Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Portugal (Ratification: 1964)

The Committee notes the Government’s report and the comments of the General Confederation of Portuguese Workers (CGTP) and of the Confederation of Portuguese Industry (CIP) on the application of the Convention.

Article 4 of the Convention. The Committee has been referring for a number of years in its observations to section 35 of Decree No. 209/92, under which any of the parties to collective bargaining or the administrative authority or (in the case of public enterprises) the Economic and Social Council can submit disputes arising from the negotiation of a collective agreement to compulsory arbitration, particularly when no agreement is reached within two months. In this regard, the Committee observes that the Government reports the adoption of a new Labour Code, which amends the compulsory arbitration system. Currently section 567 of the new Code states that, in disputes arising from the conclusion or revision of a collective labour agreement, recourse to arbitration may be compulsory when, after protracted and fruitless negotiations and after conciliation and mediation procedures have been exhausted, the parties do not agree, within two further months after such procedures, to refer the dispute to voluntary arbitration. The Government emphasizes that the need for protracted and fruitless negotiations to have occurred is specifically covered in the abovementioned provision by three elements, namely, prior conciliation and mediation (which are free of charge for the parties); and the elapse of a period of two months after the end of mediation. The Government emphasizes that, as the Committee had requested, section 567 contains the possibility for negotiations to be resumed by stating that compulsory arbitration may be suspended, only once, at any time, subject to a joint request by the parties. The Government also indicates that the Labour Code regulations, which have been approved but have not yet been published, include a valuable element in favour of compulsory arbitration since the costs of voluntary arbitration are not covered by the State, while for compulsory arbitration 80 per cent of costs are borne by the State and only 20 per cent by the parties. Finally, the Government indicates that the abovementioned regulations provide for a final possibility of agreement before compulsory arbitration is initiated, since the first step which has to be taken by the arbitration board is to invite the parties to attempt to reach an agreement on the subject of the arbitration.

The CGTP maintains in its comments that the situation with respect to compulsory arbitration has not improved with the adoption of the new Code. On the contrary, it is of the opinion that the possibility of having recourse to compulsory arbitration is increasing given that section 570 provides for machinery for drawing up lists of arbitrators if these are not designated by the social partners, a situation which until now had prevented arbitration boards from being formed in practice. The CIP, for its part, agrees that the situation has not changed much with the new Code and emphasizes that the application of the provisions concerning compulsory arbitration should be restricted to exceptional situations in which the interests at stake and the social repercussions assume a high degree of importance.

The Committee notes the amendments to the Labour Code, which represent some improvement towards the full application of the Convention. Nevertheless, the Committee is bound to point out that under the Convention the promotion of collective bargaining must be given absolute priority and recourse to compulsory arbitration must be restricted to exceptional situations, particularly those involving essential services in the strict sense of the term (the interruption of which can endanger the life, health or safety of all or part of the population). The Committee requests the Government to provide information on the application of the new provisions in practice, indicating in particular in its next report the number of cases in which there has been recourse to compulsory arbitration, and to contemplate the adoption of measures needed to bring the legislation into full conformity with the Convention.

The Committee is addressing a direct request on certain other points to the Government.