Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 320, Marzo 2000

Caso núm. 2044 (Cabo Verde) - Fecha de presentación de la queja:: 13-AGO-99 - Cerrado

Allegations: Requisitioning of workers during a strike

1. 430. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 13 August 1999. The National Union of Cape Verdean Workers - Trade Union Central Organization (UNTC-CS) supported the complaint in a communication dated 16 August 1999. The Government replied in a communication dated 29 September 1999.
2. 431. 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 complainant's allegations

1. 432. The International Confederation of Free Trade Unions (ICFTU) alleges in its communication of 13 August 1999 that the Government is constantly requisitioning workers, with the objective of plainly and simply prohibiting the right to strike in Cape Verde.
2. 433. In this respect the ICFTU recalls that both the Strike Act (Decree-Law No. 76/90 of 10 September 1990) and the so-called "Civil Requisition" Act (Decree-Law No. 77/90 of 10 September 1990) make provision for the possibility of the Government having recourse to civil requisition only in the event of the non-fulfilment of compulsory minimum services or in the event of the population being in extreme danger. In point of fact, not only did the ICFTU's affiliate in Cape Verde, the National Union of Cape Verdean Workers - Trade Union Central Organization (UNTC-CS), guarantee during the entire conciliation phase that minimum services would be assured in the event of strike action but also the services in question were effectively guaranteed in practice, so that there was no danger for the population as a result of strike action.
3. 434. The ICFTU denounces in particular the civil requisition of workers in the maritime sector in Cape Verde. On 27 July 1999, the Government of Cape Verde proceeded with the civil requisitioning of maritime workers as a reaction to a strike announced by the trade union SIMETEC, although the maritime services do not constitute part of the essential services where certain restrictions to the right to strike can be justified in specific circumstances. This being the case, in the conflict opposing the trade union SIMETEC to the national maritime enterprise CNN-ARCAVERDE as a result of non-compliance with the contractual provisions relating to the compensation of the workers affected by enterprise restructuring, the Government, by way of Order No. 34/1999 of 27 June 1999, began requisitioning workers barely five hours after they began strike action on 27 July 1999. According to the SIMETEC, this Order was passed in violation of Decree No. 77/1990 of 10 September 1990, which restricts civil requisition to cases relating to essential public needs or to serious and imminent danger for the population. According to the ICFTU, the operations of the CNN-ARCAVERDE cannot be likened to an essential service as there are other available alternatives in Cape Verde which has private maritime companies as well as an airline which would prevent there being any interruption in communications and transportation on the archipelago.
4. 435. It should be pointed out that the SIMETEC called off its strike notice on Saturday 7 August 1999 owing to a serious air crash that had occurred that same day in Cape Verde in which 18 people perished. This led to the Government ordering a period of national mourning and, in order to join this symbolic gesture, the trade union movement of Cape Verde immediately called off its strike notice. This, however, was to come into force once again following the expiry of the period of national mourning, that is on 10 or 11 August 1999. It goes without saying that the tragic accident was in no way linked to the strike movement.
5. 436. Notwithstanding the tragic circumstances, the fact remains that the Government, far from promoting collective bargaining to resolve conflicts between workers and employers, does not hesitate systematically to resort to force, of which civil requisitioning is a typical example, in order to suppress worker opposition to its policies.
6. 437. The ICFTU recalls that the Government has resorted to civil requisitioning on a number of occasions since 1993.
7. 438. Lastly, the ICFTU indicates that it immediately protested about the civil requisitioning of maritime workers in July 1999, inviting the Government to do all it could to withdraw and cancel the requisition order imposed on maritime workers, as well as requesting both the public authorities and the employer in question to resume dialogue with the trade union in order to solve the problems affecting the enterprise. However, the situation appears still to be at a standstill. In particular, the ICFTU has discovered that the Prime Minister, in response to a question by an opposition deputy in the National Assembly, declared on 3 August last that the Government would continue the practice of civil requisitioning whenever it deemed it necessary. The Government's continued failure to respect international labour standards prompted the ICFTU to submit this complaint.

B. The Government's reply

1. 439. In its communication dated 29 September 1999 the Government declares that Cape Verde has laws relating to strikes and to civil requisition (which it annexes) which were passed in 1990 with the agreement of the National Union of Cape Verdean Workers - Trade Union Central Organization (UNTC-CS). Under this legislation, civil requisition can only be ordered to ensure the minimum services necessary for the safety and maintenance of facilities and equipment and, in some public service enterprises and establishments, the minimum services necessary to satisfy essential social needs and avoid "the serious economic, social and political disturbances" that can arise from situations in which "the usual operation of essential services of public interest or of vital sectors of the national economy is at risk". These laws list examples of certain enterprises or establishments that satisfy essential social needs. This list takes into account the country's characteristics, in particular the fact that it consists of a number of islands, as well as its fragility and virtual total reliance on the outside world, particularly with respect to basic foodstuffs, all of which make it "imperative to ensure the normal operation of essential services of public interest". The list mentioned includes in particular the enterprises from the power and fuel supply sectors, and those involved in transport, ports and airports as well as the loading and unloading of animals and perishable foodstuffs.
2. 440. The Government explains that, in accordance with the legislation mentioned, determining the minimum services and the workers who must provide them is the responsibility of the employer, once the strike committee representing the workers has given its views.
3. 441. The Government indicates that the law authorizes recourse to civil requisition in much broader circumstances than just cases of non-fulfilment of the obligations relating to the provision of minimum services during strikes. These circumstances may or may not be related to workers' strikes without there necessarily being a relationship of need between the civil requisition and the strike. Therefore the complainant's claim that the Government can only resort to civil requisition in the event of the non-fulfilment of compulsory minimum services or in the event of extreme danger for the population is not strictly true, as to those situations must be added circumstances where it is "imperative to ensure the normal operation of essential services". Contrary to what the ICFTU says in its complaint, in the strikes started by the trade unions affiliated to the UNTC-CS it has not been possible to reach agreement between the parties on the minimum services to be maintained, because the trade unions systematically refuse the proposals put forward by the employers on this matter and refuse to ensure during the strike the minimum services determined by the employer. The Government has only intervened in cases where, following the failure of negotiations (always initiated by the State's labour administration) it is found, once strike action has begun, that the minimum services established are not being provided; this was the case with the strikes by the CNN-ARCAVERDE which gave rise to the ICFTU's complaint. The CNN-ARCAVERDE is a state maritime transport company which runs between the islands of Cape Verde transporting passengers and cargo. Its social function is very clear, namely:
   • -- it is the only enterprise that carries passengers by sea between the nine islands and benefits the poorest members of the population who do not have enough money to travel by aeroplane (with the exception of Sao Vicente and Santo Antao, the private shipping companies do not transport passengers, just cargo);
   • -- it is the only form of passenger transport for certain destinations, such as Brava, which does not have an airport that is operational for the type of air transport available in the country;
   • -- it is the only company to transport merchandise to all the islands, also covering routes where maritime transport is not profitable (private enterprises only concern themselves with the profitable islands); of special relevance is the transport of essential goods, such as foodstuffs, as transport in small passenger aeroplanes would be impractical in the country due to passenger transport capacity and costs; without it, foodstuffs would be inaccessible to the majority of the population, resulting in hunger in Cape Verde; and
   • -- it is the only enterprise to provide a regular service.
4. 442. It is only by being unfamiliar with the fact that Cape Verde consists of a number of islands that one could state, as the ICFTU has done, that the CNN-ARCAVERDE cannot be equated to an essential service, citing the alternative of air transport and private maritime transport.
5. 443. The Government explains that on the basis of studies financed by international financial bodies, it decided to change its strategy for providing a maritime link for passenger transport to all the islands, opting to give private enterprises a concession to provide this service and granting the corresponding compensation for the social service provided on the non-profitable routes following the realization that this was a more efficient way of providing a better service to citizens. For this reason it was also decided to close down the CNN-ARCAVERDE and to liquidate its capital resources, selling the boats to private entities by way of a concession contract, it being agreed that the workers not taken on by the purchasers of the boats would be compensated in accordance with legislation.
6. 444. It was also agreed that during the liquidation process the boats belonging to the CNN-ARCAVERDE would continue to provide the regular service of transporting passengers and cargo by sea between the islands, specifically because this constituted a social and essential service in Cape Verde. In other words, the Government did everything to ensure that the closure of the CNN-ARCAVERDE would harm neither the population nor the company's workers whose legal rights were expressly safeguarded.
7. 445. Nevertheless, for merely party political and vote-catching reasons (it is no secret to anyone in Cape Verde that the trade unions in the UNTC-CS have close ties with the former sole party, currently in opposition), the UNTC-CS wants the SIMETEC to receive higher compensation from the Government than that provided by law in spite of no agreement having been reached on this matter, contrary to what the ICFTU maintains in its complaint. The organization is also trying to impose itself without attempting to negotiate or convince - on the contrary, it has heaped insults on the Government both in letters and in messages to the media. The SIMETEC has refused to collaborate and negotiate with the liquidation committee set up by the Government to manage the liquidation process and to ensure the operation of the boats until their sale. On the Government's instructions this committee declared itself available to work in collaboration with the trade union to examine the situation of all those workers displaying a spirit of openness and awareness. It also refused to guarantee to provide the minimum services determined by the management of the CNN-ARCAVERDE, minimum services which related to the guaranteed transport of passengers between seven of the nine islands at least once during the week scheduled for the strike. The announced strike was a strike in the maritime transport sector and concerned a key enterprise that operates with exclusivity as regards the connections between the islands and whose boats carry out most of the transport of goods intended for the provision of the population living on the islands. After the civil requisition was ordered, and once the strike had begun without the minimum services being provided, the trade union suspended it. Nevertheless, as part of the trade union strategy to prevent the liquidation committee from working, it declared another identical strike, in such a way that the previous situation was repeated (refusal to negotiate and to soften the trade union stance, refusal to accept the minimum services, insults against the Government, etc.), another civil requisition was justified and with it another suspension of the strike.
8. 446. It is not true that the Government systematically resorts to force and does not negotiate. On the contrary, it is the UNTC-CS trade unions which, for party political reasons, refuse to negotiate and to participate in social dialogue. The number of strikes without civil requisitioning is much higher than those where there have been cases of requisitioning. In this connection, for example, a strike was held a few months ago in the telecommunications enterprise which was conducted without any government intervention because the minimum services were agreed upon and were provided. To cite, as the ICFTU has done in its complaint, the tragic situation caused by a plane crash that was the most serious to have ever befallen Cape Verde has nothing to do with the holding of strikes and denotes an unacceptable act of pure demagogy.
9. 447. The Government says it is sure that any ILO judicial precedents demonstrating that maritime workers do not form part of the essential services - if such judicial precedents exist - were not adopted with respect to small island States, because maritime transport between the islands is essential if the special features of a State such as Cape Verde are taken into account, as they should be.
10. 448. Contrary to the indications of the ICFTU, the requisitioning of maritime workers was due to the intransigence of the trade union's party political interests as it did not want to and still does not want to engage in dialogue with the enterprise management and confines itself to insulting the Government and opposing it at all costs. Naturally, as laws are made to be complied with on the basis of the public good, when negotiations fail the Government will use its prerogatives with respect to civil requisitioning only to the extent that this exceptional provision is justified. Nevertheless the Government, which is responsible for the introduction of freedom and trade union pluralism in Cape Verde and the codification in the Constitution of the right to strike in far-reaching terms, is still prepared, as it has already demonstrated, to engage in dialogue and look for solutions better to balance workers' interests and national interests in general.

C. The Committee's conclusions

1. 449. The Committee observes that the complainant in this case alleges that the Government carries out civil requisitioning in the event of strikes, going beyond the cases provided in legislation (failure to observe the compulsory minimum services or in the event of extreme danger for the population). The complainant objects more particularly to the order for the requisitioning of the workers who called a strike as from 27 July 1999 in the national maritime company CNN-ARCAVERDE, as a result of the failure to comply with agreed provisions relating to the compensation of the workers affected by enterprise restructuring, the trade union organization having guaranteed the minimum services and without the strike implying any danger for the population.
2. 450. The Committee notes the Government's declarations, namely that: (1) according to legislation, the Government can resort to civil requisition in the event of failure to fulfil obligatory minimum services and in the event of extreme danger, and also in situations in which it is imperative to ensure the normal operation of essential services; (2) the SIMETEC (trade union organization that operates in the CNN-ARCAVERDE maritime company) refused to negotiate with the enterprise and pursued party political interests, subsequently refused to provide the minimum services determined by the director of the company which related specifically to guaranteeing the transport of passengers between seven of the nine islands during the week scheduled for the strike, and the strike did in fact begin without the minimum services being provided; (3) the services of maritime workers who provide maritime transport between islands are essential for small island States such as Cape Verde; (4) in the event of a strike, once the strike committee representing the workers has given its views, it is the responsibility of the employer to determine the minimum services and decide which workers must provide them.
3. 451. The Committee observes that the declarations made by the complainant and the Government are contradictory with respect to the provision of minimum services during the strike of the maritime workers. The Committee notes that this question is related to the forced civil requisition of the strikers. In this respect, the Committee observes that the relevant legislative provisions relating to civil requisition are as follows:
   • Article 12 of Decree-Law No. 76/90 (obligations during the strike)
   • During the strike workers will be obliged to render the services necessary for the safety and maintenance of the equipment and facilities in such a way that, once the strike has finished, activities can resume as usual.
   • In enterprises or establishments whose objective is to satisfy essential social needs, workers will be obliged to guarantee during the strike the provision of the minimum services which are indispensable to satisfy such needs.
   • For the purposes of the previous paragraph, enterprises and establishments intended to satisfy essential social needs are considered to be those belonging in particular to some of the following sectors:
     • (a) post and telecommunications;
     • (b) health services;
     • (c) funeral services;
     • (d) water and sanitation supply;
     • (e) power and fuel supply;
     • (f) firefighters;
     • (g) transport, ports and airports;
     • (h) loading and unloading of animals and perishable foodstuffs;
     • (i) banking and credit institutions.
   • The determination of the services mentioned in the above clauses and the determination of the workers in charge of providing them is the responsibility of the employer once the workers' representatives mentioned in article 6 have given their views.
   • In the event that the provisions of the previous paragraphs are not complied with, the Government may carry out civil requisitions in the terms of the applicable legislation.
   • Article 2 of Decree-Law No. 77/90
   • Civil requisition is an exceptional measure that can only be imposed in situations of emergency or extreme severity or when it is imperative to ensure the normal operation of essential services of public interest.
4. 452. On previous occasions the Committee has indicated that:
   • Whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful, if applied to a specific category of staff in the event of a strike whose scope and duration could cause such a situation.
   • The use of the military and requisitioning orders to break a strike over occupational claims, unless these actions aim at maintaining essential services in circumstances of the utmost gravity, constitute a serious violation of freedom of association.
   • (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 572 and 573.)
5. 453. Given that the Committee has recognized that the transportation of passengers and commercial goods, while not an essential service, is a service of primary importance where the requirement of a minimum service in the event of a strike can be justified (see Digest, op. cit., para. 566) the Committee concludes that the regulation of civil requisition in Cape Verdean legislation is not contrary to the principles mentioned. Nevertheless, the Committee emphasizes that one of the premises for requisition contained in the legislation is the failure to fulfil the obligatory minimum services, services which are determined by the employer once the workers' representatives have given their views. In this respect, the Committee wishes to recall its principles concerning the determination of minimum services, which are as follows:
   • 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.
   • As regards the legal requirement that a minimum service must be maintained in the event of a strike in essential public services, and that any disagreement as to the number and duties of the workers concerned shall be settled by the labour authority, the Committee is of the opinion that the legislation should provide for any such disagreement to be settled by an independent body and not by the ministry of labour or the ministry or public enterprise concerned.
   • (See Digest, op. cit., paras. 560 and 561.)
6. 454. This being the case, bearing these principles in mind and observing that legislation establishes that the Government may carry out civil requisitions when the minimum services have not been met, the Committee requests the Government to take measures with a view to amending legislation so that in the event of disagreement between the parties concerning minimum services (activities to be carried out and people responsible for performing them) to be respected during strikes, this difference of opinion is resolved by an independent body. The Committee draws the attention of the Committee of Experts on the Applications of Conventions and Recommendations to the legislative aspects of the case.

The Committee's recommendations

1. 455. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take measures with a view to amending its legislation so that in the event of disagreement between the parties on the minimum services (activities to be carried out and people responsible for performing them) to be respected during strikes, this difference of opinion is resolved by an independent body. It requests the Government to keep it informed in this respect.
   • (b) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.