Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

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.