Labour Relations (Public Service) Convention, 1978 (No. 151) - Sao Tome and Principe (Ratification: 2005)

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

Articles 4 and 5 of the Convention. Adequate protection against acts of anti-union discrimination and interference. In its previous comment, the Committee requested the Government to take the necessary measures for the adoption of legislative provisions imposing sufficiently effective and dissuasive sanctions for acts of anti-union discrimination and acts of interference against trade union organizations of public employees. The Committee notes firstly that, under section 3(1)(a) of the Preamble to Act No. 6/2019 on the Labour Code: without prejudice to special legislative provisions, the provisions of the Labour Code relating to, inter alia, equality and non-discrimination are applied mutatis mutandis to the legal public employment relationship conferred on the public servant or the public administration official. The Committee also notes that: (i) the Government indicates that section 362(2) and (3) specify that any form of interference in trade union associations is prohibited; and (ii) under section 363 of the Code, any act or agreement is prohibited that: (a) makes the employment of a worker subject to their membership or non-membership of a trade union association or their withdrawal from an association of which they are a member; and (b) dismisses, transfers or otherwise prejudices a worker because of their exercise of rights relating to participation in collective representation organizations or membership of a trade union. The Committee also notes that the Code prohibits employers from engaging in any discrimination, direct or indirect, based on trade union membership (section 17), and from following discriminatory procedures in the treatment of workers because of workers’ trade union membership (section 101(2)(b)). With regard to the penalties for these acts, the Committee notes the Government’s indication that sections 534 and 539 of the Labour Code provide for applicable penalties in the area of anti-union discrimination and interference. The Committee notes in this regard that section 539 provides that: (i) bodies or organizations that violate the provisions of section 362(1) and (2) (acts of interference) and section 363 (anti-union discrimination) are punishable by a fine of up to 120 days (section 539(1)); and (ii) administrators, directors or managers and workers occupying managerial positions who are responsible for the acts referred to in the previous paragraph are liable to imprisonment of up to one year (section 539(2)). Observing that section 539, unlike other similar provisions of the Labour Code, does not clearly define the unit of measurement for calculating the fine incurred (expressed in days without any other indication), the Committee requests the Government to specify what this provision corresponds to in terms of a financial penalty. In addition, the Committee notes that section 534 does not impose any specific penalties for violations of section 17 and section 101(2)(b) of the Code. In view of the above,the Committee requests the Government to take the necessary measures to adopt legislative provisions imposing sufficiently effective and dissuasive sanctions for acts of anti-union discrimination and for acts of interference against trade union organizations of public employees.

Article 8. Settlement of collective disputes. In its previous comments, the Committee noted that section 11 of Act No. 4/92 on Strikes provides for compulsory arbitration but noted that the legislation does not establish any mechanism for mediation or conciliation in the event of a dispute between the parties. While noting that the Acts on trade unions and on strikes are henceforth part of Act No. 6/2019 issuing the Labour Code, under the Preamble of the Code, the Committee requests the Government to provide detailed information on the settlement of collective disputes in the public administration, as well as on the mediation mechanisms that are under the responsibility of the Directorate of the Public Administration.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

The Committee notes with regret that the Government’s report does not provide any response to the questions the Committee has raised in the comments it has been making for many years on the implementation of several essential provisions of the Convention.The Committee is, therefore, bound to reiterate them and urges the Government to take all the measures required on each of the following points.

Article 4 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee previously noted the Government’s indication that there is no legislation establishing penalties for acts of anti-union discrimination.The Committee once again requests the Government to take the necessary measures for the adoption of legislative provisions imposing sufficiently effective and dissuasive sanctions for acts of anti-union discrimination.

Article 5. Adequate protection against acts of interference. The Committee previously noted that the legislation does not establish sanctions for acts of interference.The Committee once again requests the Government to take the necessary measures to adopt legal provisions imposing sufficiently effective and dissuasive sanctions for acts of interference against trade union organizations of public employees.

Article 8. Settlement of collective disputes. The Committee previously noted that section 11 of the Act on Strikes provides for compulsory arbitration, but that the legislation does not establish any mechanism for mediation or conciliation in the event of a dispute between the parties. The Committee noted the Government’s indication that matters relating to the mediation of disputes in the public administration fall within the remit of the Directorate of the Public Administration and not the Labour Directorate.The Committee once again requests the Government to provide additional information on the settlement of collective disputes in the public administration, and in particular to indicate whether the Act referred to above applies to employees of the public administration, and to provide detailed information on the mediation mechanisms that are under the responsibility of the Directorate of the Public Administration.

Recalling that it may request the technical assistance of the Office, the Committee trusts that the Government will adopt the necessary measures in the near future.

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

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes with regret that the Government’s report does not provide any response to the questions the Committee has raised in the comments it has been making for many years on the implementation of several essential provisions of the Convention. The Committee is, therefore, bound to reiterate them and urges the Government to take all the measures required on each of the following points.

Article 4 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee previously noted the Government’s indication that there is no legislation establishing penalties for acts of anti-union discrimination. The Committee once again requests the Government to take the necessary measures for the adoption of legislative provisions imposing sufficiently effective and dissuasive sanctions for acts of anti-union discrimination.

Article 5. Adequate protection against acts of interference. The Committee previously noted that the legislation does not establish sanctions for acts of interference. The Committee once again requests the Government to take the necessary measures to adopt legal provisions imposing sufficiently effective and dissuasive sanctions for acts of interference against trade union organizations of public employees.

Article 8. Settlement of collective disputes. The Committee previously noted that section 11 of the Act on Strikes provides for compulsory arbitration, but that the legislation does not establish any mechanism for mediation or conciliation in the event of a dispute between the parties. The Committee noted the Government’s indication that matters relating to the mediation of disputes in the public administration fall within the remit of the Directorate of the Public Administration and not the Labour Directorate. The Committee once again requests the Government to provide additional information on the settlement of collective disputes in the public administration, and in particular to indicate whether the Act referred to above applies to employees of the public administration, and to provide detailed information on the mediation mechanisms that are under the responsibility of the Directorate of the Public Administration.

Recalling that it may request the technical assistance of the Office, the Committee trusts that the Government will adopt the necessary measures in the near future.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee regrets that the Government’s report does not contain information on several of the matters raised in its previous comments, and particularly in relation to Articles 4 and 5 of the Convention.

Article 4 of the Convention. Protection against acts of anti-union discrimination. The Committee noted previously the Government’s indication that there is no legislation establishing penalties for acts of anti-union discrimination. The Committee requests the Government to take the necessary measures for the adoption of legal provisions imposing sufficiently effective and dissuasive sanctions for acts of anti-union discrimination.

Article 5. Protection against acts of interference. The Committee observed previously that the legislation does not establish sanctions for acts of interference. The Committee requests the Government to take the necessary measures for the adoption of legal provisions imposing sufficiently effective and dissuasive sanctions for acts of interference against trade union organizations of public employees.

Article 7. Machinery for participation in the determination of terms and conditions of employment. The Committee notes the Government’s indication in its report that matters relating to collective bargaining in the public administration sector are the responsibility of the Directorate of the Public Administration and that the role of the Labour Directorate of the Ministry of Employment and Social Affairs is confined to the private sector. The Committee is examining the question of the application of collective bargaining in the public service in the framework of the Collective Bargaining Convention, 1981 (No. 154).

Article 8. Settlement of collective disputes. The Committee noted previously that section 11 of the Act on strikes refers to compulsory arbitration, but that the legislation does not make reference to any procedures for mediation or conciliation in the event of a dispute between the parties. The Committee notes the Government’s indication that matters relating to the mediation of disputes in the public administration sector are the responsibility of the Directorate of the Public Administration and not the Labour Directorate. The Committee requests the Government to provide additional information on the settlement of collective disputes in the public administration, and particularly to indicate whether the Act referred to above applies to employees of the public administration, and to provide detailed information on the mediation machinery under the responsibility of the Directorate of the Public Administration.

The Committee trusts that the Government will take the necessary measures in the near future.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes that the Government’s report has not yet been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous comments.

Repetition

Article 4 of the Convention. Protection against acts of anti-union discrimination. The Committee notes that section 6 of Act No. 5/92 states that any agreement, provision or act aimed at making an employee or his conditions of work subject to being or becoming a member of a trade union or to renouncing membership thereof shall be null and void. The Committee also notes that, with regard to the dismissal of trade union stewards, section 12(4) of the aforementioned Act states that the dismissal of a trade union representative can only be based on the grounds of a justified disciplinary measure or the definitive closure of the enterprise. Finally, the Committee notes that, in connection with the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Government indicated that there is no legislation that lays down penalties for acts of anti-union discrimination. The Committee therefore requests the Government to take the necessary steps to establish penalties in law that constitute an adequate deterrent against acts of anti-union discrimination.

Article 5 of the Convention. Protection against acts of interference. The Committee notes that sections 3 and 4 of Act No. 5/92 provide that: (1) trade union organizations are independent of the State, political parties and religious institutions; any interference from any of the latter in the organization, management or finances of trade unions shall be prohibited; (2) employers and their organizations, and also any other non-trade union bodies, shall not promote the formation of trade union organizations or in any shape or form maintain or support their organization or management; and (3) the holding of any position within the executive body of a trade union shall be incompatible with the occupation of any managerial post in a political party or religious institution, and also with the holding of any office in the Government, Supreme Court, Office of the Prosecutor-General or any other post having a specific legislative or judicial function. The Committee notes that the legislation does not lay down any penalties in this sphere. The Committee therefore requests the Government to take the necessary steps to establish penalties in law that constitute an adequate deterrent against acts of interference by employers against trade unions. The Committee requests the Government to indicate whether legal provisions exist which protect trade union members against acts of discrimination based on the performance of legitimate trade union activities.

Article 7 of the Convention. Methods to allow participation in the determination of conditions of employment. The Committee notes that neither Act No. 5/92 nor Act No. 5/97 refers to collective bargaining and, consequently, neither Act mentions any appropriate measures to encourage and promote such bargaining between the public authorities concerned and public employees’ organizations regarding conditions of employment. Nevertheless, the Committee notes the Government’s statement, with respect to the application of the Collective Bargaining Convention, 1981 (No. 154), that the Labour Directorate of the Ministry of Labour might act as an intermediary between the parties to collective bargaining, including in order to ensure the effectiveness of the agreement. The Committee requests the Government to indicate whether public servants enjoy the right to collective bargaining and also to supply further information on the role of the Labour Directorate in the collective bargaining process and, if public servants do not enjoy the right to collective bargaining, to clarify whether any other method exists, such as consultation, that enables the representatives of public employees to participate in the determination of their conditions of employment.

The Committee also notes the Government’s statement concerning the adoption of a new Constitution, a copy of which will be sent to the Office. The Committee wishes to emphasize that, in its comment relating to the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), it has noted for several years the bill concerning the legal framework of collective bargaining which appears to be in conformity with the provisions of the Convention. According to the Government, the bill is still being examined by the Assembly of the Republic. In view of the length of time that has elapsed, the Committee expresses the hope that the aforementioned bill will be adopted in the very near future and requests the Government to indicate whether the bill also applies to public officials and employees. The Committee also requests the Government to indicate the progress of the legislative procedures relating to the adoption of the bill and to send a copy of the definitive text thereof once it has been adopted.

Article 8. Settlement of disputes. The Committee notes that section 11 of the Act concerning strikes mentions compulsory arbitration but observes that the legislation does not mention any procedures for mediation or conciliation in the event of a dispute between the parties. The Committee requests the Government to supply further information and in particular to indicate whether the Act concerning strikes applies to employees in public administration, and also the measures contemplated for inclusion in the legislation of mediation or conciliation procedures or any other mechanisms which have the confidence of the parties in the event of a dispute.

Application in practice. The Committee notes the information supplied in connection with the application of the Collective Bargaining Convention, 1981 (No. 154), to the effect that no collective agreements currently exist in the country owing to geographical factors. The Committee understands that this situation also applies to the public administration and requests the Government to promote collective bargaining or other procedures to allow workers’ organizations to participate in the determination of their conditions of employment.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s indications in its first report that: (1) Trade Union Act No. 5/92 of 28 May 1992 (hereinafter Act No. 5/92) applies generally to all employees except those in the armed forces and the police; (2) officials in the public administration are also governed by Act No. 5/97 of 1 December 1997 concerning the public service regulations (hereinafter Act No. 5/97); and (3) the aforementioned regulations cover the armed forces and security forces with adaptations according to their specific sets of regulations and also cover judges and magistrates under the same conditions (section 2 of Act No. 5/97).

Article 4 of the Convention. Protection against acts of anti-union discrimination. The Committee notes that section 6 of Act No. 5/92 states that any agreement, provision or act aimed at making an employee or his conditions of work subject to being or becoming a member of a trade union or to renouncing membership thereof shall be null and void. The Committee also notes that, with regard to the dismissal of trade union stewards, section 12(4) of the aforementioned Act states that the dismissal of a trade union representative can only be based on the grounds of a justified disciplinary measure or the definitive closure of the enterprise. Finally, the Committee notes that, in connection with the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Government indicated that there is no legislation that lays down penalties for acts of anti-union discrimination. The Committee therefore requests the Government to take the necessary steps to establish penalties in law that constitute an adequate deterrent against acts of anti-union discrimination.

Article 5 of the Convention. Protection against acts of interference. The Committee notes that sections 3 and 4 of Act No. 5/92 provide that: (1) trade union organizations are independent of the State, political parties and religious institutions; any interference from any of the latter in the organization, management or finances of trade unions shall be prohibited; (2) employers and their organizations, and also any other non-trade union bodies, shall not promote the formation of trade union organizations or in any shape or form maintain or support their organization or management; and (3) the holding of any position within the executive body of a trade union shall be incompatible with the occupation of any managerial post in a political party or religious institution, and also with the holding of any office in the Government, Supreme Court, Office of the Prosecutor-General or any other post having a specific legislative or judicial function. The Committee notes that the legislation does not lay down any penalties in this sphere. The Committee therefore requests the Government to take the necessary steps to establish penalties in law that constitute an adequate deterrent against acts of interference by employers against trade unions. The Committee requests the Government to indicate whether legal provisions exist which protect trade union members against acts of discrimination based on the performance of legitimate trade union activities.

Article 6. Facilities. The Committee notes that section 12(2) of Act No. 5/92 provides that trade union representatives shall be afforded, for the exercise of the powers conferred on them by trade union rules, the following rights and facilities: (a) the use of adequate premises in the enterprise for the performance of their activity; (b) freedom of movement in work premises occupied by workers belonging to the union; (c) to display in appropriate locations in the enterprise the documents relating to the existence and activities of the trade union and the social and occupational interests of the workers; and (d) to convene, conduct and provide information on trade union meetings.

Article 7 of the Convention. Methods to allow participation in the determination of conditions of employment. The Committee notes that neither Act No. 5/92 nor Act No. 5/97 refers to collective bargaining and, consequently, neither Act mentions any appropriate measures to encourage and promote such bargaining between the public authorities concerned and public employees’ organizations regarding conditions of employment. Nevertheless, the Committee notes the Government’s statement, with respect to the application of the Collective Bargaining Convention, 1981 (No. 154), that the Labour Directorate of the Ministry of Labour might act as an intermediary between the parties to collective bargaining, including in order to ensure the effectiveness of the agreement. The Committee requests the Government to indicate whether public servants enjoy the right to collective bargaining and also to supply further information on the role of the Labour Directorate in the collective bargaining process and, if public servants do not enjoy the right to collective bargaining, to clarify whether any other method exists, such as consultation, that enables the representatives of public employees to participate in the determination of their conditions of employment.

The Committee also notes the Government’s statement concerning the adoption of a new Constitution, a copy of which will be sent to the Office. The Committee wishes to emphasize that, in its comment relating to the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), it has noted for several years the bill concerning the legal framework of collective bargaining which appears to be in conformity with the provisions of the Convention. According to the Government, the bill is still being examined by the Assembly of the Republic. In view of the length of time that has elapsed, the Committee expresses the hope that the aforementioned bill will be adopted in the very near future and requests the Government to indicate whether the bill also applies to public officials and employees. The Committee also requests the Government to indicate the progress of the legislative procedures relating to the adoption of the bill and to send a copy of the definitive text thereof once it has been adopted.

Article 8. Settlement of disputes. The Committee notes that section 11 of the Act concerning strikes mentions compulsory arbitration but observes that the legislation does not mention any procedures for mediation or conciliation in the event of a dispute between the parties. The Committee requests the Government to supply further information and in particular to indicate whether the Act concerning strikes applies to employees in public administration, and also the measures contemplated for inclusion in the legislation of mediation or conciliation procedures or any other mechanisms which have the confidence of the parties in the event of a dispute.

Application in practice. The Committee notes the information supplied in connection with the application of the Collective Bargaining Convention, 1981 (No. 154), to the effect that no collective agreements currently exist in the country owing to geographical factors. The Committee understands that this situation also applies to the public administration and requests the Government to promote collective bargaining or other procedures to allow workers’ organizations to participate in the determination of their conditions of employment.