Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 384, Marzo 2018

1. 170. This complaint is contained in a communication dated 6 March 2017 from the National Union of Workers of Cape Verde – Trade Union Confederation (UNTC–CS).
2. 171. The Government sent its observations in a communication dated 3 August 2017.
3. 172. Cabo Verde has ratified 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. 173. In its communication dated 6 March 2017, the UNTC–CS alleges that the Government used civil requisitioning during a strike called by one of its affiliates, the Industry, Trade and Tourism Union (SICOTUR), on 30 and 31 December 2016, and 1 and 2 January 2017, in an electricity company, ELECTRA–NORT (hereafter the company), on the island of Sal.
2. 174. According to the complainant organization, the Government, alleging that the parties had failed to agree on the minimum services to be performed during the strike, ordered that the strikers be requisitioned. It indicates that the Government systematically requisitions strikers to prevent them from exercising the right to strike, a matter that has been examined by the Committee on two previous occasions (Cases Nos 2044 and 2534).
3. 175. The complainant organization specifies that the right to strike is enshrined both in the Constitution of the Republic (article 67) and the Labour Code (sections 112 ff.), that civil requisitioning is also covered by law (Legislative Decree No. 77/90 of 10 September 1990) and that, following complaints presented by the UNTC–CS to the Committee and the recommendations of the latter, an agreement was signed with the social partners to revise the Labour Code, including the section on the determination of minimum services. Thus, with the publication of Legislative Decree No. 1/2016 of 3 February 2016, section 123 of the Labour Code was amended as follows: the determination of minimum services is ensured by an independent tripartite commission made up of a workers’, an employers’ and a Government representative and of two other members designated by them by mutual agreement, without prejudice to the provisions of article 127.
4. 176. The complainant organization alleges that, in the case of the civil requisition in question, the Government, and not the independent tripartite commission, determined the minimum services, in violation of amended section 123 of the Labour Code. Nor was the law on civil requisitioning (Legislative Decree No. 77/90) respected, in that no ministerial decision ordering the requisition was published in the Official Journal.

B. The Government’s reply

1. 177. In its communication of 3 August 2017, the Government states that it does not systematically use civil requisitioning and that it acted strictly within the legal framework established in this regard.
2. 178. The Government indicates that, following the notice of a strike given by SICOTUR, a first tripartite conciliation and mediation meeting was held on 27 December 2016, in the presence of a delegate from the General Directorate of Labour (DGT) of the island of Sal, the chairman of the company’s board, the president of SICOTUR and a few company employees. As the trade union’s demands remained unmet, the parties were informed that the minimum services would have to be determined, and a meeting was scheduled for 28 December for this purpose. The parties again failing to agree on the matter, the Government indicated that another meeting was held on 29 December in order to form a tripartite commission, made up, in accordance with section 123, paragraph 2, of the Labour Code, of a workers’, an employers’ and a Government representative, and of two other members designated by mutual agreement, to determine the minimum services.
3. 179. According to the Government, this commission could not be set up, as the president of SICOTUR contested the legitimacy of the delegation from the DGT of the island of Sal, and of the DGT itself, to represent the Government, and opposed the establishment of the tripartite commission (the records of the meetings are attached to the Government’s communication). The Government adds that SICOTUR is against having the workers it represents provide minimum services and is seeking, like other trade unions, to exert pressure to have its demands met. According to the Government, this attitude is at odds with section 122, paragraph 2, of the Labour Code, which stipulates that, in enterprises or establishments set up to meet imperative social needs, during strikes workers are required to provide the minimum services necessary to meet those needs. According to the legislation in force, companies operating in the energy sector aim to meet basic needs; therefore, when those basic needs are compromised and the minimum services provided for in law are not performed, there is no choice but to use civil requisition, in accordance with section 127 of the Labour Code (which sets out that, in cases where minimum services are not maintained, the Government can order a civil requisition under the terms laid down in law).
4. 180. The Government points out that, according to section 2 of Legislative Decree No. 77/90, requisitioning is an exceptional measure that can only be adopted in urgent or extremely serious situations or when absolutely necessary to ensure the normal functioning of essential public services. Given this particular situation, the Government explains that it had to take a decision on a civil requisition and that it brought that decision to the attention of the parties concerned through the media, without it being necessary to publish an order, as the original reason no longer existed (the notice of a strike had been withdrawn).

C. The Committee’s conclusions

1. 181. The Committee observes that the allegations in the present case refer: (1) to the civil requisition, by the Government, of workers who had called a strike in an electricity company; and (2) the systematic use by the Government of civil requisition during strike proceedings.
2. 182. The Committee notes the Government’s reply, which states that the strikers were requisitioned, in the specific case of a strike in the electricity sector in December 2016, because the tripartite commission provided for under the Labour Code (amended section 123) could not be established and therefore could not determine the minimum services within an essential service.
3. 183. The Committee observes that it examined allegations on the requisition of workers during strikes in two previous cases concerning Cabo Verde (Cases Nos 2044 and 2534), one in the maritime sector and the other in the meteorological sector. In this regard, the Committee recalled that: “The establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance.” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 606]; it also recognized that a minimum service could be established. The Committee further recalls that what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population [see Digest, op. cit., para. 582].
4. 184. The Committee recalls that the provision of electricity can be considered an essential service and that minimum services can also be established when workers decide to strike.
5. 185. Nevertheless, in the cases previously examined by the Committee, it had requested the Government to take the necessary measures to amend the relevant legislation 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 is settled by an independent body. The Committee notes that, under section 123 of the Labour Code amended in 2016, in the case of a strike, the determination of minimum services is ensured by an independent tripartite commission made up of a workers’, an employers’ and a Government representative and of two other members designated by them by mutual agreement. The Committee notes that this amendment is without prejudice to the provisions of article 127, which provide that, in cases where the provisions on minimum services are not upheld, the Government can order a civil requisition.
6. 186. Highlighting the positive changes in the labour law, the Committee notes that, in this case, the parties did not reach an agreement, including on the establishment of an independent tripartite commission responsible for determining minimum services, and that, according to the Government, SICOTUR opposed the very establishment of the commission and the provision by its members of minimum services. The Committee notes that the system in place does not appear to provide for dispute resolution by an independent body when differences of opinion arise between the parties relating to the minimum services to be maintained during a strike. Noting that Cabo Verde received technical assistance from the Office in June 2017, the Committee requests the Government to provide further information on the tripartite commission established by the Labour Code, indicating whether implementing regulations are envisaged, and invites it to identify an independent body responsible for determining the minimum services to be maintained in essential public services in the event that the parties do not reach an agreement. The Committee recalls, as it has previously, that any difference of opinion in this respect should be settled by an independent body and not by the administrative authority [see Case No. 2534, 349th Report (2008), para. 559].
7. 187. The Committee trusts that, within the framework of the social dialogue mechanisms in force, the tripartite commission, newly established by the 2016 legislative revision, will fulfil its functions and enable, in the interest of the parties, a careful exchange of viewpoints on what, in a given situation, can be considered to be the minimum services that are strictly necessary and determine the number of workers needed to guarantee those services.