Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19) - Portugal (Ratification: 1929)

Individual Case (CAS) - Discussion: 1988, Publication: 75th ILC session (1988)

The Government has communicated the following information:

The 1976 Constitution of the Republic of Portugal guarantees in article 15 full equality of rights and duties for all individuals, irrespective of nationality.

In accordance with this principle of full equality, article 293 of the Constitution declares any previously existing legislation which is inconsistent with the Constitution to have been repealed. Such repeal flows, without any doubt, from the following: "Previously existing legislation... remains in force provided it is not contrary to the Constitution or to the principles consecrated in it."

In this way, and owing to the overriding legal force which constitutional provisions necessarily possesses, this provision means that in Portugal foreign workers can receive no less favourable treatment than that received by workers who are Portuguese nationals.

Taking into account this new examination of the problem posed by the Committee of Experts' observations, official Portuguese bodies competent on the subject of compensation for employment injuries have been consulted. These were the General Labour Inspectorate and the National Insurance Institute (a body under the Ministry of Finance supervising the activities of insurance companies, through which protection against employment injury is still guaranteed, since this matter has not yet been transferred to the social security system, as reported earlier).

The General Labour Inspectorate, in the course of its systematic oversight of employment injuries, their consequences and compensation in respect of them, has not detected any exclusion of foreign workers employed in Portugal from the general scheme of protection provided for by Act No. 21/27 and the regulations issued under it (Decree No. 360/71).

With regard to the National Insurance Institute, it was corroborated that the staff lists which employers were required to send to the insurance companies with which they have employment injury insurance contracts for their workers had to contain the names of all persons in the employers' service, irrespective of the workers' nationality. Therefore, all workers, whether nationals or foreigners, enjoy the same social protection in case of employment injury.

With regard to the observation made concerning section III, paragraph 3, of Act No. 21/27, the Government considers that the apparent lack of conformity with Article 2 of the Convention is illusory. In fact, a foreign enterprise which does not "become national" by establishing an associated enterprise in accordance with Portuguese law, or by establishing a representative or an agency, may only engage in activities in Portugal on a temporary basis to execute a concrete and specified type of work. If it "becomes national", it is subject to the same duties and rights as a national enterprise.

By contrast, the conditions under which it operates are temporary in character and lack a continuous nature. Therefore, the compensation scheme for employment injury (provided for in section III, paragraph 3, of Act No. 21/27), to which all foreign workers are subject, and for which the enterprise and the country are responsible, is in conformity with Article 2 of the Convention.

As a matter of fact, the guarantee of compensation for all foreigners, except for those having entitlements under the law of their own country, produces the same effect as guaranteeing the compensation to be paid, without prejudice to there being a special agreement applying the legislation of the country in which the enterprise is established.

In addition, a Government representative spoke of the written communications sent by his Government to the present session of the Conference and his agreement with the principle that modifications to bring law into compliance with ratified Conventions should be done explicitly and not tacitly. Nevertheless the law in his country permitted implicit abrogation, and the 1976 Constitution which took precedence over ordinary law, abrogated all earlier law which was contrary to its provisions and principles. In practice, therefore, the provisions of Act No. 21/27 of 1965 on industrial accidents had clearly been abrogated by the Constitution. Legislative modifications were within the competence of Parliament and was outside the juridiction of the Government. Nevertheless, it could not be ruled out that when accident compensation was integrated into a unified social security system, the provisions would be modified to make them compatible with the Convention as well as with their obligations deriving from his country's membership of the European Communities.

The Employers' members noted that certain discrepancies still existed between the law and the provisions of the Convention. Even if Constitutional provisions took precedence over ordinary legislation, the necessity to bring into conformity legislation with the Convention still remained. According to provisions of the 1965 law on industrial accidents, mentioned in the report of the Committee of Experts, certain foreign workers were still excluded from its scope. The Government had supplied written information on the subject, however clarification of the law was still needed. The provisions of community law provided complementary protection to citizens of member States of the European Communities, but the provisions in questions were obviously of importance of workers from other States. The Government must clarify what the situation is in practice.

The Workers' members stated that according to the General Confederation of Portuguese Workers (CGTP) it was possible that the provisions of the Convention (which was of interest to all citizens of member States who had ratified it) could be applied in full, but that the will to adopt the necessary provisions was lacking. They hoped that this question would be resolved and stressed the value of tripartite consultations.

The Worker member for Portugal agreed with the statement made by her Government that the provisions of Act No. 21/27, Article III, which was the subject of observations by the Committee of Experts, could be considered as abrogated by the Constitution. There remained, however, the need to draw up regulations for the implementation of Act No. 28, 1984, to give full effect to the Convention. After four years' delay a commission to draw up these regulations had still not been set up. The Government must assure the workers' and employers' organisations of their right to participate as has been provided by the law. She hoped that measures would be taken to integrate accident compensation into the social security system.

The Government representative, stressing that practice did conform with the provisions of the Convention, added that a draft Social Security Code had almost been finished and that the social partners would be consulted on this subject at the permanent council for tripartite consultation.

The Committee noted the written and oral explanations supplied by the Government. Since the comments of the Committee of Experts referred to specific discrepancies in the relevant national legislation, the Committee hoped that the Government will reexamine the position and will take appropriate measures to ensure full conformity with the Convention, in legislation as well as in practice.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on social security, the Committee considers it appropriate to examine Conventions Nos 12 (agriculture), 17 (accidents), 18 (occupational diseases), 19 (equality of treatment) and 102 (minimum standards) together.

The Committee notes the observations of the General Confederation of Portuguese Workers (CGTP-IN), communicated with the Government’s reports.

Part V (Old-age benefit). Article 26(2) of Convention No. 102. Pensionable age.Working ability of older persons. The Committee notes the information provided by the Government in its report concerning the reform of the pension system, which was aimed at enhancing its financial sustainability. The Committee notes that the legal age for entitlement to an old-age pension has been gradually increased to 66 years and 4 months in 2023. The Committee takes note of the observations of the CGTP-IN, that the expectancy of healthy life years at 65 years was only 7.7 years in Portugal in 2020, and that the level of employability of workers over 65 in 2022 reached just 9.3 per cent. The Committee further notes the information provided by the Government in its 2023 report on the application of the European Code of Social Security and its Protocol, which indicates that the number of elderly persons aged 65 compared to the number of persons of working age (from 15 to 64) reached 33.6 per cent in 2018, compared to 20.3 per cent in 1990. The Committee recalls that Article 26(2) of the Convention allows for an increase of pensionable age beyond 65 years with due regard to the working ability of older persons in the country concerned. The Committee therefore requests the Government to: (i) reply to the observations made by theGeneral Confederation of Portuguese Workers (CGTP-IN)in this regard; and (ii) provide statistical information on the working ability of older persons, notably on the healthy life expectancy, the life expectancy at 65 and the employability of persons aged 65 and over.

Article 36 of Convention No. 102. Payment of compensation in the form of a lump sum. The Committee notes the information provided by the Government that, in the event of incapacity for work of more than 30 per cent and less than 75 per cent, the conversion of a periodic payment into a lump sum is permitted only partially and at the request of a beneficiary, in accordance with section 75 of Act No. 98/2009. The Committee further takes note that, in such a situation, the partial conversion is subject to two limitations: (i) the remaining annual pension may not be less than six times the amount of the guaranteed minimum monthly remuneration in force; and (ii) the lump sum may not exceed that which would result from a pension calculated based on an incapacity of 30 per cent. The Committee notes Government’s indication that such limitations are sufficient to ensure that the lump sum is properly utilized as to guarantee the preservation of the subsistence income for the beneficiary of an employment injury pension.

Part XI of Convention No. 102 (Standards to be complied with by periodical payments). Article 65(10). 1. Review of the rates of employment injury pensions. The Committee takes due note of the information provided by the Government as regards the adjustment of disability pensions payable either by private insurance companies in case of an accident at work or by the Social Security Institute in case of an occupational disease.

2. Review of the rates of old-age, employment injury, invalidity, and survivors’ benefits. The Committee notes the statistical data provided by the Government on the evolution of the cost-of-living index and average wages, as well as the amount of standard old-age, employment injury and invalidity benefits since 2010. The Committee observes that minimum pensions during this period have increased at the same rate as the consumer price index (IPC) but that the social support index (IAS), which determines the level of other pensions, increased at a substantially lower rate. The Committee also takes note that there was no regular updating of pensions in 2021 and that the Government approved an extraordinary increase to be applied to lower pensions in 2022. The Committee notes the concerns expressed by the CGTP-IN, indicating that, in 2023, the Government set, at its discretion, the percentages for updating pensions at a much lower level than the legal formula, and that Law No. 53-B/2006 does not guarantee the maintenance of the real purchasing power. In this context, the Committee observes that the practice of adjusting mainly lower pensions without following the substantial changes in the cost of living may not guarantee the purchasing power of the pension payments. In view of this, the Committee requests the Government to (i) reply to the observations of the CGTP-IN in this regard; (ii) provide up to date statistical information on the changes in the index of earnings, the cost of living and the amount of old-age, employment injury, invalidity and survivors’ benefits since 2020, in accordance with Title VI of the report form for the Convention; and (iii) indicate how such changes guarantee the maintenance of the purchasing power as to the standard beneficiary under the terms of the Convention.

Part XIII (Common provisions). Article 69. Suspension of employment injury benefits. The Committee notes the Government’s indication that sections 14, 15, 16 and 17 of Law No. 98/2009 establish the situations in which suspension of benefits is allowed or that there would be no entitlement to employment injury benefits. The Committee also notes the Government’s explanation that these exclusions have very strict limits, which reduce the extent of their application.

Article 71. Financing of the social security system. The Committee takes due note of the information and data provided by the Government, which indicate that the overall contribution borne by employees attained 18.8 per cent of the total revenues in 2021, within the level allowed by Article 71 of the Convention.

Social security and poverty reduction. The Committee notes the Government’s statistical information on the reduction of poverty, despite the temporary reversal in 2020 resulting from the social effects of the COVID-19 pandemic. The Committee further notes, from the 38th report on the European Code of Social Security, that 16.4 per cent of people were at risk of poverty in 2021, 2 per cent less than in 2020, and that social transfers related to sickness and disability, family, unemployment, and social inclusion (excluding pensions) contributed to reducing the risk of poverty by 5.1 per cent.

Article 1 of Conventions Nos 17 and 18 and Article 71(3) of Convention No. 102. General responsibility of the State for the due payment of employment injury benefits. The Committee takes note of the information provided by the Government that delays in the provision of benefits were related to one single operator and that the Insurance and Pension Funds Supervisory Authority took specific measures, resulting in the normalization of the operations in 2022. The Committee notes the CGTP-IN’s observation as to the persistent delays in recognizing the occurrence of an accident at work or an occupational disease, particularly due to lack of medical personnel, which may deprive injured workers (and their families, in the event of death) of income for long periods of time. Furthermore, it indicates the under-declaration of wages for insurance purposes leading to a reduction of the amount of cash benefits paid in this regard. The Committee wishes to recall once more that Article 1 of Conventions Nos 17 and 18 and Article 71(3) of Convention No. 102 establish the responsibility of the State for the due payment of employment injury benefits and that the State must take all measures required for this purpose, including appropriate enforcement and compliance measures. The Committee requests the Government to: (i) reply to the observations of the CGTP-IN in this regard; and (ii) provide statistical information concerning the number of claims and the average time elapsed between the reporting of an accident at work/occupational disease, its recognition, and the beginning of payment of the respective cash benefits.

Application of the Conventions Nos 12, 17 and 18 in practice. The Committee notes the Government’s indication that, since 2014, the Working Conditions Authority (ACT) has adopted measures to prevent accidents at work, comprising training, awareness- raising and information activities aimed at certain sectors, including agriculture and fisheries, to reduce the number of accidents at work and the risk factors associated with occupational diseases. The Committee also notes the statistical information demonstrating the decrease in the number of accidents at work detected from 2014 to 2021, particularly in the agricultural, livestock and fishing sectors. The Committee also notes the information provided concerning the collection of statistical data on the incidence and prevalence of occupational diseases, showing that pilot exercises are currently being carried out, according to the framework regulation No. 1338/2008 of the European Parliament and of the Council, on community statistics on public health and health and safety at work, with a view to establishing a conceptual harmonization methodology to standardize the classifications of occupational diseases. The Committee notes that, according to the CGTP-IN, although the legislation concerning compensation for accidents at work applies to all workers and occupational accident insurance is compulsory, neither of them is fully applied in sectors characterized by the existence of various forms of subcontracting and temporary work, such as agriculture, resulting in, among other issues, the underreporting of cases. It indicates furthermore that injured workers are often dismissed without reintegration or professional rehabilitation. The Committee requests the Government to reply to the observations of the CGTP-IN in this regard, and to provide information on: (i) the number of accidents at work and occupational diseases, the violations detected by the labour inspection in this context and the number and nature of penalties applied; (ii) the measures adopted or envisaged to improve the reporting of accidents at work and occupational diseases, particularly in agriculture; and (iii) the results obtained by the pilot exercises regarding the incidence and prevalence of occupational diseases.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

With reference to its previous comments, the Committee notes with satisfaction the adoption of Law No. 22/92, which amends Act No. 21/27. Law No. 22/92 creates equality of treatment for foreign workers without reference to the legislation of the relevant foreign country (Article 1 of the Convention). It also removes the exclusion of foreign workers who are employed by a foreign enterprise and who have a right of compensation under the legislation of their own country, unless they are only temporarily or intermittently employed in Portugal and an agreement has been established between Portugal and the State concerned (Article 2) for the application of the legislation in full in that State.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

In reply to the Committee's previous comments, the Government confirms its intention of bringing the legislation into conformity with the Convention with regard to the regulations respecting industrial accidents. It adds that the responsible authority, namely the Ministry of Finance, has been duly informed. The Committee notes this information with interest. It hopes that pending the integration of industrial accident compensation into the unified social security scheme, it will be possible to take the necessary measures in the near future to amend Act No. 21/27 of 3 August 1965 respecting industrial accidents with regard to the following points:

Article 1 of the Convention. Section III of Act No. 21/27 of 3 August 1965 does not treat Portuguese workers and foreign workers employed in Portugal on the same basis "unless the legislation of the country in question grants equal treatment to Portuguese workers", whereas, according to this provision of the Convention, equality of treatment shall be granted to the nationals of any other Member which has ratified the Convention, regardless of whether the legislation of that other country grants equality pursuant to the Convention.

Article 2. Section III, paragraph 3, of the above cited Act excludes from the scope of the Act foreign workers who are employed by a foreign enterprise and whose right to compensation is recognised under the legislation of their own country, whereas such an exclusion is not authorised by the Convention unless the employment of the foreign workers concerned is of a temporary or intermittant nature and such exclusion is provided for in a special agreement between the Members concerned.

The Committee requests the Government to supply information on any progress achieved in this respect.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee takes note of the information supplied by the Government in its report.

1. In its previous comments, the Committee drew the Government's attention to the fact that Act No. 21/27 of 3 August 1965 respecting industrial accidents is not fully in conformity with the Convention. In the first place, section III of this Act does not treat Portuguese workers and foreign workers employed in Portugal on the same basis unless the legislation of the country in question grants equal treatment to Portuguese workers, whereas, according to Article 1 of the Convention, equality of treatment shall be granted to the nationals of any other Member which has ratified the Convention, regardless of whether the legislation of that other country, in fact, grants equality pursuant to the Convention. Secondly, paragraph 3 of the Act, in so far as it excludes from the scope of the Act foreign workers who are employed on behalf of a foreign undertaking and whose right to compensation is recognised under the legislation of their own country, is not fully in conformity with Article 2, which does not authorise such exclusion unless the employment of the foreign workers concerned is of a temporary or intermittent nature and such exclusion is provided for in a special agreement between the Members concerned.

In this connection, the Committee notes with interest that although the Government maintains its previous position with regard to the Act (namely, that the part of the Act which is incompatible with the Convention should be taken to have been abrogated by virtue of the relevant provisions of the Constitution) and although Portuguese practice permits the conclusion that such abrogation may take place, in order that no doubts as to the persons covered by the Act or responsibility for its enforcement may be raised, the Government has indicated that it will none the less take into account that it would be desirable for the legislation to be brought explicitly into conformity with the Convention when regulations are issued on industrial accidents.

The Committee asks the Government to provide information on any progress achieved in this connection.

2. With regard to the consultations provided for in paragraph 2, section 72 of Act No. 28/84, the Committee notes that accident compensation has not yet been integrated into the unified social security system, and that there has consequently been no change in the system under which responsibility rests with the employers, as provided in Act No. 21/27 and the supplementary legislation. The Committee asks the Government to continue to provide information on any consultations held in this respect.