Rapport définitif - Rapport No. 349, Mars 2008

1. 546. This complaint is contained in a communication dated 14 December 2006 from the National Union of Workers of Cape Verde – Trade Union Confederation (UNTC–CS). The International Trade Union Confederation associated itself with the complaint in a communication dated 19 December 2006.
2. 547. The Government sent its observations in a communication dated 9 September 2007.
3. 548. Cape Verde has ratified the 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 complainants’ allegations

1. 549. In its communication dated 14 December 2006, the UNTC–CS alleges that the Government had recourse to civil requisition during a 48-hour strike called by the Transport, Communications and Civil Service Workers’ Union on 13 December 2006 at the National Institute of Meteorology and Geophysics concerning pay.
2. 550. According to the complainant organization, the Government, alleging a lack of agreement between the parties in respect of the minimum services to be performed during the strike, ordered that the strikers be requisitioned (issuing a back-to-work order), thus preventing the strike from being held.
3. 551. The complainant organization indicates that the Government systematically requisitions strikers to prevent them from exercising the right to strike, a matter that has been previously examined by the Committee.

B. The Government’s reply

1. 552. In its communication of 9 September 2007, the Government indicates that Legislative Decree No. 170/91 of 27 November 1991 sets forth the right to freedom of association, and that the right to strike is established in Legislative Decrees Nos 76/90 and 77/90 of 10 September 1990.
2. 553. The Government adds that it does not interfere, either directly or indirectly, in negotiations and discussions between employers and workers. However, according to the Government, the National Institute of Meteorology and Geophysics provides the information necessary for air traffic control. According to the Government, the safety of air traffic depends on the quality, timeliness and quantity of information supplied by the services of the National Institute of Meteorology and Geophysics.
3. 554. The Government indicates that, in the framework of the announced strike, the Government was not given any guarantees of compliance with article 12 of Legislative Decree No. 76/90, which stipulates the need to establish appropriate minimum services where respect for more imperative rights must be ensured: in this particular case, the need to maintain and not to reduce minimum levels of international air safety.

C. The Committee’s conclusions

1. 555. 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 at the National Institute of Meteorology and Geophysics, which resulted in the strike being prohibited; and (2) the systematic use by the Government of civil requisition during strike proceedings, which is equivalent to prohibiting them.
2. 556. The Committee notes the Government’s reply, which states that the strikers were requisitioned because they were not providing the minimum services established in article 12 of Legislative Decree No. 76/90 concerning strikes, such services being necessary as the National Institute of Meteorology and Geophysics is responsible for supplying the information necessary for the safe provision of national and international air traffic control.
3. 557. The Committee observes that article 12 provides that: (1) during strikes workers are required to provide the services necessary for the safety and maintenance of teams and systems so that once the strike is over activities can be resumed as usual; (2) 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; (3) for the purposes of the previous clause, enterprises or establishments set up to meet imperative social needs are considered to be those in the following sectors: (a) post and telecommunications; (b) health services; (c) funeral services; (d) water supply and sanitation; (e) power and fuel supply; (f) firemen; (g) transportation, ports and airports; (h) loading and unloading of animals and perishable foodstuffs; (i) banking and credit institutions. The article also provides that it is the responsibility of the employing entity to determine the minimum services, following consultations with the workers’ representatives, and if this is not done, the Government may have recourse to civil requisition.
4. 558. The Committee observes that it has already given recommendations in the past about similar allegations in a case relating to Cape Verde [see 320th Report, Case No. 2044]. In this regard, the Committee reiterates 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 edition, 2006, para. 606]. Given that the services provided by the National Institute of Meteorology and Geophysics are essential for air traffic control to be carried out safely, the Committee considers this to be an institution in which minimum services can be established when workers have decided to call a strike.
5. 559. The Committee considers, however, that these minimum services should not be determined solely by the employer, but that the determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers’ and workers’ organizations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipating possible impressions in the trade union organizations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services. Moreover, the Committee considers that any difference of opinion should be settled by an independent body and not by the Government [see Digest, op. cit., paras 612 and 613]. The Committee asks that the Government take the necessary measures to amend Legislative Decree No. 76/90 in accordance with these stated principles 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 be settled by an independent body.
6. 560. As to the allegations concerning civil requisition being used systematically by the Government to prevent workers taking strike action, the Committee observes that the Government has not responded to these allegations. The Committee requests the Government to guarantee that civil requisition is only used in cases where the minimum services established in accordance with the principles stated in the above paragraphs are not respected.
7. 561. The Committee calls the attention of the Committee of Experts to the legislative aspects of this case.