Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Portugal (Ratification: 1977)

The Committee takes note of the Government's report and the enclosed documents.

Articles 2 and 5 of the Convention. In its previous direct request, the Committee asked the Government to amend its legislation so as to bring it into conformity with the Convention and also with practice because, according to earlier information from the Government, following the statement made by the public prosecutor which was approved by the Minister of Labour in an Order of 6 November 1979, the provisions requiring too high a number of workers and employers for the creation of organisations have been pronounced unconstitutional and are no longer applied.

The provisions in question provide for too high a number required for the establishment of workers' or employers' organisations (10 per cent or 2,000 of the workers concerned (section 8.2 of Legislative Decree No. 215/B/75) and one-quarter of the employers concerned (section 7(2) of Legislative Decree No. 215/C/75)) and of groups or federations (one-third of the trade unions of a region or category (section 8(3) of Legislative Decree No. 215/B/75), and 30 per cent of employers' associations (section 7(3) of Legislative Decree No. 215/C/75)).

The Committee notes from the Government's report that the suggestions made by the Committee of Experts will be taken into consideration in preparing the Bill on trade unions.

The Committee therefore calls the attention of the Government yet again to the importance it attaches to the right of workers and employers to establish organisations of their own choosing and to the right of occupational organisations to form federations and confederations in full freedom. It observes, in particular, as it has indicated in its 1983 General Survey on Freedom of Association and Collective Bargaining, that legislation laying down too high a number of members for the establishment of a union, or unions for the establishment of a federation, should be amended to ensure that the numbers in question are limited to a reasonable level, so as to avoid hampering the formation of the organisations (see paragraph 123 of the General Survey). In the opinion of the Committee, legislation that required, for example, fewer than 50 workers for the establishment of a union would be compatible with the provisions of the Convention.

However, the Convention places no obstacle in the way of a distinction being made between the most representative union and the others, provided that this distinction is limited to the recognition of certain rights - principally in regard to representation for the purposes of collective bargaining, consultation by governments, or designating representatives to international organisations, to the most representative trade unions, determined in accordance with objective and pre-established criteria. In any event, however, minority organisations should be allowed to function and at least to have the right to make representations on behalf of their members and to represent them in cases of individual grievances (see paragraph 141 of the General Survey).

The Committee again requests the Government, in its next report, to provide information on the measures taken to bring its legislation into conformity with the Convention and to provide a copy of any draft legislation drawn up to this end.