Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the Government’s reply to the comments from: (1) the General Workers’ Union (UGT) and the General Confederation of Portuguese Workers (CGTP) – annexed to the Government’s report; (2) the International Trade Union Confederation (ITUC) of 24 August 2010 and 4 August 2011; and (3) the Confederation of Portuguese Tourism (CTP), received on 22 September 2010. The Committee also notes, in connection with various comments made by the ITUC on 31 July 2012, that the Government requested further clarification to be able to send relevant observations (the Office wrote to the Government in this respect).

Article 4 of the Convention. Legal matters pending. Compulsory arbitration. In its previous comment, the Committee noted that section 508(1)(b) of the Labour Code as revised, provides for compulsory arbitration after a majority vote by the representatives of the workers and employers on the Standing Committee for Social Partnership (CPCS). The Committee requested the Government to look into the possibility of amending the section in question so as to preclude the decision to impose compulsory arbitration from being taken by employers’ and workers’ organizations that are not parties to the dispute. In this respect, the Committee notes the Government’s statement that it is not the workers’ and employers’ associations that impose compulsory arbitration. The fact that arbitration is recommended by the majority of representatives of the workers and employers, provided for under the section in question, is not binding, given that the decision to resort to compulsory arbitration does not arise out of the recommendation. Under section 509(1) of the Labour Code, recourse to compulsory arbitration is determined by an informed decision of the minister responsible for labour matters, taking into account the number of employers and workers affected by the dispute, the social protection of the workers concerned, the social and economic repercussions of the dispute and the position of the parties with respect to arbitration. The Committee recalls that any provisions stipulating that the authority might resort to arbitration in the event of parties to collective bargaining failing to reach agreement are not usually in compliance with the principle of voluntary negotiation contained in Article 4 of the Convention and that compulsory arbitration is only acceptable in the case of acute national or local crisis. The Committee requests the Government to take the necessary measures to guarantee the respect of the abovementioned principle.

Representativeness of organizations. The Committee had noted the conclusions of the Committee on Freedom of Association in Case No. 2334 which mentioned that the legislation: (1) cites by name the trade union organizations that are to form part of the Economic and Social Council (CES) and the CPCS, which means that some organizations that deem themselves representative are left out; and (2) does not lay down objective criteria for determining the representativeness of employers’ and workers’ organizations. The Committee had requested the Government, in consultation with the most representative organizations of employers and workers, to work out and lay down objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations, and to amend section 9 of Act No. 108/91 of the CES by deleting the names of the workers’ organizations that are to be members of the CES and the CPCS, referring instead to the most representative organizations. The Committee had noted the information sent by the Government to the effect that: (1) the president of the CES had taken the initiative of launching a general discussion on the composition of the CES with the cooperation of members; and (2) it was impossible to forecast the outcome of these discussions or the proposals and recommendations the president might make. The Committee notes that, according to the Government, there has been no change in this area. The Committee requests the Government once again to take the necessary measures to work out and lay down objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations that are part of the CES and the CPCS, and to amend section 9 of Act No. 108/91 of the Economic and Social Council on the lines it has proposed.

Furthermore, the Committee notes the CGTP’s statement, in connection with the impact of the financial crisis on the trade unions, that Act No. 23/2012 of 25 June 2012 amends a number of sections of the Labour Code. It entered into effect on 1 August 2012 and cut pay and cash benefits in the state enterprises, even when these had been applied under collective agreement. The Government explained that the cut applied to salaries exceeding €1,500 and was an attempt to consolidate the state finances in the prevailing economic crisis; this salary reduction was declared constitutional by the Constitutional Court. The Committee would like to stress, in general, the importance it attaches to full compliance with collective agreements in force and, taking into account the Government’s statements concerning the economic crisis, would like to refer to the principles in its General Survey of this year on this matter. Finally, a number of trade union organizations complain about the reduction in the number of collective agreements. The Committee notes that the Government connects this fact with the economic crisis.