Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

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

1. Power of the authorities to define by decree the minimum services to be maintained in the case of strikes. The Committee requests the Government to send it a copy of Decision No. 868/96 taken by the Constitutional Court on 4 July 1996, which appears to have declared as unconstitutional, with binding force, certain paragraphs of section 8 of Act No. 65/77 of 26 August 1977 (amended by Act No. 30/92 of 22 October 1992) concerning the power of the authorities to define by decree minimum services.

2. Right to strike of public servants. Furthermore, the Committee notes the provisions of section 385 of the Criminal Code, as amended by Legislative Decree No. 48/95 issued in March 1995, which provide that a public servant who leaves his post illegally with the intention of harming or interrupting a public service is liable to a prison sentence of up to one year's duration or a prison sentence of 120 days together with a fine. In this regard, the Committee recalls that it accepts that the right to strike may be subject to restrictions, or even prohibition, in the public or essential services. The Committee considers, however, that the principle whereby the right to strike may be limited or even prohibited in the public or essential services would lose all meaning, if legislation defined the public or essential services in too broad a manner. In the view of the Committee, the prohibition of the right to strike should be limited to public servants exercising authority in the name of the State or to strikes in essential services in the strict sense of the term, i.e. in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see paragraphs 158 and 159 of the General Survey on the freedom of association and collective bargaining, 1994). Consequently, the Committee requests the Government to amend the text of section 385 of the Criminal Code so as to ensure that penalties may only be imposed for strikes in cases where the prohibitions in question comply with the principles of freedom of association.