Solicitud directa (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

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.