Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Labour Inspection Convention, 1947 (No. 81) - Cabo Verde (Ratification: 1979)

Articles 3(1)(a), 4, 7, 10, 11 and 21(b) and (c) of the Convention. Structure of the labour inspectorate and adaptation of the human resources, material means and means of transport available to the needs in the field of labour inspection. Referring to its previous comments, the Committee notes the Government’s indication that the branch of the inspectorate located in Sal, whose jurisdiction covers the islands of Sal (previously covered by the Sotavento branch) and Boa Vista (previously covered by the Barlavento branch), will become operational in the second half of 2102. It also notes that seven inspectors are operational in the Sotavento branch, another five in the Barlavento branch, and that seven persons divided between the two branches are performing administrative tasks and that labour inspectors have the use of three vehicles for their duty travel, with two assigned to the Sotavento branch and one assigned to the Barlavento branch.

The Committee further notes that, according to the information provided in the Government’s 2011 report relating to the Occupational Safety and Health Convention, 1981 (No. 155), the inspection team has just been reinforced with 13 inspectors, who have all received initial training. The Committee understands, according to the information provided by the Government, that it is also planned to establish three new inspection services. The Committee notes with interest that, according to section 16 of the new regulations of the General Labour Inspectorate, workplaces liable to inspection by the General Labour Inspectorate must send information, before the start of their operations, on the branch of activity, the address of the workplace concerned and the number of workers employed therein. The Committee requests the Government to send information with its next report on the number of workplaces liable to inspection and the number of workers employed therein. It also requests the Government to provide information on changes in the number of labour inspectors in service and to indicate how many of them undertake inspections in workplaces, and also their geographical distribution. The Committee further requests the Government to provide details of office equipment for the labour inspection services and on the reimbursement of labour inspectors for travel expenses incurred in the performance of their duties.

Article 3(2). Additional duties of labour inspectors. In its previous comments the Committee noted that, according to section 387(1) of the Labour Code, in the event of a dispute between an employer and a worker, the labour inspectorate attempts conciliation between the parties, and it asked the Government to indicate the measures taken to ensure that any conciliation or mediation duties undertaken by labour inspectors in the event of a dispute between an employer and a worker do not interfere with the discharge of their primary duties. The Committee also asked the Government to give details of the proportion of conciliation and mediation activities within the duties of inspection and provision of information to workers and employers during the period covered by the next report. The Government indicates that, further to a drafting error, the labour inspectorate was assigned conciliation and mediation duties under the terms of the abovementioned section. This error was corrected through the corresponding authorization issued in accordance with Act No. 60/VII/2010 of 19 April 2010. Consequently, the amended text should read that it is the Directorate-General of Labour, and not the labour inspectorate, which has responsibility for promoting conciliation between the parties.

Articles 3(1)(a) and (b), 16, 17 and 18. Prosecution and penalization of infringements. The Government indicates in its report that greater attention was given in 2011 to the education and guidance functions of the labour inspectorate, providing technical information and advice for employers and workers both inside and outside workplaces, in order to raise the awareness of the social partners with regard to the most effective manner of applying the legal provisions relating to the improvement of conditions of work and the elimination of risks likely to cause industrial accidents. The Committee further notes that the highest infringements in 2011 were found in the commerce and catering sectors. Persistent offences were also noted on the part of small commercial enterprises in relation to the obligation of registering workers with social security institutions and the payment of compulsory industrial accident insurance, and in relation to hours of work. The Committee requests the Government to provide statistics on the technical information and advice activities undertaken by the labour inspectorate during the period covered by its next report with regard to workplaces liable to inspection under the terms of the Convention, indicating the type of workplace, the subject dealt with, the location of the work, and also on inspections undertaken by the labour inspectorate in workplaces of the same type. It also requests the Government to provide separate information on inspections aimed at enforcing the abovementioned obligations and the application of the relevant provisions on social security and hours of work, indicating the infringements recorded and the measures taken by labour inspectors. The Committee also requests the Government to indicate whether other measures have been taken or are contemplated to take corrective action against the trend of non-compliance with the obligations relating to social security and hours of work in small commercial enterprises, as mentioned by the Government in its report.

The Committee notes that, under section 12(3) of the new regulations of the General Labour Inspectorate, with a view to providing education and guidance through the actions of the General Labour Inspectorate and in accordance with the general guidelines issued by the inspector-general of labour, where infringements are detected, the labour inspector must always issue a warning notice establishing a deadline for corrective action to be taken and send the notice to his hierarchical superior. In the event of non-compliance with the deadline that has been fixed, the relevant infringement procedure applies, in conformity with the regulations and the legislation (section 13 of the regulations). It further notes that, according to section 23 of the regulations, where inspectors in the performance of their duties confirm or observe directly or personally, even if not immediately, infringements of the legislation, the enforcement of which comes within the competence of the General Labour Inspectorate, they must establish an infringement report. However, the Committee notes that, according to section 404(1) of the Labour Code, labour inspectors may simply issue a warning indicating the infringement, the recommended measures and the deadline for implementing them in cases where the infringement consists of an irregularity which can be easily remedied and has not been immediately detrimental to the workers, the labour administration or the social security system.

The Committee recalls that, under the terms of Article 17(1) of the Convention, persons who violate or neglect to observe legal provisions shall be liable to prompt legal proceedings without previous warning. However, exceptions may be made by national laws or regulations in respect of cases in which previous notice to carry out remedial or preventive measures is to be given. The Committee also emphasizes, as it did in paragraph 282 of the 2006 General Survey on labour inspection, that violations may be the result of failure to understand the terms or scope of the applicable laws or regulations. Therefore the labour inspector must always have discretion to choose not to impose penalties as a means of enforcing legal provisions. Hence Article 17(2) of the Convention states that it shall be left to the discretion of labour inspectors to give warnings and advice instead of instituting or recommending proceedings. The Committee requests the Government to clarify the procedure to be followed in cases of infringements of the legal provisions whose enforcement is the responsibility of labour inspectors. It requests the Government to take steps to ensure that the national legislation in this field is harmonized and to keep the ILO informed of any developments in this respect.

Article 5(a) Cooperation between the inspection services and other services and the carrying of firearms by labour inspectors. The Committee notes that, according to section 33 of the new regulations of the General Labour Inspectorate, labour inspectors are authorized to possess, carry and use a firearm, in accordance with the legislation applicable to police officers, without any authorization other than their official labour inspector’s pass. The Committee also notes that section 31(2)(i) of the regulations establishes the right for labour inspectors to request the cooperation of the police where this proves necessary for the performance of their duties, particularly in cases where inspection activities are obstructed. The Committee emphasizes that measures which assist the safe performance of labour inspection functions should enable labour inspectors to continue to fully discharge their education and prevention role with regard to employers and workers, so as to enlist their support for the economic and social objectives of labour inspection. It wishes to express its reservations regarding the opportunity of giving inspectors the right to carry firearms during the performance of their duties, even if such a right is subordinated to the requisite technical capacity and psychological aptitude. The implementation of such a measure must be considered with extreme caution to prevent the inspection mission from being confused with the police function. While supporting the measures aimed at strengthening the authority and security of inspection staff, the Committee considers that the carrying of firearms should be strictly limited to exceptional cases and circumstances in which no other means are available. The Committee requests the Government to explain the reasons that might justify such a provision. It also requests the Government to indicate the number of inspectors concerned and to provide information on the cases in which they might have been obliged to make use of firearms.

Article 13. Prevention in terms of occupational safety and health in high-risk activities. As regards occupational safety and health, the Committee notes that section 14(1)(b) of the new regulations of the General Labour Inspectorate provides that the General Labour Inspectorate is responsible for ordering measures with immediate executory force in the event of imminent danger to the life, health or safety of the workers. These measures should be the subject of a report from the labour inspector concerned, and this must be sent as a matter of urgency to the hierarchical superior for confirmation (section 14(3) of the regulations). The Committee requests the Government to provide information on the measures taken pursuant to section 14(3) of the abovementioned regulations and to send a copy of any relevant legislative texts to the ILO.

The Committee notes the information to the effect that 71 per cent of the 202 industrial accidents recorded in 2011 occurred in the construction sector, 18.81 per cent in industry and 18.32 per cent in the metallurgical industry. It further notes the Government’s indication that the General Labour Inspectorate has established partnerships and undertaken collaboration useful for the prevention of risks in the construction sector. The Committee notes in particular that a protocol was signed with the Cape Verde Association of Construction Companies (ACEC) with a view to implementing training activities for promoting occupational safety, hygiene and health in the sector and equipping technicians with skills in that field. The Government indicates that a five-day training course was given to members of ACEC. It also declares that training activities were held for members of the two municipal councils of the island of São Nicolau. The Committee further notes that, under the terms of section 396(2) of the Labour Code, the General Labour Inspectorate must exercise particular vigilance with regard to activities in which industrial accidents are more frequent or more serious. The Committee requests the Government to provide statistics on industrial accidents and cases of occupational disease occurring in the construction sector during the period covered by the Government’s next report, and on inspections conducted in workplaces in the sector targeting occupational safety and health conditions, and the results thereof, including any measures with immediate executory force ordered by labour inspectors. The Committee also requests the Government to provide information on the impact of actions implemented in partnership with the ACEC on the stated objective, and on any other measures taken or contemplated pursuant to section 396(2) of the Labour Code.

Articles 18 and 21(e). Adequate and effectively enforced penalties for the obstruction of labour inspectors. The Committee recalls that, under the terms of Article 18 of the Convention, adequate penalties for violations of the legal provisions enforceable by labour inspectors and for obstructing labour inspectors in the performance of their duties must be provided for by national laws or regulations and effectively enforced. The Committee notes that penalties for violations of the provisions of the Labour Code are established by sections 405–415 of that Code. It also notes that penalties for infringements which are not specifically covered by other provisions are established by section 27 of the new regulations of the General Labour Inspectorate. The Committee requests the Government to send with its next report statistics of the violations committed during the period covered by that report, including with regard to the obstruction of labour inspectors in the performance of their duties (indicating the relevant legislative provisions), and the penalties imposed.