with Article 4 of Convention No. 98, which has been ratified by Cape Verde, and violations of sections 16, 17 and 18 of the agreement concluded between the Government and nurses’ unions by the Ministry of Health.
2. 269. With regard to the alleged failure on the part of the Government to promote collective bargaining, the Committee notes that, according to the complainant, only one collective agreement has been concluded in Cape Verde, in the health and safety sector, since the ratification of Convention No. 98 in 1979, and that the initial draft of the Labour Code of Cape Verde contains no provisions to facilitate collective bargaining.
3. 270. The Committee notes that the Government, for its part, states that an entire chapter of the General Legal Provisions for Labour Relations (RJGRT) in force is devoted to collective bargaining (the Government attaches a copy of the relevant sections of the RJGRT); that the Government promotes collective bargaining through its legislative programme, the Ministry of Labour’s plan of activities and the actions of the labour administration services, but that it falls to unions and employers to undertake bargaining. The Government also underlines that there are other collective agreements not mentioned by the complainant, such as that concluded by Cape Verde Telecom, and that the complainant has not mentioned the issue of collective bargaining within the Council for Social Cooperation, of which the CCSL is part and which is at present discussing the new Labour Code of Cape Verde.
4. 271. The Committee observes that, although collective bargaining in Cape Verde is regulated by Section II of the RJGRT, very few collective agreements have been concluded since the Convention was ratified, a fact confirmed by the Government, which mentions only the agreements concluded in the health and safety sector and by Telecom and those which are currently under discussion, without giving further details. The Committee therefore observes that, although the Government cites various measures intended to promote collective bargaining, the conclusion of collective agreements has not been sufficiently promoted in the country in accordance with Article 4 of Convention No. 98, which lays down that “measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements”. At the same time, the Committee recalls the principles mentioned in paragraphs 844 and 845 of the Digest relative to the voluntary nature of collective bargaining, according to which the voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of the principles of freedom of association [Digest of decisions and principles of the Freedom of Association Committee 1996, para. 844] and collective bargaining, if it is to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining [Digest, op. cit., para. 845]. The Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [see Digest, op. cit., para. 814]. At the same time, the Committee recalls that there is no duty to conclude an agreement.
5. 272. Furthermore, the Committee recalls that the Committee of Experts has reiterated on successive occasions the need for the Government to further promote collective bargaining in the country [see Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A) Convention No. 98, 2005, 2004, 2002, 2001 and 2000]. In these circumstances, the Committee encourages the Government to take increased measures, in consultation with the workers’ and employers’ organizations concerned, to promote collective bargaining in Cape Verde and to keep it informed of any new collective agreement concluded in either the public or private sectors.
6. 273. The Committee further observes that the new draft Labour Code is currently being discussed, and that the initial draft, which contains a chapter on collective bargaining, is being studied by the Council for Social Cooperation with the participation of the social partners. The Committee hopes that the new Labour Code will be discussed and approved in the near future, in consultation with all the social partners, and that it will allow the effective development of the right to bargain collectively. The Committee reminds the Government that it may benefit from the ILO’s technical assistance and requests it to keep it informed of developments in this regard.
7. 274. As regards the allegations that enterprises prefer to conclude services contracts in order to avoid the application of the Labour Code, the Committee notes that according to the Government, although this type of contract is regulated in Cape Verde, it has a different function from the labour contract and every time there exists a legal subordination relationship, there is a labour contract.
8. 275. With regard to the allegations presented on 26 July 2005 concerning violations by the Ministry of Health of sections 16, 17 and 18 (on allowances for work in the periphery and supplementary hours) of the agreement concluded between the Government and nurses’ unions, the Committee observes that the Government has not sent its observations in this regard and recalls that agreements should be binding on the parties [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 818]. The Committee requests the Government to carry out an investigation into the matter without delay and to inform it of the results.

The Committee's recommendations

1. 276. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the alleged failure to promote collective bargaining, the Committee encourages the Government to take increased measures, in consultation with the most representative workers’ and employers’ organizations, to promote collective bargaining in Cape Verde and to keep it informed of any new collective agreement concluded in either the public or private sectors.
   • (b) The Committee hopes that the new Labour Code will be discussed and approved in the near future, in consultation with all the social partners, and that it will allow the effective development of the right to bargain collectively. The Committee reminds the Government that it may benefit from the ILO’s technical assistance and requests it to keep it informed of developments in this regard.
   • (c) With regard to the allegations presented on 26 July 2005 concerning violation by the Ministry of Health of sections 16, 17 and 18 (on allowances for work in the periphery and supplementary hours of the agreement concluded between the Government and nurses’ unions, the Committee observes that the Government has not sent its observations in this regard and recalls that agreements should be binding on the parties, and requests the Government to carry out an investigation into the matter without delay and to inform it of the results.