Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee notes the Government’s report. The Committee also notes the comments made by the Confederation of Portuguese Industry on 31 May 2006 (with reference to Act No. 9 of 20 March 2006 limiting compulsory arbitration), the General Union of Workers (UGT) of 7 July 2006 and the Portuguese Confederation of Tourism of 7 July 2006 on the application of the Convention, and the Government’s reply to these comments.

1. Article 4 of the Convention. Compulsory arbitration. The Committee recalls that in its previous observation it referred to the new Labour Code which, in section 567, provides that “in disputes arising from the conclusion or revision of a collective labour agreement, recourse to arbitration may be compulsory where, after protracted and fruitless negotiations and the after the 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 Committee notes that, according to the Government, section 1 of Amendment Act No. 9/2006 provides that compulsory arbitration shall be admissible:

(a)   where one of the parties so requests; and, after hearing the Permanent Commission for Social Partnership, following lengthy and fruitless negotiations, after the breakdown of conciliation and mediation, where it has not been possible to resolve the dispute through voluntary arbitration, or due to the improper conduct of one of the parties;

(b)   following a majority vote by the representatives of the employers and the workers in the Permanent Commission for Social Partnership; or

(c)   at the initiative of the minister responsible for labour matters; after hearing the Permanent Commission for Social Partnership where essential services protecting the life, health and personal safety of the whole or part of the population are affected.

The Government adds that sections 429 and 430 of the Regulations of the Labour Code provide that the arbitration board shall gather together the parties before issuing an award with a view to endeavouring to help them reach an agreement and that up to now there have not been cases in which the parties have had recourse to compulsory arbitration.

In this respect, the Committee notes the statements made by the Government and observes that the Amendment Act constitutes progress towards greater conformity with the Convention. Nevertheless, the Committee considers that the hypothesis envisaged in subsection (b) of section 1 of the Amendment Act should be repealed, as in many cases it would mean that the decision to impose compulsory arbitration in a dispute would be taken by employers’ and workers’ organizations that are not parties to the dispute. The Committee requests the Government to provide in its next report any cases in which compulsory arbitration has been imposed by the authorities, with an indication of their circumstances.

The Committee welcomes the conclusion in January 2005 of an agreement by the social partners who are members of the Permanent Commission for Social Partnership to promote collective bargaining.

2. Representativity of organizations. The Committee notes the conclusions of the Committee on Freedom of Association in Case No. 2334 concerning the reference by name in the legislation to the trade union organizations members of the Economic and Social Council (CES) and the Permanent Commission for Social Partnership (CPCS), which implies that certain organizations that consider themselves to be representative are not included on these bodies, and the absence from the national legislation of objective criteria to determine the representativity of employers’ and workers’ organizations. In this respect, the Committee requests the Government, in consultation with the most representative organizations of employers and workers, to determine and establish objective, precise and predetermined criteria to evaluate the representativity and independence of employers’ and workers’ organizations and to amend the legislation so that it does not refer by name to the workers’ organizations which are to be members of the Economic and Social Council (CES) and the Permanent Commission for Social Partnership (CPCS). The Committee requests the Government to keep it informed of any legislative development in this respect.

The Committee is addressing a request directly to the Government on other matters.