Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations of the General Workers’ Union (UGT), received on 28 August 2017, and of the General Confederation of Portuguese Workers (CGTP-IN), received on 1 September 2017.

Article 2(2) of the Convention. Exceptions to the prohibition of night work by young persons. In its previous comments, the Committee noted that the Labour Code of 2003 had been revised and the night work of young persons under 18 years of age is now covered by section 76 of the Legislative Decree No. 7/2009 (Labour Code of 2009). The Committee noted that under section 76(1) a young person of less than 16 years of age cannot work between 8 p.m. and 7 a.m., and under section 76(2) a young person of 16 years or more cannot work between 10 p.m. and 7 a.m. except in the conditions determined by the following paragraphs. The Committee therefore noted that section 76(3) of the Labour Code allows young persons of 16 years or more to perform night work: (i) in sectors of activity determined by a collective agreement, except during the period between midnight and 5 a.m; or (ii) 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. The Committee therefore requested the Government to take the necessary measures to specify the activities in which night work may be authorized for children over 16 years of age.

The Committee takes notes of the observations of the CGTP-IN according to which the Government has not amended the legislation, as per the Committee’s request. The Committee once again notes the allegations made by the CGTP-IN reiterating its previous comments that the national legislation does not expressly state the sectors of activity in which night work is authorized for young persons over 16 years of age. The CGTP-IN further alleges that this task is left to collective bargaining which could lead to a generalization or widespread habit in practice, which is not permitted by the Convention. The Committee also notes the UGT’s statement that in the past years the participation of minors under 18 years of age in artistic activities has seen a growth in recent years and that it is important that such work is performed in a way that will not affect their physical and psychological development.

The Committee notes the Government’s indication in its report that the regulations governing the protection of minors performing hazardous work should be taken into account. With regard to the work of children in artistic performances, the Committee refers to the Minimum Age Convention, 1973 (No. 138), ratified by Portugal in 1998, Article 8 of which authorizes the undertaking of such performances under certain conditions. With regard to section 76(3) of the Labour Code which authorizes the night work of young persons between the ages of 16 and 18 years in sectors to be determined by collective agreement, the Committee recalls once again that according to Article 2(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(2) of the Convention, that is, in work which, by reason of the nature of the process, is required to be carried on continuously day and night. The Committee therefore requests the Government to take the necessary measures to specify the activities in which night work may be authorized for children over 16 years of age as per section 76(3)(a) of the Labour Code of 2009, so as to be in conformity with Article 2(1) and (2) of the Convention.