Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

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

The Committee takes note of the information provided by the Government in its report, and recalls that its previous comments concerned the following provisions:

-- section 8 of Act No. 65/77 of 26 August 1977, as amended by Act No. 30/92 of 22 October 1992, concerning the power of the authorities to define by decree the minimum services that are to be maintained in the event of a strike;

-- section 385 of the Criminal Code, as amended by Legislative Decree No. 48/95 issued in March 1995, providing that a pubic servant who abandons his or her post illegally with the intention of harming or interrupting a public service, is liable to a term of imprisonment of up to one year, or of 120 days together with a fine.

With respect to section 8 of Act No. 65/77 of 26 August 1977, as amended by Act No. 30/92 of 22 October 1992, the Committee takes due note of the decision of the Constitutional Court, No. 868/96 of 4 July 1996, declaring unconstitutional paragraphs 2(g), 4, 5, 6, 7, 8 and 9 of section 8 concerning the power of the authorities to define by Decree the minimum services that are to be maintained in the event of a strike.

Concerning section 385 of the Criminal Code, as amended by Legislative Decree No. 48/95 issued in March 1995, the Committee takes note of the information provided by the Government in its report; however, the Committee again recalls that it accepts that the right to strike may be subject to restrictions, or even prohibition, in the public service or in essential services. The Committee considers, however, that the principle whereby the right to strike may be limited or even prohibited in the public service or in essential services would lose all meaning if legislation defined the public service 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, namely, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see the General Survey on freedom of association and collective bargaining, 1994, paragraphs 158 and 159). The Committee again requests the Government to amend section 385 of the Criminal Code in order to ensure that sanctions can be imposed for strikes only in cases where the prohibitions in question comply with the principles of freedom of association.