Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 30 August 2013, and the Government’s comments thereon; the observations of the International Organisation of Employers (IOE), received on 1 September 2013, and the Government’s comments thereon; and the observations of the General Workers’ Union (UGT) and of the General Confederation of Portuguese Workers – National Trade Unions (CGTP–IN), appended to the Government’s report, which contains the Government’s reply.

Article 4 of the Convention. Promotion of collective bargaining. The Committee notes that both the IOE and the ITUC allege that Council of Ministers Decision No. 90/2012 of 31 October 2012, undermined the practice of the “erga omnes” extension of collective agreements, in establishing that they can only be extended if the signatory employers represent at least 50 per cent of the workers in the sector of activity, unless the signatory parties exclude micro-, small and medium-sized enterprises (the vast majority of Portuguese enterprises) from the extension request; this has a negative impact on the system of collective bargaining, with a drastic decrease in the number of collective agreements and workplaces covered by them. Moreover, the Committee notes the UGT’s request for the revocation of the established extension criteria, and its denunciation of the weakening of collective bargaining and the lack of promotion thereof by the Government. In addition, the Committee notes the Government’s replies, indicating that this measure introduced clear and objective criteria to be followed in weighing up the circumstances that might justify the extension of a collective agreement, taking account of representativeness and the impact of the extension on employment and the competitiveness of the economy. The Government states that the reduction in the number of collective agreements and their coverage was due at the time to the economic and financial situation and also to changes in the labour regulations. The Government indicates that collective bargaining is on the increase again and supplies statistical information on new collective agreements that have been published (93 in 2012, 97 in 2013, 161 in 2014, and 64 up to May 2015). Lastly, the Government emphasizes that, recognizing the importance of boosting collective bargaining, a new alternative criterion for the extension of agreements was redefined by Council of Ministers Decision No. 43/2014, taking account of the representativeness of micro-, small and medium-sized enterprises in various sectors of activity, which has contributed to the increase in the number of published extensions (13 in 2012, nine in 2013, 13 in 2014, and 23 up to August 2015). Observing that the current model for the extension of collective agreements is questioned by both workers’ and employers’ organizations, the Committee invites the Government to conduct a tripartite dialogue on the current regulations concerning the extension of collective agreements with a view to finding, as far as possible, shared solutions.

Alteration of collective agreements and regulations concerning their expiry. The Committee notes the observations of the CGTP–IN, criticizing various legislative provisions that suspend, reduce or cancel provisions in collective agreements, resulting in cuts in wages and other allowances and benefits. The CGTP–IN also alleges that the regulations concerning the expiry of validity (caducidade) of collective agreements introduced by section 501 of the Labour Code is contrary to the Convention. The Committee observes that these matters have already been examined by the Committee on Freedom of Association (Case No. 3072). The Committee observes that the Committee on Freedom of Association invited the Government, in the light of the principles of freedom of association and collective bargaining, together with the most representative employers’ and workers’ organizations, to evaluate the impact of the legislative provisions concerning wages and other allowances and benefits on the exercise of trade union rights, particularly the right to collective bargaining, with a view to ensuring that the exceptional measures adopted in connection with the crisis are not perpetuated. The Committee concurs with the recommendations of the Committee on Freedom of Association.

Compulsory arbitration. In its previous comments, the Committee referred to sections 508 and 509 of the Labour Code, which allow the Labour Minister to take a reasoned decision to have recourse to compulsory arbitration. The Committee notes the Government’s indication that, under section 508(1)(c) of the Labour Code, recourse to compulsory arbitration is only possible: (i) at the request of one of the parties, when a first collective agreement is concerned, “after protracted and fruitless negotiations and unsuccessful conciliation and mediation, and it has not been possible to refer the dispute to voluntary arbitration because of the other party’s lack of good faith in negotiations”; (ii) in the event of revision of a collective agreement at the recommendation of the Standing Committee on Social Dialogue (CPCS), a tripartite body in which the workers’ and employers’ organizations are represented); or (iii) on the initiative of the Labour Minister “when it is a question of essential services designed to protect the life, health and safety of persons”. In this last scenario, the Minister must first hear both parties and take into account: (i) the number of workers and employers affected; (ii) the social and economic effects of the dispute; and (iii) the position of the parties. Lastly, the Committee notes that the Government underlines the fact that compulsory arbitration is a measure of last resort, and that from 2006 to May 2015 only three awards resulting from compulsory arbitration were registered. The Committee requests the Government to provide information on any new cases involving the application of sections 508(1)(c) and 509 of the Labour Code, and also to indicate whether a judicial appeal can be made against the decision of the Labour Minister.

Representativeness of organizations. The Committee noted in its previous comments the conclusions of the Committee on Freedom of Association in Case No. 2334, which stated that the legislation: (i) cites by name the 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 (ii) does not lay down objective criteria for determining the representativeness of workers’ and employers’ organizations. The Committee requested the Government to take the necessary measures to determine and lay down objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations forming part of the CES and CPCS. The Committee notes that the Government repeats in its report the same information that was supplied previously, namely that the president of the CES took the initiative of launching a general discussion on the composition of the CES with the cooperation of its members. The Government adds that to date it has no knowledge of any progress made on this issue and that the composition of the CES is a matter of legal competence. The Committee firmly hopes that the necessary steps will be taken in the very near future to determine and lay down objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations forming part of the CES and CPCS, and to amend section 9 of Act No. 108/91 concerning the Economic and Social Council as indicated above.