Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

With reference to its previous comments, the Committee notes the information contained in the Government’s report received in October 2005 and the communication of the Cape Verde Confederation of Free Trade Unions (CCSL) forwarded by the Office to the Government in November 2004. In this communication, the CCSL indicates important changes made in the social security system for dependent workers by the adoption of Legislative Decree No. 5/2004 of 16 February 2004, which was promulgated by the Government without prior consultation with the social partners. The Committee notes that the revision of the social security system undertaken by the Government seems to have no impact on Legislative Decree No. 84/78 of 22 September 1978 establishing the compulsory insurance scheme for industrial accidents which has since been the subject of comments by the Committee.

Branch (g) (benefits for industrial accidents and occupational disease). Articles 3 and 4 of the Convention. In its previous comments, the Committee requested the Government to amend explicitly section 3(3) of Legislative Decree No. 84/78 of 22 September 1978 establishing the system of compulsory insurance against industrial accidents, which subjects equality of treatment of foreign workers working in Cape Verde to a condition of reciprocity, whereas Articles 3 and 4 of the Convention provide for an automatic system of reciprocity for States that have ratified the instrument. In reply, the Government promises that these amendments will be the subject of consultations with the social partners and be included in the current general revision process of labour legislation with the adoption of the new Labour Code.

The Committee notes this commitment by the Government and requests it to specify to what extent the amendment of Legislative Decree No. 84/78 concerns the general revision of labour legislation, given that the Labour Code currently in force does not cover matters pertaining to insurance against industrial accidents nor the social security of workers in general. As for the Government’s intention to consult the social partners, the Committee notes from the social partners’ comments included in the Government’s report that the National Union of Cape Verde Workers (UNTC–CS) and the Cape Verde Confederation of Free Trade Unions (CCSL) support the revision of section 3(3) of Legislative Decree No. 84/78 which is in accordance with the provisions of the Convention. The Committee requests the Government to indicate the employers’ and workers’ organizations which the Government intends to consult and in what time frame, given that it does not specify the employers’ and workers’ organizations to which it supplied copies of its report, in accordance with article 23, paragraph 2, of the ILO Constitution. Finally, the Committee recalls that in 1999 the Government indicated that internal discussions had reached total consensus on the need to amend Legislative Decree No. 84/78, but that no amendment has been made. The Committee is therefore bound to ask the Government once again to take the measures necessary, as soon as possible, to bring section 3(3) of Legislative Decree No. 84/78 into full conformity with the Convention.

Article 5. In its previous comments, the Committee asked the Government to incorporate in Legislative Decree No. 84/78 of 22 September 1978 a specific provision providing the granting of benefits for employment injuries when the persons concerned are resident abroad in order to give full effect to Article 5 (branch (g)) of the Convention. The Committee notes that according to section 7 of Legislative Decree No. 5/2004 of 16 February 2004, beneficiaries of compulsory social protection maintain their right to cash benefits when they transfer their residence abroad, subject to the provisions established by the law and the applicable international instruments. Since the compulsory social protection system does not include benefits for employment injury, which are covered by separate regulations (sections 17 and 18(3) of Legislative Decree No. 5/2004), the Committee trusts that the Government will not fail to apply the same principle of maintaining rights in the event of residence abroad also in regard to the granting of benefits for employment injury in law as well as in practice. With regard to the situation in law, the Committee considers that the application of article 11(4) of the Constitution of Cape Verde establishing the supremacy of international conventions over any national legislation requires that Legislative Decree No. 84/78 be brought specifically into conformity with Article 5 of the Convention in order to avoid any ambiguity in legislation and its practical application. Not having received from the Government the information requested on the internal regulations laying down procedures giving effect in practice to this constitutional principle in the light of Convention No. 118, the Committee also requests the Government to supply information showing the effective transfer by the National Social Security Institute or another relevant institute of the amounts of benefits for employment injury to beneficiaries residing abroad.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.