Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 291, Novembre 1993

1. 358. On 27 May 1993, the National Union of Workers of Cape Verde - Trade Union Federation (UNTC-CS) submitted a complaint to the Committee on Freedom of Association alleging violations of trade union rights against the Government of Cape Verde. It sent additional information in a communication dated 1 July 1993.
2. 359. The Government submitted its observations in a communication dated 20 July 1993.
3. 360. Cape Verde has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87); it has, however, ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant organization's allegations

1. 361. In its communications of 27 May and 1 July 1993, the National Union of Workers of Cape Verde - Trade Union Federation (UNTC-CS) alleges the Government's interference in its operations, which constitutes a violation of freedom of association and the exercise of trade union rights.
2. 362. The complainant organization alleges more specifically that under the new Legislative Decree No. 170/91 of 27 November 1991 on trade unions, existing organizations are required to undergo a registration procedure making it difficult for them to obtain legal personality and that this procedure is a violation of the standards established by the ILO. As it was set up in 1978, the UNTC-CS believes that it should be able to obtain legal personality without having to submit to the new procedure under Legislative Decree No. 170/91 which, according to this organization, only applies to recently established organizations. After the authorities had refused to take its point of view into account and in order to assert its rights and obligations, the complainant organization was forced to submit to the provisions of Legislative Decree No. 170/91 and to submit a request for registration in accordance with this legislation. It points out that, as a result of this procedure, its internal rules were once again officially published in the Official Gazette of 12 May 1992.
3. 363. The complainant organization states that the Government interpreted its decision to abide by Legislative Decree No. 170/91 as a dissolution of the trade union federation followed by the setting up of a new one with the same name. The Government obliged the UNTC-CS to fulfil the same conditions required of a trade union organization set up for the first time, and demanded that it delete any mention of the decisions taken by the IInd Congress from the documents submitted to obtain the registration of its internal rules and to refer henceforth to the "Constitutive Congress", which the UNTC-CS refused to do. The Federation is of the opinion that the Government's interpretation and application of the provisions of Legislative Decree No. 170/91 constitute an interference in its internal affairs.
4. 364. The UNTC-CS then explains that the Government still abides by this interpretation. In 1993, the authorities recognized the internal rules of a new trade union federation called the Cape Verdean Confederation of Free Trade Unions (CCSL) by publishing them in the Official Gazette. Article 55.4 of these internal rules stipulates that "the CCSL shall be considered as one of the owners of all the goods and property belonging to the dissolved UNTC-CS, which is governed by Legislative Decree No. 50/80 of 12 July 1980". The complainant organization explains that section 41 of Legislative Decree No. 170/91 repeals Legislative Decree No. 50/80 of 12 July 1980, which had granted legal personality to the UNTC-CS. As this provision had been interpreted by the Government to mean that the UNTC-CS had simply ceased to exist, the CCSL mentioned it in its internal rules.
5. 365. In this respect, the complainant organization states that judicial proceedings are under way against a number of regional officials in the island of Santiago for illegally occupying part of the UNTC-CS's social centre in Praia (First of May Centre). The officials in question set up the CCSL. In 1991, the court ordered the eviction of the occupiers and, whilst examining the substance of the case, seals had been placed on this part of the social centre. According to the complainant organization, the Government, by accepting the publication of article 55.4 of the CCSL's internal rules and by thus taking the side of the latter, failed to fulfil its obligations because the matter was still pending before the judicial authorities.
6. 366. The UNTC-CS alleges that the Government's actions and the situation that it had created were designed to destabilize it, to undermine its representativity throughout the country and to damage its interests - as well as those of its members.
7. 367. The complainant organization also mentions other incidents which it believes bears out its standpoint. It mentions that in April 1993 the Secretary of State for Agriculture invited only the CCSL to take part in talks on the claims of workers in the Justino Lopes enterprise, whilst only 22 out of a total of 190 workers employed by this enterprise belong to the CCSL. By so doing, the Government chooses to overlook the Trade Union of Industry, Services, Commerce, Agriculture and Fishing which is affiliated with the UNTC-CS; furthermore, 122 workers out of a total of 190 workers employed in this enterprise belong to the UNTC-CS, constituting an absolute majority.
8. 368. It also states that on 5 May 1993, the Director-General of the CTT (post and telecommunications) decided not to recognize the election of a trade union delegate who had been elected in accordance with the provisions of the Act on trade unions. Furthermore, the delegate in question had been transferred to another service without receiving prior notice. The UNTC-CS considers that the election of a trade union delegate is purely a matter for a trade union and that the employer has absolutely no right to interfere.
9. 369. Furthermore, in May 1993, the management of the Enapor enterprise decided unilaterally to hand over half the trade union dues to the CCSL although, according to the UNTC-CS, all the workers are members of the SIMETEC trade union which is one of its affiliates.

B. The Government's reply

1. 370. In its communication of 20 July 1993, the Government states first of all that the complaint submitted by the UNTC-CS is in line with this organization's overall policy of opposition to the democratic Government, with the aim of presenting the image of an authoritarian government undermining trade union rights.
2. 371. The Government then gives the background against which the accusations made by the UNTC-CS must be considered. In 1975, under the one-party system, the Government had issued Legislative Decree No. 41/75 which granted legal personality to the trade union action group and thus transformed it into the organizing committee of trade unions in Cape Verde; subsequently, this became the only trade union organization in the country. In 1980, still under a one-party system, Legislative Decree No. 50/80 of 12 July recognized the UNTC-CS, set up on the initiative of the above-mentioned organizing Committee, as the sole trade union organization of all workers in Cape Verde. It is thus evident that the UNTC-CS was set up and guided by the party in power, whose officials and leaders ran the federation. This trade union structure existed up to 1991 when, following the emergence of a democratic and pluralist regime, Legislative Decree No. 170/91 authorized - by repealing Legislative Decree No. 50/80 - the free organization of trade unions. The Government explains that, in its opinion, this was the only path to take to put an end to a single trade union system obliging all workers to belong to the UNTC-CS and to guarantee workers freedom of choice in matters concerning the defence of their interests.
3. 372. As concerns the allegation that Legislative Decree No. 170/91 provides for a registration procedure making it difficult to obtain legal personality, the Government states that this is not a true account of the situation; this is clearly shown by the fact that the UNTC-CS, which kept its former name, was the first trade union federation to obtain legal personality under the new legislative decree which, furthermore, does not lay down any time limits in this respect. The only conditions required for registration are the holding of a constitutive assembly and the presentation of a copy of the minutes of this meeting, the list of those present and the internal rules. Recognition through registration is granted after a mere request accompanied by the above-mentioned documents. The Minister of Labour cannot refuse registration unless the organization has the same name as an association that exists already or a name that might be mistaken for a name already on the register. The legislative decree also stipulates that the courts and not the administrative authorities determine what is and is not lawful.
4. 373. The Government also explains that the UNTC-CS was obliged to bring its organization in line with the democratic principles contained in the new legislation. Discussions were held with officials from the UNTC-CS on the mort logical and appropriate procedure to ensure this, which was then adopted by the Government. The UNTC-CS was informed that, as a federation, it had to group at least two recognized first-level unions before being recognized itself.
5. 374. As regards the allegation that the Government authorized the registration of the CCSL, whose internal rules stipulate that it is one of the owners of all the goods and property of the former UNTC-CS, the Government states that this is devoid of any truth; furthermore, the allegation concerns the control of the legality of trade union regulations - which is not a matter for the Government but for the judiciary. The Government adds, for information purposes, that the CCSL was set up by break-away officials of the UNTC-CS which was responsible for the running of the First of May Centre and that the UNTC-CS has initiated proceedings on the subject of this Centre, which are still pending before the courts.
6. 375. As regards talks on the claims of workers from the Justino Lopes enterprise, the Government states that the Secretary of State for Agriculture only invited the CCSL to participate because it was the confederation itself which had requested these discussions. Furthermore, no other trade union confederation was ever refused the right to take part in these discussions.
7. 376. As regards the decision of the Director-General of the CTT not to recognize the election of a trade union delegate, the Government points out that under Legislative Decree No. 170/91 each trade union section is entitled to elect a maximum number of three delegates. The SITHUR, affiliated to the UNTC-CS, had elected five delegates, contrary to the provisions contained in section 27 of the legislative decree. Given that the trade union delegates enjoy a number of prerogatives and facilities which increase the work of the enterprise, the director of the CTT informed the SITHUR, as well as the General Directorate of Labour, that it was impossible to recognize the elections which violated the legislation in force and that the situation should be sorted out.
8. 377. As regards the transfer of a delegate elected from SITHUR to another service, the Government states that the person in question held a managerial post and that it was both legal and normal that his services should be terminated when the competent bodies considered it necessary. This was not a matter of a transfer of a trade union delegate since the person concerned was appointed to another post in the same building and at the same workplace. According to the director of the enterprise, strong reasons had prompted this decision.
9. 378. Finally, concerning the allegation that the management of the Enapor enterprise had unilaterally decided to hand over half of the trade union dues to the CCSL, although all the workers belong to the SIMETEC trade union, affiliated to the UNTC-CS, the Government points out that the allegation is unfounded. First and foremost, the documents that SIMETEC sent to Enapor on 2 February 1993 claim that 149 workers out of a total of more than 300 workers employed at the enterprise belong to it. For its part, the STCT, affiliated to the CCSL, claims that 125 workers in the enterprise belong to its organization. Given the disparity between these figures, the management of the enterprise asked each worker to state to which organizations their trade union dues should be paid. On the basis of these statements, which seem credible, the management decided to share the dues between the two trade unions.

C. The Committee's conclusions

1. 379. The Committee notes that the allegations in this case refer to: the difficulties created for the National Union of Workers of Cape Verde - Trade Union Federation (UNTC-CS) by demanding that it undergo the registration procedure; the Government's measures of favouritism to try and undermine the complainant organization; the subsequent use made of the property belonging to the UNTC-CS and a series of measures taken by some employers which discriminate against the UNTC-CS and its enterprise unions.
2. 380. As regards the background to the facts upon which the allegations in this case are based, the Committee is led to understand that until the advent of a democratic and pluralist political system and the adoption, in 1991, of Legislative Decree No. 170/91 of 27 November 1991 ushering in trade union pluralism and the independence of trade unions vis-à-vis state bodies, there was a single party political system in Cape Verde and a single trade union system; and that within this system there was only one organization, "the National Union of Workers of Cape Verde - Trade Union Federation", which was set up in 1978 and recognized under Legislative Decree No. 50/80 of 12 July 1980 as the sole federation of workers in Cape Verde.
3. 381. The Committee notes that the Government felt it necessary, in order to put an end to the single trade union system imposed by the legislation and to guarantee all workers the right to set up and join trade union organizations of their own choosing, to repeal Legislative Decree No. 50/80 by Legislative Decree No. 170/91. For its part, the complainant organization considers that as it has existed since its first constitutive assembly in 1978, it should have been able to retain its legal personality without having to submit to the new procedure established by Legislative Decree No. 170/91.
4. 382. The Committee nevertheless notes that, after the authorities had refused to accept this point of view and in order to assert its rights, the complainant organization complied with the provisions contained in Legislative Decree No. 170/91 and submitted a request for registration to the governmental Labour Department. The documents provided by the complainant organization show that, initially, this Department refused to accept that the minutes of the IInd Congress of the UNTC-CS, held in February 1992, were equivalent to the minutes of the constitutive assembly required by section 5.2 of Legislative Decree No. 170/91, but that it finally decided to register the organization on the basis of this document, pointing out that "this matter is on the borderline between the appreciation of the formal aspects of the procedure and the control of its legality - which is up to the courts to determine and not the governmental department". The internal rules of the complainant organization were then published in the Official Gazette of 12 May 1992.
5. 383. The Government notes furthermore that, in order to register an organization and obtain legal personality, Legislative Decree No. 170/91 merely stipulates that the internal rules, the minutes of the constitutive assembly and its list of attendance should be deposited, and that the competent authority does not have discretionary power to refuse registration. The Committee is therefore of the opinion that the new registration procedure is not in itself contrary to the principles of freedom of association.
6. 384. As regards the allegation that the Government wanted to undermine the interests of the complainant organization by authorizing the registration and publication of the internal rules of the Cape Verdean Confederation of Free Trade Unions (CCSL) - article 55.4 of which stipulates that "the CCSL shall be considered to be one of the owners of all the goods and property belonging to the dissolved UNTC-CS, regulated by Legislative Decree No. 50/80 of 12 July 1980" - the Committee notes the Government's reply that this concerns the control of the legality of trade union internal rules and that, therefore, it is outside the scope of its responsibility and a matter for the judiciary.
7. 385. The Committee notes first of all that section 41 of Legislative Decree No. 170/91 repeals Legislative Decree No. 50/80 of 12 July 1980. Under sections 1 and 2 of this Decree, the UNTC-CS had been recognized as the sole federation of all workers in Cape Verde and had obtained legal personality. The Committee notes that the process of democratization in the country led to a situation where trade union pluralism is possible.
8. 386. The Committee also notes that the internal rules of the UNTC-CS, published on 12 May 1992, stipulate under article 60 that "the UNTC-CS, restructured and brought in line, under its internal rules, with the new situation, will remain owner of all the property and assets of the UNTC-CS, set up and recognized under Legislative Decree No. 80/50 of 12 July 1980, and shall assume all the rights and obligations of this organization". The Committee therefore notes an incompatibility between this article and article 55.4 of the CCSL's internal rules, published on 26 February 1993, in which the rival confederation considers that it is one of the owners of the assets of the "dissolved UNTC-CS". Consequently, it appears to the Committee that no settlement has yet been reached as to the issue of the goods previously belonging to the former UNTC-CS. Furthermore, it notes that judicial proceedings concerning part of the First of May Centre in Praia are still pending before the courts.
9. 387. The Committee has stressed the importance that it attaches to the principle according to which, within an ongoing process of democratization, the devolution of trade union assets and redistribution of trade union property should set out to ensure that all the trade unions are guaranteed on an equal footing the possibility of effectively exercising their activities in a fully independent manner. (See, for example, 286th Report of the Committee, Case No. 1623 (Bulgaria), para. 511, and 287th Report, Case No. 1637 (Togo), para. 80.)
10. 388. The Committee notes that, since this complaint was submitted, a Council for Social Dialogue was set up in June 1993 under Legislative Decree No. 35/93. Under section 4 of this text, the Council is made up, amongst others, of representatives of the State, the UNTC-CS and the CCSL. Section 7(a) stipulates that "the Council will try to reach a consensus on any issue that the parties wish to discuss and which concerns them by means of - to the extent possible - dialogue and an attempt to find balanced solutions".
11. 389. In the light of the democratization process under way in Cape Verde and the new trade union situation, the Committee considers that the Government and all the trade union organizations should try to reach, as soon as possible, a final agreement determining the allocation of the assets of the former UNTC-CS so that all the trade union organizations in the country might exercise their activities on an equal footing. In this respect, the Committee considers that the new Council for Social Dialogue could provide a particularly appropriate framework for dialogue and negotiations. It requests the Government to keep it informed of any developments in this area. It also asks it to communicate a copy of the final judgement in the judicial proceedings concerning the First of May Centre in Praia, as soon as it has been handed down.
12. 390. Concerning the allegation that the Secretary of State for Agriculture only invited the CCSL to take part in the talks on the claims of workers in the Justino Lopes enterprise whilst, according to the trade union organization, the enterprise union belonging to it has 122 members out of a total of 190 workers, the Committee notes that the Government mentions that only the CCSL had requested talks and that no other trade union confederation had been refused the right to participate in these talks. In these circumstances, the Committee, whilst recalling that employers, including governmental authorities acting in the capacity of employers, should recognize for collective bargaining purposes the organizations representative of the workers employed by them, requests the Government to ensure that all the most representative parties concerned should be able to participate in talks to settle the dispute.
13. 391. As concerns the trade union elections within the CTT, the Committee notes that the complainant organization alleges that the CTT management refused to recognize the election of an elected delegate who was subsequently transferred as a result of anti-trade unionism. For its part, the Government states that refusal to acknowledge the trade union elections was prompted by the fact that they failed to conform with Legislative Decree No. 170/91 and that the person in question had a management post and was assigned to another job in the same building at the same workplace. The Committee, noting that this allegation is formulated in a vague way, can only recall the principle that freedom of association implies the right of workers and employers to elect their representatives in full freedom.
14. 392. As regards the decision of the management of the Enapor enterprise to share the trade union dues between the UNTC-CS and the CCSL whereas, according to the UNTC-CS, all the workers belong to SIMETEC - one of its affiliated members - the Committee notes the Government's detailed reply that the decision to share the contributions had been taken on the basis of statements made by the workers themselves from which it emerged that both trade unions had almost an equal number of members. The Committee is of the opinion that the solution reached by the Enapor management to allocate the trade union dues does not constitute either a violation of the principle whereby trade union organizations should have the right to organize freely their administration or an act of interference on the part of the employer into the trade union organizations representing its employees. As it believes that the fair distribution of dues - based on statements from each trade union member - guarantees all trade unions within the enterprise the right to exercise their activities on an equal footing, the Committee considers that this aspect of the case does not call for further examination.
15. 393. Generally speaking, the Committee wishes to draw the Government's attention to the fact that, by according favourable or unfavourable treatment to a given organization as compared with another, the Government may be able to influence the choice of workers as to the organization which they intend to join. In addition, a government which deliberately acts in this manner violates the principle of freedom of association according to which the public authorities shall refrain from any interference which would restrict trade union rights or impede their lawful exercise; more indirectly, it would also violate the principle that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for by freedom of association. It would seem desirable that, if the Government wishes to make certain facilities available to trade union organizations, these organizations should enjoy equal treatment in this respect (see Digest, op. cit., para. 254). The Committee requests the Government to refrain from any measures which might influence the workers in the choice of trade union organizations which they intend to join.