Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Night Work of Young Persons (Industry) Convention, 1919 (No. 6) - Portugal (Ratification: 1932)

The Committee notes the information supplied by the Government in its report. It also notes the observations made by the General Confederation of Portuguese Workers (CGTP), the General Union of Workers (UGT) and the Confederation of Trade and Services of Portugal (CCSP).

Articles 2 and 3 of the Convention. Employment of children in industrial undertakings. With reference to its previous comments, in which it pointed out that certain provisions concerning the night work of young persons contained in Legislative Decree No. 409 of 1971 were not in conformity with the Convention, the Committee notes that this Legislative Decree has been repealed by Act No. 99/2003 approving the Labour Code [hereinafter Labour Code], which now regulates the night work of young persons.

The Committee notes that section 65(1) of the Labour Code states that it is prohibited to employ a young person under 16 years of age between 8 p.m. and 7 a.m. It also notes that section 65(2) of the Code states that a young person aged 16 and over cannot work between 10 p.m. and 7 a.m. Moreover, under section 65(3) of the Code, a collective agreement may provide that a young person aged 16 or over may work at night in specific sectors of activity, except during the period between midnight and 5 a.m. Finally, section 65(4) of the Labour Code states that a young person aged 16 or over may work at night, including during the period between midnight and 5 a.m., in cultural, artistic, sporting or advertising activities, where there are objective grounds for doing so and on condition that he/she is granted a compensatory period of rest equal to the number of hours worked.

In its comments, the CGTP states that the national legislation is still not in conformity with the Convention. It authorizes the night work of young persons aged 16 and over in particular sectors of activity without specifying the sectors themselves. The use of this possibility might become a widespread habit in practice. The UGT, for its part, indicates in its comments that it is essential not to obscure the fact that very often the conditions in which night work is undertaken may jeopardize the physical and psychological development of young persons or their school attendance. Hence, night work must be strictly controlled in order to put children’s interests before economic interests. In addition, the UGT indicates that, in view of the fact that the Convention was adopted in 1919 and ratified by the Government in 1932, some of its provisions are somewhat obsolete. In addition, the CCSP thinks that the provisions of the Labour Code are in conformity with the Convention.

The Government acknowledges in its report that section 65(2) and (3) of the Labour Code of 2003 are not in conformity with the Convention. However, it indicates again that, although some provisions of the Convention were justified at the time it was adopted, they no longer reflect the current reality of the world of work. Changes in the organization of work now afford greater protection of safety and health, in particular for young workers. The Government also states that the provisions of the Labour Code on the night work of young persons comply with Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work. In addition, the Government recalls the decision taken by the Governing Body to revise Conventions Nos 6, 79 and 90 and hopes that this revision will take place.

While noting the information supplied by the Government, the Committee observes that the requirements of Directive 94/33/EC cannot release the State from its obligations under the Convention since the latter has not yet been revised. The Committee reminds the Government that, under Article 2, paragraph 1, of the Convention, young persons under 18 years of age shall not be employed during the night in any industrial undertaking, other than an undertaking in which only members of the same family are employed and in the cases listed in Article 2, paragraph 2. It also reminds the Government that Article 3, paragraph 1 states that the term “night” signifies a period of at least 11 consecutive hours, including the interval between 10 p.m. and 5 a.m. The Committee reminds the Government that it should take the necessary measures to bring the national legislation into conformity with the Convention on this point.

Part V of the report form. Application of the Convention in practice. The Committee notes the information supplied by the Government to the effect that, between June 2000 and May 2007, 20 serious contraventions of the legislation on the night work of young persons were reported and proceedings have been initiated. The Committee requests the Government to continue to supply information on the application of the Convention in practice, particularly by supplying statistics on the number and nature of contraventions reported, investigations, prosecutions, convictions and penalties imposed.