Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Portugal (Ratification: 1977)

Observations from trade union organizations. The Committee notes the 2013 observations from the General Union of Workers (UGT) and the International Trade Union Confederation (ITUC) dealing mainly with the determination of minimum services in the event of a strike in public utilities and also the Government’s reply concerning this matter. The Committee further notes the 2013 observations from the General Confederation of Portuguese Workers – National Trade Unions (CGTP–IN) alleging that: (a) section 8 of Act No. 7/2009, which obliges existing trade unions to revise their rules within three years to bring them into line with the new provisions of the Labour Code or otherwise face being dissolved, violates trade union autonomy; and (b) section 447 of the Labour Code, which relates to the registration of trade unions and provides that the competent departments of the Ministry of Labour can give a deadline of six months to trade unions to amend their constitutions if they discover provisions which are contrary to the legislation, has the effect of establishing prior verification of the legality of union constitutions by the labour administration. The Committee notes the Government’s reply indicating that, under Act No. 7/2009, trade union organizations can adopt their constitutions in full freedom and the latter are registered and published even if they contain irregular provisions and, in addition, that intervention by the labour administration (under both section 8 of the Act of 2009 and section 447 of the Labour Code) in relation to the legality of union constitutions is restricted to sending a non-binding opinion to the Public Prosecutor’s Office, which can decide whether or not to call for the judicial invalidation of the disputed provisions.

The CGTP–IN also challenges interference from the labour administration in the internal organization of trade unions through controls made on the regulation by trade union constitutions of the direito de tendência, namely the right of trade union members to constitute currents of opinion through which they may participate in the functioning of the organization. According to the CGTP–IN, the labour administration increasingly imposes on trade unions a model for regulating the abovementioned right. The Committee notes the Government’s indication that: (i) the labour administration and, where appropriate, the Public Prosecutor’s Office and the courts are bound to verify whether trade union constitutions fulfil the obligation to regulate the direito de tendência deriving from article 55.2 of the Constitution and section 450.2 of the Labour Code; and (ii) the Government follows the jurisprudence of the Tribunal da Relação in Lisbon, which indicates that this right must not only be recognized and regulated by trade union constitutions but that the latter must also specify “in what way it can or must be exercised” (the tribunal has also indicated that the individual rights conferred on trade union members to criticise the action of their organization, to be consulted and to elect union representatives are insufficient to ensure observance of the direito de tendência, the exercise of which presupposes the organization of various opinion groups within the trade union and the possibility for them to express themselves). Lastly, the Committee notes the decision of 4 May 2011 of the same tribunal indicating that trade union constitutions are free to define the forms in which this right is implemented in practice. The Committee recalls that, under Article 3 of the Convention, national legislation should only lay down formal requirements respecting trade union constitutions, except with regard to the need to follow a democratic process and to ensure a right of appeal for the members (see 2012 General Survey on the fundamental Conventions, paragraph 100). The Committee therefore requests the Government to initiate discussions with the representative workers’ and employers’ organizations in order to examine the legislative provisions in question and their application in the light of the abovementioned principle. The Committee requests the Government to supply information on this matter in its next report.

Furthermore, the Committee asked the Government to send its observations in reply to the ITUC’s comments of 31 July 2012 concerning the arrest and assault of two trade union leaders by the police at the end of a nationwide rally. The Committee again asks the Government to send the requested observations in its next report.

Article 3. In its previous comments the Committee asked the Government, further to the adoption of Act No. 7/2009 of 12 February 2009 revising the Labour Code, to specify whether conciliation and mediation procedures suspend exercise of the right to strike until completion of the procedures. The Committee notes the Government’s statement that conciliation and mediation do not suspend exercise of the right to strike.