Comments adopted by the CEACR: Guinea-Bissau

Adopted by the CEACR in 2021

C017 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Articles 1 and 2 of the Convention. Scope of coverage. (i) Workers in the informal economy. In its previous comments, the Committee hoped that the Government would progress in the implementation of the non-contributory social security scheme in accordance with Act No. 4/2007 through the adoption of new regulations, to enable workers in the informal economy to benefit from compensation in cases of occupational accident or disease. The Committee notes that in its last report on the Workmen’s Compensation (Agriculture) Convention, 1921 (No. 12), the Workmen’s Compensation (Occupational Diseases) Convention, 1925 (No. 18) and the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), the Government provides information on the implementation of the voluntary scheme through the entry into force of the Regulations on voluntary contributions to the social security system, pursuant to Decree No. 6 of 2012, which gives the possibility to workers in the informal economy to affiliate themselves with the social security system. The Committee further notes that, according to the Government, the implementation of these provisions has resulted in the extension of the protection provided in case of employment injury to an additional number of workers including, notably, women working in the informal economy.

The Committee requests the Government to provide information on the modalities governing the voluntary affiliation of workers and the financing of benefits pursuant to Decree No. 6 of 2012 and on the measures taken to ensure its effective implementation, together with a copy of the Decree. The Committee further requests the Government to provide statistical information on the number of workers who have registered with the social security system on a voluntary basis. With regard to the protection of workers in the informal economy who are not affiliated against work-related accidents, the Committee hopes that the Government will take the necessary measures to implement the non-contributory social security scheme in accordance with Act No. 4/2007 and requests the Government to keep it informed of progress made in this regard.

(ii) Coverage of domestic workers. With reference to its previous comments on the need to ensure the protection of domestic workers against occupational accidents, the Committee notes with interest that, pursuant to article 21 of Book I and to Section IV of Book II of the new Labour Code, adopted in July 2021, domestic workers are now included in the scope of coverage of the Labour Code. The Committee further notes that the new Labour Code establishes the duty of employers to affiliate their employees with social security (article 49 (2) (e)), to transfer the responsibility for the compensation of employment injuries suffered by their domestic workers to an authorized insurer (article 298 (3)) and to compensate employees for damages suffered as a result of an accident at work or occupational disease, when this responsibility has not been transferred to an insurer (article 49(2)(f)).

The Committee requests the Government to confirm that domestic workers who suffer personal injury due to a work accident, or their dependents, in case of death, will be guaranteed compensation and afforded medical care, by application of the new Labour Code. The Committee also requests the Government to provide information on the means taken for the implementation of article 49 (2) (e) of the new Labour Code with a view to ensuring the effective coverage of domestic workers for work-related injuries.

Article 5. Compensation in the form of a lump sum. In its previous comments, the Committee noted that, in practice, compensation for work-related accidents could be paid wholly as a lump sum, and requested the Government to provide information on the measures taken to ensure that, when compensation for an occupational accident is granted in the form of a lump sum, an authority guarantees the proper utilization of the funds in accordance with Article 5 of the Convention.

The Committee notes the information provided by the Government in its report on the procedure and process for the granting and payment of the lump sum, for which the National Social Security Institute (INSS) is competent. The Committee however notes that, according to the Government, the INSS requires no guarantee of the proper utilization of the lump sum payment.

The Committee requests the Government to take the necessary measures to either ensure that (i) the compensation payable to the injured workers, or to their dependents, where permanent incapacity or death results from the injury, is paid in the form of periodical payments, or, when it is paid as a lump sum, (ii) that it is accompanied by sufficient guarantees for the competent authority to be satisfied that it will be properly utilized, in conformity with Article 5 of the Convention.

The Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group (SRM Tripartite Working Group), the Governing Body has decided that Member States for which Convention No. 17 is 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), accepting its Part VI (see GB.328/LILS/2/1). Conventions Nos 121 and 102 reflect the more modern approach to employment injury benefits. The Committee takes note of the information provided by the Government in the regard, and 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 this subject area.

C026 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Legislative developments. The Committee notes the inclusion, in the Government’s report, of a copy of the new Labour Code, adopted by the Peoples’ National Assembly in July 2021. The Committee also notes that sections 153 and 154 of the copy of the new Labour Code provide, among other matters, that the minimum wage shall be payable to all workers, including rural workers, without distinction based on sex or any other grounds, in an amount fixed annually by the Government, after consultation with the social partners. The Government indicates that after its promulgation, the new Labour Code will revoke the General Labour Act No. 2/86. The Committee requests the Government to provide a copy of the promulgated and published version of the new Labour Code.

Article 3 of the Convention. Operation of the minimum wage-fixing machinery. In its previous comments, noting that the latest decree fixing the minimum wage had been adopted in 1988 (Decree No. 17/88 of 4 April 1988), the Committee requested the Government to adopt the necessary measures without delay to fix the minimum wage in application of sections 110 and 114 of the General Labour Act No. 2/86, and to provide information on any examination of the matter and on consultations held with the social partners. The Committee notes the Government’s indication that Decree No. 17/88 has been subject to successive amendments. The Committee also notes the Government’s indication that in 2012 and 2017 the minimum wage in the public service was readjusted by government ordinance. The Committee observes, with regard to the categories included in the application of Decree No. 17/88, which exclude the public service, that the Government makes no reference to ordinances recently fixing new minimum wage rates. The Committee further notes the Government’s indication that no examination on the fixing of the national minimum wage rate has been undertaken to date, but that the Prime Minister’s Ordinance of 9 June 2021 established a multidisciplinary commission, including trade union representatives, to conduct an analysis of the current level of inflation and to propose a national minimum wage. The Committee strongly hopes that the Government will take the necessary measures, based on proposals from the abovementioned commission, to fix an updated minimum wage as soon as possible, after consultation with the representative organizations of employers and workers, in application of the legislation in force. The Committee requests the Government to provide information in this regard.

[The Government is asked to reply in full to the present comments in 2022.]

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

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Sufficiently dissuasive penalties. The Committee had noted the observations of the International Trade Union Confederation (ITUC) pointing to the inadequate provisions in the General Labour Act regarding protection against anti-union discrimination, as well as the observations of the National Workers Union of Guinea (UNGT-CS) referring to the need to strengthen the capacity of the general labour inspectorate and the courts to enforce the labour legislation. Noting the Government’s indication that progress needed to be made in this regard, the Committee requested the Government to take all necessary measures to reinforce protection mechanisms against acts of anti-union discrimination. The Committee notes the Government’s indication that the new Labour Code contains various provisions on protection against acts of anti-union discrimination. At the same time, the Committee notes the Government’s indication that no measures have been taken to reinforce protection mechanisms against acts of anti-union discrimination, while stating that it has noted the Committee’s recommendations and will communicate additional information when measures have been taken in this area. The Committee observes in this regard that although the Labour Code provides a special protection for workers’ representatives against acts of anti-union discrimination, with penalties that could be sufficiently dissuasive, such as reintegration and/or compensation (sections 398, 401 and 402), the Code does not precisely define penalties to be imposed in case of anti-union discrimination against other workers. The Committee also observes that section 48(2) of the Freedom of Association Act (Law No. 08/91) provides for fines of between 100,000.00 PG and 1,000,000.00 PG (the approximate equivalent of US$2.64 to US$26.37) in cases of anti-union discrimination, the very low amount of which cannot be considered a sufficiently dissuasive penalty. Recalling the importance of effective and rapid procedures and sufficiently dissuasive sanctions to prevent and redress all acts of anti-union discrimination, the Committee requests the Government to specify which protection mechanisms and penalties are applicable, by virtue of the new Labour Code or any other legal provision, in case of anti-union discrimination against any worker arising from his or her union affiliation or participation in union activities. In the event of section 48(2) of Act No. 8/91 remaining the applicable provision, the Committee requests the Government to take the necessary measures to amend this section so as to increase the amounts of the fines imposed to a level adequate to constitute a sufficiently dissuasive penalty against acts of anti-union discrimination.

Article 2. Adequate protection against acts of interference. Sufficiently dissuasive penalties. The Committee welcomes the fact that section 445 of the new Labour Code explicitly prohibits all the acts of anti-union interference covered in Article 2 of the Convention. The Committee notes however that the Code does not provide precise definitions of the applicable penalties. It also observes that section 48(1) of the Freedom of Association Act (Law No. 8/91) provides for a fine of between 250,000.00 PG and 2,500,000.00 PG (the approximate equivalent of US$6.59 to US$65.91 for violations of section 5(1) and (2) of this law, which prohibit acts of anti-union interference. In this regard, the Committee considers that the amount of this fine does not represent a sufficiently dissuasive penalty. The Committee requests the Government to specify the penalties, under the new Labour Code or any other legal provision, which are applicable in case of anti-union interference. In the event of section 48(1) of Act No. 8/91 remaining the applicable provision, the Committee requests the Government to take the necessary measures to amend this section so as to increase the amounts of the fines imposed to a level adequate to constitute a sufficiently dissuasive penalty against acts of anti-union interference.

Article 4. Promotion of collective bargaining. Compulsory arbitration. The Committee observes that section 496 of the new Labour Code foresees various situations where, within the framework of collective bargaining, compulsory arbitration may be requested by one of the parties or imposed by the authorities. The Committee recalls in this regard that compulsory arbitration in the framework of collective bargaining is only acceptable for public servants engaged in the administration of the State (Article 6 of the Convention), in essential services in the strict sense of the term (services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) and in situations of acute national crisis. On this basis, the Committee requests the Government to provide information on: (i) the definition of essential services mentioned in section 496(c); and the implementation in practice of the different paragraphs of the same section.

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

The Committee notes the Government’s indication that the new Labour Code was adopted by the National Assembly in July 2021 and is awaiting promulgation by the President of the Republic. Once promulgated, the Labour Code will repeal the General Labour Act No. 2/86.

Scope of the Convention. Categories of workers. For several years now, the Committee has been asking the Government to communicate information on the status of the draft legislation regarding the guarantee of the rights protected by the Convention to agricultural and dockworkers. The Committee noted the Government’s indication that these matters were adequately addressed in the new Labour Code under approval. The Committee notes the Government’s indication that agricultural and dockworkers are covered by the new Labour Code, However, it observes, according to section 21 of the new legislation, that the following are subject to a special regime, without prejudice to the application of the general provisions of the Code which are not incompatible with the special regimes: employment contracts issued for (a) domestic work; (b) group employment; (c) apprenticeship or training; (d) work on board commercial and fishing vessels; (e) work on board aircraft; (f) dock work; (g) rural work; and (h) work performed by foreigners. In this regard, the Committee observes that the general provisions of the Labour Code in respect of freedom of association and collective bargaining (sections 395, 396 and 397) cover only the right to establish trade union organizations, their autonomy and independence, and the prohibition of anti-union discrimination. Emphasizing all workers, with the sole exception of members of the armed forces and the police, as well as public servants engaged in the administration of the State must have access to all the rights guaranteed by the Convention and, in particular, the right to collective bargaining, the Committee requests the Government to indicate in what manner the special regimes for the different categories of workers mentioned above regulate their collective rights.

Articles 4 and 6. Collective bargaining rights of public servants not engaged in the administration of the State. In its previous comments, the Committee also requested the Government to provide information on measures taken to adopt special legislation which, under section 2(2) of Act No. 08/91 on freedom of association, was to regulate the right to collective bargaining of public servants who are not engaged in the administration of the State. The Committee notes the Government’s indication that the public servants who do not exercise functions directly connected to the administration of the State are also protected by the provisions of the new Labour Code. The Committee observes, in the regard, that while section 2 of the Labour Code indicates the provisions of the Code applicable to the legal relationship in public employment, without prejudice to the provisions of the special legislation, the right to collective bargaining is not included in these provisions. In the absence of other information brought to its attention, the Committee requests the Government to specify the provisions or mechanisms whereby the different categories of public servants not engaged in the administration of the State my negotiate their working conditions and terms of employment and to provide information on the different agreements signed with the public employees’ and servants’ organizations.

Article 4. Promotion of collective bargaining. Procedures for extending collective agreements. The Committee observes that section 503 of the new Labour Code provides that the member of the Government responsible for the area of work may, by means of regulations, determine the entire or partial extension of collective labour agreements to employers of the same sector of activity and to workers of the same or a similar occupation. Recalling that the request to extend a collective agreement must, as a general rule, be made by one or more employers and workers organizations which are party to the collective agreement, the Committee requests the Government to take the necessary measures to modify the legislation to ensure that the extension of collective agreements are subject to tripartite consultations (even where they provide, as is the case in section 504 of the Labour Code, that the parties affected by the application of an extended collective agreement may submit an objection to the draft extension regulation).

Promotion of collective bargaining in practice. In its previous comments, the Committee requested the Government to provide information on the number of new collective agreements signed and on the number of workers covered by them. The Committee notes the Government’s indication that, to date, it does not have this information at its disposal, but that it will provide it as soon as it is available. Emphasizing the importance of having available statistical data in order to be able to evaluate more accurately the need to promote collective bargaining, the Committee hopes that the Government will soon be in a position to indicate the number of collective agreements concluded, the sectors covered and the number of workers concerned.

The Committee is raising other matters in a request addressed directly to the Government.