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

Night Work Convention, 1990 (No. 171) - Portugal (Ratification: 1995)

The Committee notes the information supplied by the Government in its first report.

The Committee notes the comments of the General Confederation of Portuguese Workers (CGTP), mentioned as annexes to the Government's report.

The Committee notes that a Bill is being prepared to incorporate in the legislation the provisions of the European Union Directive 93/104/CE of 23 November 1993 concerning certain aspects of the organization of working time, which have not yet been included in the national legal system.

It also notes the Government's statement that the above Bill will include rules to ensure implementation of the parts of the Convention not yet covered by the legislation, and will include the notion of night work in terms which meet the purposes of the Directive and the Convention. The Committee asks the Government to take the necessary steps, while the Bill is being drafted, to bring the legislation into conformity with the Convention, and to keep it informed of progress made in this respect.

Article 1 of the Convention. The Committee notes that, according to the Government's report, the concept "night work" shall refer to work performed during a period of not more than 11 hours and not less than seven hours, and which must in all cases include the interval from midnight to 5 a.m. The Committee asks the Government to refer to the provisions of Article 1(a) of the Convention, in which the term "night work" means all work performed during a period of not less than seven consecutive hours, including the interval from midnight to 5 a.m. The Committee also notes that, according to the Government's report, neither the legislation nor collective agreements mention the term "night worker". It asks the Government to refer to the provisions of Article 1(b) of the Convention in which the term "night worker" means an employed person whose work requires the performance of a substantial number of hours of night work which exceeds a specified limit.

The Committee asks the Government to take the necessary measures to bring its legislation into conformity with the Convention and to provide information on the procedures followed for consulting employers' and workers' organizations as required by the Convention, and on progress made in this respect.

Article 2. The Committee notes the provisions of sections 1(2), 1(3), 3(2) and 4 of Legislative Decree No. 409/71 of 27 September 1971 respecting working time, and the provisions of section 1 of Legislative Decree No. 349/73 of 11 July 1973 respecting the definition of the activities referred to in Legislative Decree No. 348/73 under which certain categories of night workers are excluded. The Committee observes that the Government's report makes no reference to such exclusions. It asks the Government to provide full information on the exclusion of worker from the application of the Convention and the reasons for their exclusion.

Article 3. The Committee notes that, according to the Government's report, no legislative measures have been taken to meet the requirements of this Article of the Convention, other than those taken in the context of Conventions Nos. 103 and 156. The Committee recalls that the measures provided for in paragraph 1 of this Article may be applied progressively. The Committee asks the Government to take the necessary steps to bring the legislation into conformity with the Convention and to provide information on progress made in this respect.

Article 4. The Committee notes the provisions on workers' health assessment contained in section 34(1) and (2) of Legislative Decree No. 409/71 and section 16(1) and (2) of Legislative Decree No. 26/94 of 1 February 1994 (as amended by Act No. 7/95 of 29 March 1994) respecting occupational safety and health services. It asks the Government to provide additional information on the right of workers to undergo a health assessment if they experience health problems during their assignment, which are related to night work. This information should also cover the right to receive advice on how to reduce or avoid health problems associated with their work and to undergo a health assessment without charge.

Article 5. The Committee notes the provisions on first aid and the principles of prevention contained in sections 2 and 8 of Legislative Decree No. 441/91 of 14 November 1991 respecting occupational safety and health and section 26(1) of Legislative Decree No. 360/71 of 21 August 1991 regulating Act No. 2127 of 3 August 1965 respecting occupational accidents and diseases.

The Committee asks the Government to provide additional information so that it can ascertain whether the situation of workers performing night work is included in the measures taken pursuant to the above-mentioned provisions.

Article 6, paragraph 1. The Committee notes the Government's statement that the provisions of this Article of the Convention are not covered by the legislation, but that collective agreements quite frequently include clauses providing that in certain conditions workers performing night work may be transferred to a day shift. Furthermore, the Committee notes the content of the Bill being drafted to ensure application of the Convention. It asks the Government to take the necessary measures to bring the legislation into conformity with the Convention so as to eliminate any ambiguity in this respect.

Paragraphs 2 and 3. The Committee notes that, according to the Government's report, no specific provision is made to protect a worker who is unfit for night work regardless of his fitness to perform work during the day.

The Committee asks the Government to provide information on the application of the Convention in this respect.

Article 7, paragraph 3(c). The Committee notes the provisions concerning the protection of these entitlements for female workers contained in section 18(1) of Legislative Decree No. 4/84 (as amended by Act No. 17/95) respecting maternity protection. The Committee asks the Government to provide information on the protection of women workers who have been transferred to daywork, particularly with regard to benefits regarding status, seniority and access to promotion which may attach to their regular night work position.

Article 8. The Committee notes the provisions of section 30 of Legislative Decree No. 409/71 under which remuneration for night work must be 25 per cent higher than the remuneration set for equivalent work performed during the day. The Committee observes that, according to the provisions of Legislative Decree No. 343/73, the compensation provided for in section 30 of Legislative Decree No. 409/71 does not apply to the entertainment industry, the hotel and related industries and pharmacies. The Committee asks the Government to provide detailed information on these exclusions.

Article 9. The Committee notes the Government's statement that the law does not contain any provision concerning appropriate social services, but that there are collective agreements establishing the provision of services such as those prescribed in this Article. It also notes that, according to the Government's report, the Bill now being drafted will provide for appropriate social services for night workers and, where necessary, for workers performing night work. The Committee asks the Government to take the necessary steps to bring the legislation into conformity with the Convention in this respect.

Article 10, paragraph 1. The Committee notes the provisions of section 24, paragraph 1(f), of Act No. 46/79 under which changes in work schedules applying to all or some of the workers of the enterprise (and, consequently, night work schedules) are subject to the prior opinion of the workers' committee. It also notes the provisions of section 9, paragraph 3, of Legislative Decree No. 441/91 concerning the obligation to consult workers' representatives on occupational safety and health measures. It asks the Government to provide further particulars of the organization of night work in accordance with the provisions of paragraph 1 of this Article.

Article 11. The Committee notes the Government's statement that the provisions of the Convention are applied through the legislation and collective agreements. The Committee notes from the Government's report that legislative measures have not been adopted with regard to the application of Articles 3, 6 and 9 of the Convention. It also notes from the Government's report that the Bill being drafted will revise the existing provisions with regard to Articles 1, 4 and 6 of the Convention. The Committee asks the Government to take the necessary measures to bring the legislation into conformity with all provisions of the Convention and to inform it of progress in this respect.