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Comments adopted by the CEACR: Mozambique

Adopted by the CEACR in 2021

C014 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Articles 1 and 2 of the Convention. Scope of application. Weekly rest period. In previous comments, noting that under section 3(1)(c) and (d) and (2) of the Labour Act, work in mines and ports is governed by specific legislation and that the Labour Act applies to these workers in so far as it is compatible with their nature and characteristics, the Committee requested the Government to indicate the legislation relating to weekly rest applicable to these categories of workers. The Committee notes that, in its report, the Government indicates that Decree No. 13/2015 of 3 July 2015 approved the Mining Labour Regulations and Decree No. 46/2016 of 31 October 2016, approved the Dock Work Regulations. The Committee observes that while section 13 of the Mining Labour Regulations provides that the normal weekly rest of mine workers and oil must be of one day, the Dock Work Regulations does not seem to contain any provision on weekly rest for this category of workers.
Moreover, the Committee had previously noted that section 95(1) of the Labour Act which provides that the minimum weekly rest period is at least 20 consecutive hours, is not in conformity with Article 2(1) of the Convention requiring a period of weekly rest comprising at least 24 consecutive hours. Noting the Government’s indication that the issue of the length of weekly rest is being considered in the framework of the Labour Act’s revision process, the Committee requests the Government to take the necessary measures to: (i) bring the national legislation in line with the principle of 24 hours’ weekly rest required by the Convention; and (ii) ensure that dock workers have the benefit, in law and in practice, of a 24 hour period of rest per week. It also requests the Government to provide information on any progress made in this regard, as well as copies of any new legislation recently adopted on this subject.

C018 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on social security, the Committee considers it appropriate to examine Conventions Nos 17 (workers’ compensation, accidents), and 18 (workers’ compensation, occupational diseases) together.
Articles 2 and 3(2) of Convention No. 17. Special schemes for the coverage of certain categories of workers. In its previous comments, the Committee requested the Government to indicate whether any of the special schemes foreseen in section 3 of the Act No. 23/2007 for the social security coverage of domestic workers, workers in the sports sector, artists, and workers in the rural sector, had been implemented.
(i) Coverage of domestic workers. The Committee notes the indications provided by the Government in its report in relation to the coverage of domestic workers and its reference to the Domestic Work Regulations (Decree no. 40/2008). It notes, in particular, that section 13 c) of the Regulations establishes an obligation for the employer to provide medical care in case of work accidents and occupational diseases to their domestic employees, and to grant compensation, while section 27(1) establishes that after 30 days, the guarantees in cases of temporary incapacity for work cease, without prejudice to the observance of the applicable provisions on social security. The Committee requests the Government to (i) indicate if domestic employees who suffer personal injury due to a work accident are afforded financial compensation and medical care in case of incapacity for work and need for such care lasting for more than 30 days; and (ii) provide information on the measures which guarantee the coverage and provision of compensation and medical care to domestic employees who are incapacitated for work or who require medical care for longer than 30 days.
(ii) Coverage of workers in the sports sector. The Committee takes note of the indication provided by the Government about the issuance of the Regulations on Sports Employment (Decree no. 48/2014 of 21 August 2014), pursuant to which employers in the sports sector have the obligation to register their employees with, and pay contributions to, the national social security system (section 14 (1)(e)). It further notes that they are included, together with artists, in the scope of application of the Regulations on Mandatory Social Security, when associated to a sports club or company (section 3(2)(i)). The Committee observes, however, that, pursuant to Decree No. 62/2013, approving the Regulations Establishing the Legal Regime Governing Industrial Accidents and Occupational Diseases, coverage for work injury compensation in Mozambique is not provided through social insurance, but through a system of employers’ liability, with an obligation for employers to insure their responsibility. The Committee requests the Government to specify whether the compensation of workers in the sports sector for personal injury due to a work accident is afforded by the social security system, or whether it is the employers’ responsibility, and to indicate the relevant provisions of the national legislation.
(iii) Coverage of artists and rural workers. Concerning artists and rural workers, the Committee notes that that Government indicates that relevant regulations have not been created and that efforts will be made in this regard. The Committee invites the Government to keep it informed of any development in this regard and, in particular, on any measure taken or envisaged for the implementation of section 3 of Act No. 23/2007, which provides for the establishment of special schemes for artists and rural workers in cases of work accidents.
Article 7 of Convention No. 17. Additional compensation for the constant help of another person. The Committee takes note of the complementary information provided by the Government regarding the additional compensation to which victims of work injuries may be entitled for the constant help of another person, as set out in Decree No. 62/2013.
Article 11 of Convention No. 17. Guarantees in the event of insolvency of the employer or insurer. In its previous comments, the Committee noted that the system established by Decree No. 62/2013 provided for the transfer of employer’s responsibility for employment injury coverage to accredited insurance companies, and requested the Government to indicate the measures guaranteeing that compensation continued to be granted in cases where the insurance company and/or the employer became insolvent. The Committee notes the Government’s reply indicating that the Regulations provided through the above-mentioned Decree do not specify who is responsible in these cases. Recalling that Article 11 of the Convention requires that national laws or regulations must make provision to ensure in all circumstances, in the event of the insolvency of the employer or insurer, the payment of compensation to the injured person, or, in case of death, to his/her dependants, the Committee requests the Government to take the necessary measures to give full effect to Article 11 of the Convention.
Article 2 of Convention No. 18. Schedule of occupational diseases. In its previous comments, the Committee noted that Decree No. 62/2013 was in line with sections 269 and 233(5) of the Labour Code, and requested the Government to specify when regulations would be adopted so as to give effect to sections 224(2) and 269 of Act No. 23/2007 and section 20(4) of Decree No. 62/2013, operationalize the schedule of occupational diseases laid down by the Labour Code, and specify the industries and processes in which the origin of the disease is presumed to be occupational in nature, as required by Article 2 of the Convention. The Committee notes the Government’s reply indicating that, as a result of the current review of the Labour Act, it is not possible to envisage when the expected regulations will be issued, and that a feasibility study will be carried out in this regard. The Committee requests the Government to indicate if, in the absence of the specific regulations concerning industries and occupations likely to provoke occupational illnesses as provided by sections 224(4) and 269 of the Labour Act and section 20(4) of Decree No. 62/2013, in conformity with the Schedule appended to Article 2 Convention No. 18, currently all diseases and poisonings produced by the substances listed in section 224(2) of Act No. 23/2007 and in section 20(2) of Decree No. 62/2013 are considered as occupational diseases, irrespective of the trade or industry in which workers are engaged, and to continue providing information on regulations issued in this regard.
Application of the Conventions in practice. With reference to its previous comments concerning the application of Convention No. 18 in practice, the Committee once again requests to the Government to provide information on the number of occupational diseases reported; the details of the industrial processes that cause the occupational diseases; the number of workers employed in such industries; and the amounts of the benefits in cash and in kind that have been provided following an occupational disease. As regards the application of Convention No. 17 in practice, the Committee requests the Government to submit the information requested in the report form in this regard, providing a general appreciation of the manner in which the Convention is applied, including for instance reports of the inspection services and statistical information, in so far as it is available.
Conclusions and recommendations of the Standards Review Mechanism. With respect to its previous comment, the Committee notes the Government’s indication that it welcomes the reference of the Committee concerning the recommendations of the Standards Review Mechanism (SRM) Tripartite Working Group, based on which the Governing Body has decided that Member States for which Conventions Nos 17 and 18 are in force should be encouraged to ratify the more recent Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), and accept the obligations in its Part VI (see GB.328/LILS/2/1). In this regard, the Committee notes the Government’s indication that efforts will be made to realize a feasibility study concerning the possibilities of ratification. The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office in this regard, and once again encourages the Government to follow up the Governing Body’s decision at its 328th Session (October–November 2016) approving the recommendations of the SRM Tripartite Working Group, and to consider ratifying Conventions Nos 121 or 102 (Part VI) as the most up-to-date instruments in the area of employment injuries and occupational diseases.

C030 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 and 30 (hours of work) together.
Legislative developments. The Committee notes that in its report on Convention No. 14, the Government indicates that the Labour Act No. 23/2007 of 1 August 2007 is under revision. In this context, the Committee requests the Government to take its comments, set out below, into account when finalizing the current legislative reform and to provide information on any legislative development relating to the abovementioned reform. It recalls that the Government can avail itself of the technical assistance of the ILO in this process.
Article 1 of Convention No. 1. Scope of application. The Committee had previously requested the Government to indicate the legal provisions regulating working time in mining work, port work and maritime work, which are currently excluded from the scope of application of the Labour Act. The Committee notes that the Government indicates in its report that the Decree No. 13/2015 of 3 July 2015 approved the Mining Labour Regulations, the Decree No. 46/2016 of 31 October 2016 approved the Dock Work Regulations, and the Decree No. 50/2014 of 30 September 2014 approved the Maritime Labour Regulations. The Committee takes note of this information, which addresses its previous request.
Article 5 of Convention No. 1 and Article 6 of Convention No. 30. Variable distribution of working hours over periods longer than a week. In previous comments, noting that section 85(4) of the Labour Act provides that the average weekly working time of 48 hours may be calculated using a reference period not exceeding six months, the Committee recalled that the Conventions permit the averaging of hours of work only in exceptional cases, and require either a prior agreement between workers’ and employers’ organizations to which Governments may give the force of regulations (Article 5(1) of Convention No. 1) or regulations made by the public authority (Article 6 of Convention No. 30). The Committee notes that the Government does not provide any relevant information on this issue. The Committee requests the Government to take the necessary measures to restrict the introduction of the averaging of hours of work over a reference period longer than a week to exceptional circumstances and to make it conditional upon the procedure of authorization required by the Conventions.
Article 6(1)(a) and (b) and (2) of Convention No. 1 and Article 8 of Convention No. 30. Permanent and temporary exceptions. Prior consultations with social partners. In previous comments concerning sections 86(1) and 90(2) of the Labour Act, which provide for permanent and temporary exceptions to normal working hours, the Committee had requested the Government to provide information on how effect is given to the Conventions’ requirement to determine these exceptions by regulations made only after consultation with the workers’ and employers’ organizations concerned. In this respect, the Committee notes that the Government indicates that before the approval of any regulation establishing permanent or temporary exceptions to normal working hours, instruments are examined, and agreements reached by tripartite constituents in the framework of the Consultative Labour Commission (CCT) created by Decree No. 7/94 of 9 March 1994. The Committee takes note of this information, which addresses its previous request.
Articles 3 and 6(1)(b) of Convention No. 1 and Article 7(2) of Convention No. 30. Temporary exceptions. Circumstances. The Committee had previously noted that: (i) section 85(3) of the Labour Act provides that under collective labour regulation instruments, normal daily working hours may be increased in exceptional cases by up to a maximum of four hours; and that (ii) section 86(3) of the Labour Act provides that increases in the maximum limits of normal working hours may be established by a government decision on the recommendation of the labour minister and the minister who oversees the sector of activity in question. In this respect, the Committee had observed that neither section 85(3) nor section 86(3) of the Labour Act clearly define the exceptional circumstances under which normal hours of work may be temporarily increased.
Moreover, the Committee notes that section 9(3) of the Dock Work Regulations provides that by collective agreement, normal working hours may be increased up to 12 hours, not exceeding 56 hours per week. It also notes that section 8(2) of the Mining Labour Regulations provides that normal working hours can be increased or reduced by Government determination or by instrument of collective labour regulation under the terms of the Labour Act, provided that they are no longer than 12 hours per day and 56 hours per week. The Committee observes that these two provisions do not refer to the exceptional character of those increases in normal working hours, and do not specify the circumstances under which resort to those increases is allowed. The Committee wishes to emphasize the importance of national legislation and practice restricting recourse to exemptions from the maximum limits to hours of work (namely eight hours in the day and 48 hours in the week) to cases of clear, well-defined and limited circumstances (2018 General Survey on working time instruments, paragraph 119). The Committee requests the Government to take the necessary measures to ensure that the legislation providing for temporary exceptions to normal working hours, either general or for specific categories of workers like dock and mining workers, clearly define the exceptional circumstances in which normal working hours are temporarily increased. The Committee also requests the Government to supply information on progress made in this regard.
Article 6(2) of Convention No. 1 and Article 7(3) of Convention No. 30. Additional hours of work allowed. In previous comments, the Committee had noted that section 86(3) of the Labour Act providing for temporary exceptions to normal working hours does not fix any limit to additional hours allowed in each case, as required by Article 6(2) of Convention No. 1. It had also noted that section 90(3) of the Labour Act does not fix any daily limit to additional hours in case of temporary exceptions, as required by Article 7(3) of Convention No. 30. The Committee notes that the Government does not provide any information in this regard. The Committee requests the Government to take the necessary measures to ensure that regulations made by public authority determine: (i) the maximum number of additional hours allowed in case of temporary exceptions (Article 6(2) of Convention No. 1); and (ii) the maximum number of daily additional hours of work allowed in case of permanent exceptions (Article 7(3) of Convention No. 30).
Article 6(2) of Convention No. 1. Compensation for overtime. The Committee notes that the Dock Work Regulations (section 9(2), (3) and (4)) and the Mining Labour Regulations (sections 8(2) and 15) provide for increases in normal working hours, but do not seem to contain provisions on the compensation for those additional hours. The Committee notes that section 115 of the Labour Act provides that overtime performed until eight o’clock at night shall be paid at the normal wage rate plus 50 percent, that overtime performed between eight o’clock at night and the start of the normal working hours of the following day shall be paid at the normal wage rate plus 100 percent, and that exceptional work shall be paid at the normal wage rate plus 100 percent. The Committee requests the Government to indicate whether section 115 of the Labour Act applies to dock and mining workers in cases where their normal working hours are increased.
Article 8(2) of Convention No. 1 and Articles 11(3) and 12 of Convention No. 30. Penalties. In previous comments, the Committee had requested the Government to indicate the sanctions provided for in case of infringement of the working time legislation. The Committee notes that the Government indicates that, regarding infringements of the working time legislation, general sanctions provided for in section 267 of the Labour Act are applicable on a case-by-case basis. The Committee takes note of this information, which addresses its previous request.

C081 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 3(2) of the Convention. Additional functions entrusted to labour inspectors. 1. Role of labour inspectors in monitoring the working conditions of migrant workers found in an irregular situation. Following its previous comments, the Committee notes that the Government has once again not provided information on the measures taken or envisaged to guarantee that labour inspectors ensure that employers fulfil their obligations to foreign workers in an irregular situation, as well as on measures to ensure that the functions assigned to labour inspectors regarding the verification of the contractual or residence status of foreign workers do not interfere with the main objective of labour inspectors. In this regard, the Committee notes with concern that, according to the “General Guidelines for Inspections 2017” communicated by the Government with its report, labour inspectors shall: (i) verify the existence of cases of foreign workers, with temporary residence, who remain in the national territory after the period of validity of the contract by virtue of which they entered Mozambique; and (ii) in the case of termination of the employment contract for any reason, verify whether the employer has communicated this termination to the entity that oversees the working area and the migration services of the province where the citizen has been working, through a separate document, within 15 days from the termination. The Committee further notes that: (i) section 4(3)(c) of Decree No.19/2015 approving the Organic Statute of the General Labour Inspectorate, provides that labour inspectors shall control the obligations regarding the employment of foreign workers; (ii) section 26 of Decree No. 37/2016 approving the Regulation of Mechanisms and Procedures for Employment of Citizens of Foreign Nationality provides that the General Labour Inspectorate is responsible for supervising compliance with the provisions of this Regulation; (iii) section 27 of Decree No. 37/2016, stipulates that failure to comply with the provisions on the employment of foreign labour shall be punished by suspension and a fine equal to five to ten monthly salaries earned by the foreign worker in respect of whom the offence has been committed; and (iv) section 28 of Decree No. 37/2016, provides that, whenever the General Labour Inspectorate or its provincial delegation becomes aware of any fact that could be ground for revoking the act that allowed the employment of the foreign worker, it shall prepare a file containing, in summary, the evidence necessary for taking a decision. The Committee finally notes, from the statistical information provided by the Government in its report, that 513 foreign workers in an irregular situation were detected in 2020, whose employment relationship was subsequently suspended. The Committee requests once again the Government to take the necessary measures, in law and in practice, to ensure that the functions assigned to labour inspectors do not interfere with the main objective of labour inspectors, which is to ensure the protection of workers, in accordance with Article 3(2) of Convention No. 81. The Committee also requests the Government to indicate the manner in which labour inspectors ensure the enforcement of employers’ obligations with regard to the statutory rights of migrant workers in an irregular situation (such as payment of outstanding wages, social security benefits or the conclusion of an employment contract).
2. Role of labour inspections relating to the exercise of trade union rights. The Committee previously noted that, pursuant to section 4(5) (a) and (b) of Decree No. 45/2009, the functions of the General Labour Inspectorate include that of registering trade unions, and verifying the legality of their by-laws. The Committee recalls, as emphasized in its 2006 General Survey, Labour inspection, paragraph 80, that labour inspectors should only exercise such supervision in exceptional cases, such as offences or violations of the law denounced by a significant number of members of trade unions and employers’ organizations. Noting the absence of a reply from the Government in this respect, the Committee once again requests the Government to take the necessary measures to ensure that labour inspectors are relieved from any tasks which might be perceived as interfering in the activity of trade unions’ and employers’ organizations and therefore be prejudicial to the authority and impartiality necessary to inspectors in their relations with employers and workers.
3. Role of labour inspectors in conciliating and mediating labour disputes. The Committee previously noted that: (i) pursuant to section 4(5)(c) and (d) of Decree No. 45/2009, the functions of the General Labour Inspectorate include the provision of technical assistance concerning the process of collective bargaining and intervening in industrial conflicts; and (ii) requests to labour inspectors for conciliation and mediation have decreased following the entry into operation of the Mediation and Arbitration Centres for Labour Disputes at the provincial level. The Committee notes that the Government does not indicate whether it foresees, in view of the establishment of the Mediation and Arbitration Centres, to relieve labour inspectors from the function of mediation and conciliation. The Committee requests once again the Government to take the necessary measures, in law and in practice, to ensure that, in line with Article 3(2) of the Convention, additional duties assigned to labour inspectors, other than their primary duties, do not interfere with the effective discharge of the latter. It also requests the Government to provide information on any progress made in this regard.
Articles 10, 11 and 16. Human resources and material means, including transport facilities. Coverage of workplaces by labour inspections. The Committee previously noted that: (i) the number of labour inspectors is very low in relation to the number of workplaces subject to labour inspection and the incidence of labour conflicts; (ii) difficulties in the application of the Convention relate to the availability of transport facilities and the coverage of workplaces by labour inspections in remote areas; and (iii) expenses incurred by labour inspectors when using their own vehicles are not reimbursed. The Committee notes that the Government does not provide information in this regard. It notes, however, from the statistical information provided by the Government, that labour inspectors visited 8,723 establishments (covering 131,663 workers) in 2020 compared to 10,106 establishments (covering 158,690 workers) in 2017 and 6,872 establishments (covering 183,467 workers) in 2013. The Committee once again requests the Government to describe the current situation of the labour inspection services in terms of the human resources and material means available, including transport facilities to enable labour inspectors to carry out inspection visits. Recalling once again that under Article 11(2) of the Convention, the competent authority shall make the necessary arrangements to reimburse to labour inspectors any travelling and incidental expenses which may be necessary for the performance of their duties, the Committee requests the Government to take measures to this effect in the very near future and to provide information on the progress made in this respect.
Articles 20 and 21. Publication and communication of an annual report on labour inspection. In its previous comment, the Committee took note of the 2013 annual report of the General Labour Inspectorate. While noting the statistical information provided by the Government on inspection visits and violations and penalties imposed, the Committee notes that the annual report on the activities of the labour inspectorate has not been communicated. The Committee therefore requests the Government to take the necessary measures to ensure that annual labour inspection reports are prepared, published and transmitted to the ILO, in accordance with Article 20 of the Convention, and to ensure that such reports contain information on all the subjects listed under Article 21 of the Convention.
The Committee is raising other matters in a request addressed directly to the Government.

C081 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Articles 3(1)(b) and 13 of the Convention. Preventive activities of the labour inspection services in the area of occupational safety and health (OSH), including measures with immediate executory force. The Committee notes that the Government refers in its report to the number of warning notices for education and guidance purposes issued by the labour inspectorate in 2020. Noting the absence of information on the measures with immediate executory force adopted by the labour inspection service, the Committee once again requests the Government to provide information on the application in practice as well as relevant statistical information in relation to section 12(m) of Decree No. 45/2009, providing labour inspectors with the authority to take measures with immediate effect, such as the suspension of all operations in the event of serious and imminent danger for life, safety and health of workers.
Article 6. Conditions of service of labour inspectors and legal protection of labour inspectors for initiating the necessary inspection procedures. The Committee previously noted that, in accordance with section 49 of Decree No. 45/2009 regulating the general labour inspectorate, a ministerial decree shall determine the qualifications for positions within the general labour inspectorate, as well as the career structure and remuneration of inspection staff. The Committee notes the Government’s indication that a Framework for Inspection Personnel is currently being formulated. The Committee further notes that, according to section 10 of Decree No. 19/2015 approving the Organic Statute of the General Labour Inspectorate and establishing new provisions, labour inspectorate personnel is governed by the civil service regime and by specific legislation applicable to the inspection. Noting the absence of information in this respect, the Committee once again requests the Government to specify the levels of remuneration and career prospects of labour inspectors in relation to other categories of public servants exercising similar duties, such as tax inspectors. The Committee further requests the Government to provide information on the developments in the process of adoption of the Framework for Inspection Personnel, and to provide a copy of any text implementing section 49 of Decree No. 45/2009 and section 10 of Decree No. 19/2015.
In addition, the Committee previously noted that: (i) section 36(1) of Decree No. 45/2009 provides for the rights granted to labour inspectors when they are subject to legal proceedings with regard to their actions taken in the course of their duties (attorney’s fees, costs of litigation, transport costs, etc.) and (ii) section 36(3) of the same Decree, provides that labour inspectors have to reimburse the relevant costs incurred by the labour inspectorate where the court finds that labour inspectors have committed an individual or procedural error. Noting the absence of information in this regard, the Committee once again recalls the importance of guaranteeing labour inspectors’ working conditions to ensure their independence from any improper external influences. Therefore, the Committee urges the Government to provide detailed information on the application in practice of section 36, including on proceedings initiated against labour inspectors over recent years (offences alleged, legal provisions invoked, duration of the proceedings, etc.) and their outcomes.

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

In its previous observation, the Committee noted with regret the lack of action taken by the Government to investigate alleged acts of violence against striking workers in the sugar-cane plantation sector and emphasized that where such cases are brought to the Government’s attention, the competent authorities should begin an inquiry immediately and take appropriate measures to bring the perpetrators to justice. The Committee notes that the Government emphasizes that, through the Labour Mediation and Arbitration Commission (COMAL) and the General Inspection of Labour, it is committed to rigorously investigate the events to ascertain the facts and apply the appropriate sanctions to bring about justice. It further notes the Government’s indication that it will provide information on the matter in its next reports. Recalling that the abovementioned allegations were brought to the Government’s attention in 2008, the Committee expects that the events will be investigated shortly, and urges the Government to provide detailed information on the results of the inquiry and, in case of conviction, on the sanctions imposed.
The Committee also takes note of the observations of Public Services International (PSI) received on 1 October 2020, which refer to the conclusions of the Committee on Freedom of Association in Case No. 3296 and denounce the failure by the Government to amend the legislation to facilitate the registration of a public sector union. The Committee requests the Government to provide its comments thereon.
Article 2 of the Convention. Registration of workers’ and employers’ organizations. In its last observation, the Committee expected that the Government would take the necessary legislative measures, in full consultation with the social partners, to bring into conformity with the Convention section 150 of the Labour Act, which allows the central authority of the labour administration an unduly restrictive period of 45 days to register a trade union or an employers’ organization. It also requested the Government to provide information on the current application in practice of section 150 in the meantime (number of trade unions registered in a year and the time taken by the requesting authorities to register a union). The Committee notes the Government’s indication that: (i) the revision process of the Labour Act is not yet completed; (ii) the information on the number of trade unions registered in a year will be provided as soon as available; and (iii) the information on the time taken by the requesting authorities to register a union will be provided as soon as the new Labour Act is approved. The Committee expects that the revision process of the Labour Act will be completed in the near future and that, in full consultation with the social partners, the Government will take the necessary measures to ensure that section 150 is brought into line with the Convention. It requests the Government to inform of any evolution in this respect and to provide a copy of the new Labour Act once adopted. The Committee also reiterates its request for the Government to provide information on the practical application of the existing provision, specifically for the years 2019, 2020, and 2021 (number of trade unions registered in a year and the time taken by the requesting authorities to register a union).
Article 3. Penal responsibility of striking workers. The Committee previously expressed its expectation that the Government would take the necessary measures to amend section 268(3) of the Labour Act, under the terms of which any violation of sections 199 (freedom to work of non-strikers), 202(1) and 209(1) (minimum services) constitutes a breach of discipline for which workers who are on strike are liable under both civil and penal law. The Committee notes that the Government states that the Labour Act is still under revision and that it will inform of the new measures once the revision is completed. The Committee recalls that it considers that adequate safeguards and immunities from civil liability are necessary to ensure respect for the right of workers to exercise legitimate industrial action. It further recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and on no account should measures of imprisonment be imposed except in cases of violence against persons or property or other serious infringements of rights and only pursuant to legislation punishing such acts. The Committee trusts that the Government will take all necessary measures to ensure that amendments to the abovementioned provisions are included in its revision of the Labour Act so as to bring these provisions into conformity with the Convention. The Committee requests the Government to provide information on any evolution in this regard and reminds it that it may avail itself of the technical assistance of the Office.
The Committee is raising other matters in a request addressed directly to the Government.

C087 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Act on the right to organize in the public services (Act No. 18/2014)

The Committee takes note of the Government’s indication that a revision process of the Act on the right to organize in the public services (Act No. 18/2014) is underway. The Committee hopes that this ongoing revision process, which should be conducted in full consultation with the most representative workers’ and employers’ organizations, will take into account its comments on the provisions below with a view to bringing them into full conformity with the Convention. The Committee requests the Government to keep it informed of the progress achieved and to provide a copy of the new Act after its adoption.
Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing without previous authorization. The Committee had previously noted that section 4 of the Act provides that the exercise of freedom of association by 16 categories of public servants (including officers of the police, the armed forces, prison services, migration services, public relief services, magistrates and various categories of public servants exercising managerial functions or in positions of trust) will be regulated by specific legislation. It had also noted that section 57 of the Act provides that all public servants and employees may, if they so wish, establish and join trade union organizations, with the exception of the public servants referred to in subsections (d) and (e) of section 4, which relate to public servants in positions of trust, diplomatic posts and officers of paramilitary forces, including forest guards and inspectors. After recalling that the right to establish and join occupational organizations shall be guaranteed for all employees in the public service and that only the armed forces and the police may be excluded from the guarantees of the Convention, the Committee requested the Government to amend section 57 of the Act and to provide any relevant information concerning the adoption of the specific legislation referred to in section 4 of that Act. Noting the Government’s indication that these issues will be addressed in the discussions held as part of the revision process, the Committee requests the Government to keep it informed of any progress made regarding the amendment of section 57 of the Act and once again requests the Government to provide information regarding the specific legislation mentioned in section 4 of the Act.
Article 3. Election of trade union representatives in full freedom. In its previous comments, the Committee had noted that section 18(2) of the Act provides that only members who, in accordance with the law, have the status of public servants may be designated trade union representatives. The Committee had also noted that section 3 of the Act stipulates that its scope of application also includes public servants and employees who are retired. Recalling that the limitation of access to the function of trade union representation to one profession or, as in the present case, to a specific professional status, may impair the right of organizations to elect their representatives in full freedom, the Committee requested the Government to indicate whether section 18(2) allows retired public servants to be appointed as trade union representatives and, should the Act not allow retired officials to be elected, to amend this provision. The Committee notes that the Government indicates that this aspect will also be discussed during the revision process and that the information requested will be provided once the new Act is approved. While taking due note of the Government’s statement, the Committee expects that the revision process will ensure that legislation is amended so as to not preclude retired public employees from being able to be elected as union officers. The Committee requests the Government to keep it informed of any evolution in this respect.
Article 3. Right of trade union organizations to formulate their programmes in full freedom. The Committee had previously noted that section 7(3) of the Act provides that the exercise of the right to strike by public servants and employees shall be regulated by specific legislation. The Committee requested the Government to provide full information on the adoption of the legislation in question and to indicate the rules which currently govern the exercise of the right to strike by public servants and employees. Noting the Government’s indication that these matters will be addressed during the revision process, the Committee expects that they will be clarified and requests the Government to provide information on any development in this regard. The Committee also reiterates its request for the Government to specify which rules currently regulate the exercise of the right to strike by public servants and employees.
Article 4. Dissolution of trade unions by judicial authority. The Committee had previously noted that section 17(c) of the Act provides that a trade union may be dissolved by judicial decision further to an action by the Attorney General, not only when it is found that the true objectives of the organization are unlawful, but also when they are contrary to public morals or very different from the aims set out in its statutes. The Committee had considered that the last two grounds enumerated in section 17(c) were vague in nature and could give rise to decisions liable to impair the guarantees set out in the Convention. Emphasizing the importance of having the grounds justifying the judicial dissolution of trade unions set out precisely in the legislation and confined to serious violations of the legal provisions in force, the Committee noted with regret the absence of any developments and expected that all necessary measures would be taken by the Government, in full consultations with social partners, so as to amend section 17(c) of the Act. The Committee notes that the Government, in its report, states that it will be able to pronounce itself on this matter after the revision process is completed. The Committee expects that, within the framework of the revision process, the Government will take all necessary measures to ensure that section 17(c) of the Act is amended in light of the above and requests the Government to keep it informed of any progress made in this respect.

Labour Act (Act No. 23/2007)

Article 3. Right of trade unions to formulate their programmes. The Committee had previously requested the Government to take the necessary measures to amend the following provisions of the Labour Act:
  • – section 189, which provides for compulsory arbitration for the essential services listed in section 205, which include the postal services, the loading and unloading of animals and perishable food stuffs, fuel supply, private security services and export processing zones (section 206 and Decree No. 75/99). The Committee recalled that compulsory arbitration to end collective labour disputes or strikes is acceptable only in cases where the strike may be restricted or prohibited, namely in the case of a dispute involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) or in situations of acute national crisis. Under these conditions, the Committee considered that disputes which may arise in services enumerated in the Labour Act should not be subject to compulsory arbitration and could be resolved within the framework of the mediation and conciliation procedures established by law;
  • – section 207, which provides that the strike notice shall indicate the duration of the strike. In this regard, the Committee noted the Government’s indication that this provision may be construed as allowing a strike of limited or unlimited duration, as nothing in the law imposes a time limit on strikes. The Committee considered in this regard that the wording of section 207 should be amended to provide explicitly for the right of workers and their organizations to call a strike of unlimited duration; and finally
  • – section 212, under which a strike may be ended by a decision of the mediation and arbitration body. In this regard, the Committee previously noted the Government’s indication that section 212(1) provides for other procedures for ending strikes, including agreement between the parties concerned or a decision by a trade union organization. The Committee recalled its view that a decision to put an end to industrial action must be taken by the workers and organizations which called the strike, and not by a mediation body.
In its last direct request, while noting the Government’s indication that it was in the process of reviewing the Labour Act and that all observations and comments made by the Committee would be taken into consideration for action, the Committee expected that the Government would take the necessary measures, in full consultation with social partners, to bring all the above-mentioned provisions into conformity with the Convention. The Committee notes that the Government, in its report, emphasizes that the amendment of sections 189, 207 and 202 is dependent on the approval of the new Labour Act and that these and other related questions may be answered after the revision is completed. The Committee trusts that the revision will be completed shortly and that the new Labour Act will ensure full conformity of all the provisions described above with the requirements under the Convention. It requests the Government to indicate all progress achieved in this respect.
The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office in relation with the revision of the Acts referred to above.

C088 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes with deep concern that the Government’s report has not been received. It expects that the next report will contain full information on the matters raised in its previous comments. The Committee informs the Government that, if it has not supplied replies to the points raised by 1 September 2022, then it may proceed with the examination of the application of the Convention on the basis of the information at its disposal at its next session.
Repetition
Articles 1 to 5 of the Convention. Contribution of the employment service to employment promotion. Cooperation with the social partners. The Committee notes the information provided by the Government in reply to the 2009 direct request. The Government indicates that the operation of employment services is supervised in the context of the implementation of its five-year programme and that the social partners are involved, particularly in the context of drawing up draft legislation respecting employment services. Moreover, a skills framework for technicians, wage-earners and employees (Qualificador Comum de Técnicos, Operários e Empregados), which has been favourably received by the social partners, is reported to be in the final stages of preparation. The Committee requests the Government to provide more detailed information on the activities carried out by employment services with a view to promoting full employment. It also requests the Government to provide statistical data on the number of public employment offices established, the number of applications for employment received, the number of vacancies notified and the number of persons placed in employment by such offices.
Articles 7 and 8. Measures for particular categories of jobseekers. The Government indicates that recently qualified young people account for the majority of beneficiaries of the Employment and Vocational Training Strategy (2006–15). The Committee also notes that the Government has placed emphasis on measures to improve the services provided by employment services through, among other steps, the consolidation of the Support Fund for initiatives by young people, the provision of training to young entrepreneurs and the organization of employment grants for young people in coordination with the private sector. The Committee requests the Government to report the measures that have been taken to meet the needs of young people, persons with disabilities and other particular categories of jobseekers, and their impact, particularly in the framework of the implementation of the Employment and Vocational Training Strategy (2006–15).
Article 11. Cooperation with private employment agencies. The Government reports the visits carried out to encourage private enterprises to have recourse to public employment services. The Committee requests the Government to provide more detailed information on the measures taken to ensure effective cooperation between the public employment service and private employment agencies.

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee previously requested the Government to provide its comments on the 2010 observations made by the International Trade Union Confederation (ITUC) regarding acts of anti-union discrimination in export processing zones. The Committee notes with regret that the Government once again has not provided any information in this respect.
Articles 1 and 2 of the Convention. Protection against anti-union discrimination and interference. In its previous comments, the Committee requested the Government to take all the necessary measures to be able to provide specific statistics on the number of complaints, including judicial complaints, related to acts of anti-union discrimination and interference, and the number of fines imposed. The Committee notes the Government’s indication that four complaints related to acts of anti-union discrimination and interference were registered in 2019 and 2020. It notes however that no information was provided on how these complaints were addressed by the public authorities or on the outcomes of the related procedures. Highlighting that the small number of anti-union discrimination and interference complaints may be due to reasons other than an absence of acts of anti-union discrimination and interference, the Committee requests the Government to take the necessary measures to ensure that, on the one hand, the competent authorities take fully into account the issues of anti-union discrimination and interference in their control and prevention activities and that, on the other hand, the workers and employers in the country are fully informed of their rights regarding these issues. The Committee requests the Government to provide information on the measures taken in this regard, as well as specific statistics on the number of complaints, including judicial complaints, related to acts of anti-union discrimination and interference, and the number of fines imposed.
The Committee is raising other matters in a request addressed directly to the Government.

C098 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Application of the Convention in the private sector

Article 4 of the Convention. Collective bargaining in practice. The Committee had previously requested the Government to provide information on measures taken to promote free and voluntary collective bargaining in the private sector with an indication of the sector concerned, the number of collective agreements signed and enforced, and the number of workers covered. In the absence of information from the Government in this respect, the Committee reiterates its request.

Adoption of the Act on trade union organization in the public service

Legislative matters. In its previous comments, the Committee welcomed the adoption of the Act on trade union organization in the public service and, with a view to ensuring that public servants and employees who are not engaged in the administration of the State benefit from the guarantees afforded by the Convention, it raised with the Government the following matters:
  • – Adequate protection against anti-union discrimination and interference. After noting the various provisions of the Act prohibiting acts of anti-union discrimination and interference and guaranteeing the stability of employment of union representatives, the Committee requested the Government to indicate the machinery and sanctions applicable in the event of acts of anti-union discrimination or interference by a public employer, and the legislative texts referring to such procedures and sanctions.
  • – Right of workers and employers to establish and join organizations of their own choosing. The Committee noted that the thresholds of representativity for the establishment of provincial federations, national federations and confederations were particularly high and requested the Government to take the necessary measures, in consultation with the trade union organizations concerned, to facilitate collective bargaining by public officials and employees who are not engaged in the administration of the State, either by significantly reducing the threshold of representativity required for the establishment of provincial federations, national federations or confederations, or by recognizing the possibility for various trade union organizations to group together provisionally so as to be able to participate jointly in the bargaining process concerning public servants and employees who are not engaged in the administration of the State.
  • – Scope of application of the Act on trade union organization in the public service. With a view to assessing more fully the extent to which the categories of public employees covered by the Act on trade union organization in the public service were also covered by the Convention, the Committee requested the Government to provide information on the various institutions and bodies covered by section 3 of the Act and to specify in particular the institutions considered as indirect administration of the State.
Noting with regret that the Government once again did not provide any information in this regard, the Committee urges the Government to provide detailed information on the points raised above. The Committee recalls that the Government can avail itself of the technical assistance of the Office.

C176 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee takes note of the information provided by the Government in its first report.
Article 3 of the Convention. National policy on safety and health in mines. The Committee notes the Government’s indication that the measures taken to develop, implement and periodically review a safety and health policy for mines, which provides for regulation of the safety aspects in geological and mining activities are: the Technical Safety Regulations for Geological and Mining Activities (decree no 61/2006); the Regulations on Inspection Activity for Mining Resources and Energy (decree no. 34/2019); and the Regulations on the National System of Search and Rescue for the Extractive Industry of Mining Resources and Energy (decree no. 32/2019). The Committee also notes the Government's indication that the decree No. 31 of 2019 established the Inspectorate-General and provincial inspection delegations which are responsible for monitoring the implementation of the Technical Safety Regulations for Geological and Mining Activities, as a way of gradually developing a national safety and health system for mining activities. Finally, the Committee notes the Government's indication that the Mining Act of 18 August 2004 and the Safety Regulations are currently being amended. The Committee recalls that a safety and health policy for mines can take different forms ranging from a specific national policy document to a coherent set of laws and implementing regulations, complemented by a tripartite review process (2017 General Survey, Working together to promote a safe and healthy working environment, paragraph 97). The Committee requests the Government to provide information on progress made in the revision of the national legislation and to provide a copy of the act and regulations once adopted.
Article 5(2)(f) and Article 15. Rights of workers and their representatives to be consulted on matters and to participate in measures relating to safety and health. The Committee notes that section 273 of the Safety Regulations provides for the establishment of health and safety committees in mining operations with more than 200 workers and in those that do not reach this number but present exceptional risks of accidents. According to section 274 of the Safety Regulations, the health and safety committee includes an equal number of workers’ representatives and representatives from the mining company. The Committee requests the Government to indicate the procedures to ensure the implementation of the rights of workers and their representatives to be consulted on matters and to participate in measures relating to safety and health in workplaces with less than 200 workers and in those that do not present exceptional risks of accidents.
Article 5(3). Manufacture, storage, transport and use of explosives. The Committee notes that section 16 of the Safety Regulations provides that removal from the warehouse, storage, and distribution of unused explosive products must be carried out by persons duly authorized in accordance with the applicable legislation. The Committee requests the Government to indicate the provisions of national legislation that provide that the manufacture, storage, transport and use of explosives and initiating devices at the mine shall be carried out by or under the direct supervision of competent and authorized persons.
Article 5(4)(d). Safe storage, transportation and disposal of hazardous substances and waste produced. The Committee notes that Chapter I of the Safety Regulations regulates aspects of storage and transport of explosive products but does not provide for the requirement of safe disposal of hazardous substances and waste produced at the mine. The Committee requests the Government to indicate the provisions of national legislation which give effect to this article of the Convention.
Article 7(i). Obligation to stop operations and evacuate workers. The Committee notes that section 10 of the Safety Regulations provides that whenever situations of risk to the life or health of the worker arise, the mining titleholder or mining operator must immediately communicate such fact to the Inspectorate-General of Mining Resources and Energy, who may determine the immediate suspension of work directly or indirectly connected with such risks. The Committee requests the Government to indicate the provisions of national legislation which foresee the obligation of the employer to stop operations and evacuate workers in case of serious danger to their safety and health.
Article 9(b). Obligation to eliminate or minimize the risks resulting from exposure to hazards. Noting the absence of information on this matter, the Committee requests the Government to indicate the provisions of national legislation implementing this Article of the Convention.
Article 13, paragraph 2(e) and (f), and 4. Rights of workers’ representatives. Protection against discrimination or retaliation. The Committee notes that section 8(2) of the Safety Regulations provides for the rights of workers’ representatives to represent workers on all aspects of workplace safety and health, to participate in inspections and investigations conducted by the employer, to have recourse to advisers and independent experts and to consult with the employer in a timely manner on safety and health matters. However, the Committee notes that the national legislation does not contain provisions on the rights of workers’ representatives to consult with the competent authority (Article 13(2)(e)) and the right of workers’ representatives to receive notice of accidents and dangerous occurrences (Article 13(2)(f)). The Committee also notes that the national legislation does not ensure that these rights can be exercised without discrimination or retaliation, in accordance with Article 13(4). The Committee requests the Government to provide information on the measures adopted in order to give effect to Article 13 (2) (e) and (f) and Article 13 (4) of the Convention.
Article 16. Resources of the inspection services. Application in practice. The Committee notes that the Regulations on Inspection Activity for Mining Resources and Energy, adopted by Decree No. 34 of 2019, establish the Inspectorate-General of Mining Resources and Energy (IGREME), which is responsible for inspection activities in the mining sector. The Committee requests the Government to provide information on the human and material resources allocated to the IGREME. It also requests the Government to provide statistical information on the number of inspections carried out, violations identified and penalties imposed.
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