Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes the comments made by the Confederation of Portuguese Industry (CIP) on 17 July 2008, and by the General Union of Workers (UGT) on 11 August 2008, on the application of the Convention. The Committee also notes the comments made by the General Confederation of Portuguese Workers (CGTP) on matters which have already been dealt with.

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 agreement, recourse to arbitration may be compulsory where, 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 Committee notes that the CIP criticises this provision and considers it to be contrary to the principle of voluntary and free negotiation enshrined in the Convention. The Committee duly notes the Government’s indication that, since the introduction of compulsory arbitration in Portuguese legislation in 1992, there have been no cases of compulsory arbitration. The Committee recalls that compulsory arbitration is an acceptable means of ending a collective labour dispute when it is at the request of the two parties or when the dispute involves public servants exercising authority in the name of the State or employed in essential services in the strict sense of the term, namely services the interruption of which might endanger the life, health or safety of all or part of the population. The Committee therefore requests the Government to take the necessary measures to align the legislation and the existing practice in the country with the above principle.

Representativity of organizations. The Committee had asked 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 (Act No. 108/91 of the Economic and Social Council (CES), section 9, concerning the Permanent Commission for Social Partnership (CPCS)), so that it does not refer by name to the workers’ organizations which are to be members of the CES and the CPCS. The Committee notes the information from the Government that it suggested to the social partners within the CPCS to agree on permanent criteria for determining representativity, in April 2008, but, in the absence of any such agreement, they decided to postpone dealing with this matter. The Committee considers that the legislation should be amended so that it does not refer by name to the workers’ organizations which are to be members of the CES and the CPCS, in order to avoid the exclusion of certain representative organizations from these bodies in the future. Furthermore, the Committee considers that legislative measures should be taken to determine and establish objective, precise and predetermined criteria to evaluate the representativity and independence of employers’ and workers’ organizations.

The Committee hopes that the CPCS will examine these questions with a view to legislative reform and requests the Government to indicate any developments in this regard.