Night Work Convention, 1990 (No. 171) - Portugal (Ratification: 1995)

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

Previous comments: C.14, C.106, C.132 and C.171

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos. 14 (weekly rest (industry)), 106 (weekly rest (commerce and office), 132 (annual holidays with pay) and 171 (night work) together.

Weekly rest

Article 5 of Convention No. 14 and Articles 7(2) and 8(3) of Convention No. 106. Compensatory rest. The Committee notes the Government’s indication in its report that compulsory weekly rest is guaranteed by section 232(1) of the Labour Code and that an additional weekly rest, whether continuous or intermittent, occurring in some or all weeks of the year, can be established through a collective labour agreement (section 232(3) of the Labour Code). The Government also informs that when employees work on a compulsory weekly rest day, they are entitled to a paid compensatory rest day, with a 50 per cent or 100 per cent increment, to be taken on one of the following three working days. The Committee notes the observation made by the General Confederation of Portuguese Workers (CGTP) which indicates that additional weekly rest days are nearly universal and included in most collective agreements. CGTP also informs that the repeal of the right to paid compensatory rest in case of overtime on additional weekly rest days, as stipulated by Law No. 23/2012, was carried out under the pretext of fulfilling obligations arising from the financial assistance granted by the International Monetary Fund, the European Central Bank and the European Commission. However, CGPT emphasizes that more than seven years have passed since this modification, and despite several amendments to the Labour Code, compensatory rest in case of overtime on additional weekly rest days has yet to be reinstated. The Committee requests the Government to provide information on measures adopted or envisaged to ensure that compensatory rest is compulsorily granted in all cases of exemptions, whether permanent or temporary, from the normal weekly rest scheme, in accordance with Conventions Nos. 14 and 106.

Annual holidays with pay

Articles 11 and 12 of the Convention No. 132. Prohibition to relinquish or forgo the right to an annual holiday with pay. The Committee notes the information provided by the Government that section 244(3) of the Labour Code, which stipulates that in cases of complete or partial impossibility to take annual leave, the worker is entitled to the corresponding remuneration for the unused leave or the option to use it until 30 April in the subsequent year, coupled with financial compensation, in circumstances where it is impossible to take annual leave during a particular calendar year due to the worker’s impediment, including cases of illness. However, the Committee wishes to emphasize that agreements to forgo holiday in exchange for compensation shall be prohibited. The Committee requests the Government to provide information on measures taken or envisaged to bring the national legislation into full conformity with the Convention on this point.

Night work

Article 4(1) of the Convention No. 171. Health assessment of workers, at their request, during their assignment. The Committee notes that, according to the information provided by the Government, section 225 of Labour Code provides for cost-free and confidential medical examination for night workers, along with a specific risk assessment, which is required to evaluate the suitability of the job for the worker, considering their physical and mental condition, both prior to commencing the activity and subsequently every six months. The Committee notes CGTP’s observation that the Labour Code still does not provide for free medical examinations to be carried out at the worker’s request when health issues arise in connection with working under this regime. Therefore, the Committee requests the Government to provide information on measures adopted or envisaged to ensure that night workers are entitled to request and undergo a health assessment free of charge when experiencing health problems linked to night working, independently from any regular medical examination otherwise scheduled by the employer.

Articles 5. First-aid facilities. The Committee notes the observation of CGTP that, although the Labour Code stipulates that the employer must organize occupational safety and health activities in such a way that night workers benefit from a level of protection appropriate to the nature of their work and that these resources are available at all times, the provision is quite general and does not by itself guarantee that night workers actually have access to suitable first-aid facilities. The Committee requests the Government to provide its comments in this respect.

Article 7(3)(a). Maternity protection. Prohibition of dismissal. The Committee notes the observation of CGTP that section 63 of the Labour Code contains a general provision for the protection of pregnant, postpartum or lactating workers in case of dismissal, but does not contain an absolute prohibition of dismissal or notice of termination of such workers engaged in night work. It also informs that this protection does not apply in cases of other forms of employment contract termination, such as the expiration of a fixed-term employment contract. The Committee requests the Government to provide its comments in this respect.

Article 9. Social services. The Committee notes that according to the CGTP, the current legislation does not address the appropriate social services for night workers, particularly regarding transportation to and from the workplace during hours when public transportation is not available, as well as issues related to meals and other support facilities. The Committee once again requests the Government to indicate any specific measures it intends to take to further improve the working conditions of night workers having regard to the special needs in terms of rest, transport, food and catering, organization of family life and recreational facilities.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 4(1) of the Convention. Health assessment of workers, at their request, during their assignment. The Committee notes the Government’s reference to the legislative texts giving effect to the Convention, including the revised Labour Code (Act No. 7/2009) and Act No. 102/2009 on occupational safety and health. More concretely, the Government indicates that section 225(1) of the new Labour Code, which reproduces the provision of section 195(1) of the previous Labour Code, sets out the employer’s responsibility to arrange for the medical examination free of charge of night workers with a view to assessing their state of health before taking up an assignment and at regular intervals, at least once a year, during such an assignment. In addition, under section 225(2), the employer must assess the risks inherent to the activity undertaken by a night worker, before he starts the activity and every six months thereafter, taking into account, among other factors, his physical and mental health. Moreover, Act No. 102/2009, applicable to all workers including night workers, provides for the employer’s obligation to ensure medical examinations free of charge for all employees, before and during their assignment, including occasional examinations when substantial changes in nature of the work are likely to affect their health. The Committee notes, in this connection, the comments of the General Confederation of Portuguese Workers (CGTP) and the General Workers’ Union (UGT) which were attached to the Government’s report. The CGTP considers that the Labour Code fails to provide for the workers’ right to undergo a health assessment at their request if they experience health problems related to the performance of night work, as required under the Convention. The UGT indicates that the examinations provided for in section 225(1) of the Labour Code are specific medical examinations to assess the mental and physical health of the worker to undertake night work. In reply to those comments, the Government while acknowledging that the Labour Code does not explicitly provide for health assessment at the worker’s request, maintains that by providing for medical examination and risk assessment at regular short intervals the national legislation affords a level of protection consistent with the requirements of the Convention. Recalling the importance of detecting and treating in a timely manner any health problems directly related to the performance of night work, the Committee hopes that the Government will take the necessary measures to ensure that night workers are entitled to request and undergo a health assessment free of charge when experiencing health problems linked to night working, independently from any regular medical examination otherwise scheduled by the employer.

Articles 5 and 9. First-aid facilities and social services. The Committee notes that according to the CGTP, the clauses included in collective labour agreements regarding social services are often very general and therefore insufficient to satisfy the special needs of night workers as compared to those of day workers. For instance, in some enterprises, canteens are not open during the night or are not equipped for warming food that workers bring at the workplace. Moreover, public transport services being often unavailable at the time night workers start and finish their shift, they may spend considerable time waiting for public transport to restart its service. The CGTP also refers to the lack of first-aid facilities for night workers and considers that a relevant obligation should be expressly provided for in the law. In its reply, the Government indicates that the law requires employers to ensure the occupational safety and health of workers, including through appropriate first-aid facilities. The Committee requests the Government to indicate any specific measures it intends to take to further improve the working conditions of night workers having regard to the special needs in terms of rest, transport, food and catering, organization of family life and recreational facilities.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the adoption of Act No. 99/2003 issuing the Labour Code, Act No. 35/2004 adopting regulations under the Labour Code and Legislative Decree No. 326-B/2007 concerning the Authority for Working Conditions (ACT).

Article 4, paragraph 1, of the Convention. Health assessment of workers, at their request, during their assignment. While noting section 195(1) of the Labour Code, the Committee requests the Government to specify the legal provisions or regulations guaranteeing workers the right to undergo, at their request and without charge, a health assessment during their assignment to night work.

Article 6, paragraph 3. Protection against the dismissal of temporarily unfit workers. Following the repeal of Legislative Decree No. 398/83, which previously gave effect to this provision of the Convention, the Committee requests the Government to indicate the legislative provisions or regulations guaranteeing that the night worker certified as temporarily unfit for night work is granted the same protection against dismissal or notice of dismissal as other workers who are prevented from working for reasons of health.

Article 9. Social services. The Committee notes the information provided by the Government concerning collective labour agreements which contain clauses relating to social services provided to workers, such as canteens, meal allowances, or transport. In this respect, the Committee recalls that the Convention requires the provision of social services for night workers, thereby acknowledging that these workers have special needs with respect to rest, transport, organization of family life, safety, recreational activities, etc. The Committee therefore asks the Government once again to indicate whether the Bill providing appropriate social services for night workers, mentioned in a previous report, is still being prepared and, if this is the case, to provide it with a copy as soon as it has been adopted.

Part V of the report form. Practical application. The Committee notes the statistical information concerning the number of night workers covered by legislation, the extracts from collective agreements and the statistical data provided by the ACT for the period 2003–07. It also notes the comments by the General Union of Workers (UGT), which stress the difficult nature of night work and its interference with workers’ family and social lives. The UGT points out that, in practice, collective agreements stipulate a salary increase of 30 per cent – compared to 25 per cent provided for under the Labour Code – and they also increasingly make available means of transport outside normal public transport working hours. The Committee requests the Government to continue providing general information on the way in which the Convention is applied in practice, by submitting, extracts from the ACT’s activity reports, copies of relevant collective agreements, statistics on the number of workers covered by legislation, recent surveys on the social dimension of night work, etc.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the detailed information contained in the Government’s report and the attached documentation concerning the application of Articles 2 (categories of workers excluded from scope of application), 4 (medical examination of night workers), 9 (social services) and 11 (implementation through collective agreements) of the Convention. It also notes the adoption of Legislative Decrees No. 70/2000 of 4 May 2000 and No. 230/2000 of 23 September 2000 on maternity protection, which in part regulate matters relating to night work of women workers.

Article 9 of the Convention. The Committee notes the Government’s reference to selected collective agreements which specifically provide for meal allowances for the workers performing, wholly or partially, night work. The Committee recalls, in this connection, that by "social services" the Convention intends to cover a large variety of measures, including but not limited to the provision of food and beverages, and ventures to draw the Government’s attention to Paragraphs 13-18 of the Night Work Recommendation, 1990 (No. 178), which offer guidance as to other measures which might be considered appropriate for night workers, such as suitable transport arrangements, resting facilities, crèches, and adaptable cultural, sporting or recreational activities. In addition, the Committee requests the Government to specify whether the draft legislation, which would establish appropriate social services for night workers, and to which reference was made in an earlier report, has been finally adopted.

Part V of the report form. The Committee notes that, according to the statistical information provided by the Government, there were one million workers employed at night in 2001, or 20.2 per cent of the total workforce. The Committee also notes the general labour inspection statistics for the period 1999-2002 as well as the various collective agreements providing for specific night work benefits and allowances. The Committee would be grateful to the Government for continuing to supply all available information bearing on the practical application of the Convention, including statistics on the number of workers performing night work, official reports or studies addressing the problems of night working, difficulties of enforcement reported by the inspection services and any other particulars which would enable the Committee to better evaluate the conformity of national laws and practice with the requirements of the Convention.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report and the detailed information it contains in reply to the previous direct request.

Article 2 of the Convention. The Committee notes the information supplied by the Government regarding the categories of workers excluded from the scope of the Convention and the reasons for such exclusion. As regards dockers, the Committee notes the Government’s statement in its report that the latter are not subject to the provisions of Legislative Decree No. 409/71 of 27 September 1971. The Committee observes, however, that section 3(1) of Legislative Decree No. 409/71 refers to special provisions. It would therefore appear that Legislative Decree No. 280/93 is the text governing dockers. Furthermore, according to section 1(3) of Legislative Decree No. 409/71, the provisions of this Legislative Decree are to be adopted to the specificities of dock work through the conclusion of collective agreements. The Committee therefore asks the Government to indicate whether the collective agreements regulating dock work have been adopted in respect of working hours and night work in particular, and, if so, to provide copies to the Office.

Article 4 of the Convention. The Committee notes that section 8 of Act No. 73/98 of 10 September 1998 provides for night workers to undergo a health assessment, to be free of charge and confidential, before taking up an assignment and thereafter at regular intervals. It asks the Government to provide additional information on the right of night workers to undergo a health assessment whenever they experience health problems which are not caused by factors other than the performance of night work.

Article 9. The Committee recalls that in its previous comments it noted that, according to the Government’s report, a law was being drafted which would establish appropriate social services for night workers and, where necessary, for workers performing night work. The Committee notes that the draft legislation has not yet been adopted. The Committee notes that the Government in its last report indicates that according to Act No. 34446 of 17 March 1945, enterprises, including those which employ night workers, must set up canteens. While noting this information, the Committee considers that this Article of the Convention is much broader, providing for the establishment of appropriate social services for night workers. It therefore asks the Government to take the necessary steps to bring the legislation into line with the Convention in this respect and, in the meantime, to supply information on the collective agreements under which services such as those stipulated in this Article of the Convention are to be provided.

Article 11. With reference to its previous comments, the Committee recalls that it asked the Government to provide information on the collective agreements giving effect to the provisions of the Convention. The Committee notes that, in addition to giving detailed information on legislative measures adopted to give effect to various Articles of the Convention, the Government states that these Articles are applied by collective agreements, a case in point being Article 2 of the Convention in respect of dockers, and Article 9, as concerns appropriate social services for night workers ensured by collective agreement. The Committee therefore hopes that the Government will provide in its next report copies of collective agreements relating to the various subjects mentioned above.

Lastly, the Committee asks the Government to supply, in accordance with Part V of the report form, information on the manner in which the Convention is applied in practice, particularly statistics on night workers, extracts of official reports, information on inspection visits and the number and nature of contraventions reported.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report and the detailed information it contains in reply to the previous direct request. The Committee notes with satisfaction the adoption of Legislative Decree No. 96/99 of 23 March 1999 amending the definition of night work, and Act No. 73/98 of 10 November 1998 concerning certain aspects of working time arrangements and incorporating Directive No. 93/104/CE of 23 November 1993 of the Council of the European Union. The above texts give effect to the provisions of this Convention.

The Committee is addressing a request directly to the Government about other matters.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the comments made by the Confederation of Portuguese Industry (CIP), which were transmitted by the Government. It notes that the CIP refers to the adoption of Legislative Decree No. 96/99 of 23 September 1999, which amends the definition of night work. The Committee will examine all the information and legislative provisions provided by the Government in its report, including the above Legislative Decree, at its next session.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information supplied by the Government in its first report.

The Committee notes the comments of the General Confederation of Portuguese Workers (CGTP), mentioned as annexes to the Government's report.

The Committee notes that a Bill is being prepared to incorporate in the legislation the provisions of the European Union Directive 93/104/CE of 23 November 1993 concerning certain aspects of the organization of working time, which have not yet been included in the national legal system.

It also notes the Government's statement that the above Bill will include rules to ensure implementation of the parts of the Convention not yet covered by the legislation, and will include the notion of night work in terms which meet the purposes of the Directive and the Convention. The Committee asks the Government to take the necessary steps, while the Bill is being drafted, to bring the legislation into conformity with the Convention, and to keep it informed of progress made in this respect.

Article 1 of the Convention. The Committee notes that, according to the Government's report, the concept "night work" shall refer to work performed during a period of not more than 11 hours and not less than seven hours, and which must in all cases include the interval from midnight to 5 a.m. The Committee asks the Government to refer to the provisions of Article 1(a) of the Convention, in which the term "night work" means all work performed during a period of not less than seven consecutive hours, including the interval from midnight to 5 a.m. The Committee also notes that, according to the Government's report, neither the legislation nor collective agreements mention the term "night worker". It asks the Government to refer to the provisions of Article 1(b) of the Convention in which the term "night worker" means an employed person whose work requires the performance of a substantial number of hours of night work which exceeds a specified limit.

The Committee asks the Government to take the necessary measures to bring its legislation into conformity with the Convention and to provide information on the procedures followed for consulting employers' and workers' organizations as required by the Convention, and on progress made in this respect.

Article 2. The Committee notes the provisions of sections 1(2), 1(3), 3(2) and 4 of Legislative Decree No. 409/71 of 27 September 1971 respecting working time, and the provisions of section 1 of Legislative Decree No. 349/73 of 11 July 1973 respecting the definition of the activities referred to in Legislative Decree No. 348/73 under which certain categories of night workers are excluded. The Committee observes that the Government's report makes no reference to such exclusions. It asks the Government to provide full information on the exclusion of worker from the application of the Convention and the reasons for their exclusion.

Article 3. The Committee notes that, according to the Government's report, no legislative measures have been taken to meet the requirements of this Article of the Convention, other than those taken in the context of Conventions Nos. 103 and 156. The Committee recalls that the measures provided for in paragraph 1 of this Article may be applied progressively. The Committee asks the Government to take the necessary steps to bring the legislation into conformity with the Convention and to provide information on progress made in this respect.

Article 4. The Committee notes the provisions on workers' health assessment contained in section 34(1) and (2) of Legislative Decree No. 409/71 and section 16(1) and (2) of Legislative Decree No. 26/94 of 1 February 1994 (as amended by Act No. 7/95 of 29 March 1994) respecting occupational safety and health services. It asks the Government to provide additional information on the right of workers to undergo a health assessment if they experience health problems during their assignment, which are related to night work. This information should also cover the right to receive advice on how to reduce or avoid health problems associated with their work and to undergo a health assessment without charge.

Article 5. The Committee notes the provisions on first aid and the principles of prevention contained in sections 2 and 8 of Legislative Decree No. 441/91 of 14 November 1991 respecting occupational safety and health and section 26(1) of Legislative Decree No. 360/71 of 21 August 1991 regulating Act No. 2127 of 3 August 1965 respecting occupational accidents and diseases.

The Committee asks the Government to provide additional information so that it can ascertain whether the situation of workers performing night work is included in the measures taken pursuant to the above-mentioned provisions.

Article 6, paragraph 1. The Committee notes the Government's statement that the provisions of this Article of the Convention are not covered by the legislation, but that collective agreements quite frequently include clauses providing that in certain conditions workers performing night work may be transferred to a day shift. Furthermore, the Committee notes the content of the Bill being drafted to ensure application of the Convention. It asks the Government to take the necessary measures to bring the legislation into conformity with the Convention so as to eliminate any ambiguity in this respect.

Paragraphs 2 and 3. The Committee notes that, according to the Government's report, no specific provision is made to protect a worker who is unfit for night work regardless of his fitness to perform work during the day.

The Committee asks the Government to provide information on the application of the Convention in this respect.

Article 7, paragraph 3(c). The Committee notes the provisions concerning the protection of these entitlements for female workers contained in section 18(1) of Legislative Decree No. 4/84 (as amended by Act No. 17/95) respecting maternity protection. The Committee asks the Government to provide information on the protection of women workers who have been transferred to daywork, particularly with regard to benefits regarding status, seniority and access to promotion which may attach to their regular night work position.

Article 8. The Committee notes the provisions of section 30 of Legislative Decree No. 409/71 under which remuneration for night work must be 25 per cent higher than the remuneration set for equivalent work performed during the day. The Committee observes that, according to the provisions of Legislative Decree No. 343/73, the compensation provided for in section 30 of Legislative Decree No. 409/71 does not apply to the entertainment industry, the hotel and related industries and pharmacies. The Committee asks the Government to provide detailed information on these exclusions.

Article 9. The Committee notes the Government's statement that the law does not contain any provision concerning appropriate social services, but that there are collective agreements establishing the provision of services such as those prescribed in this Article. It also notes that, according to the Government's report, the Bill now being drafted will provide for appropriate social services for night workers and, where necessary, for workers performing night work. The Committee asks the Government to take the necessary steps to bring the legislation into conformity with the Convention in this respect.

Article 10, paragraph 1. The Committee notes the provisions of section 24, paragraph 1(f), of Act No. 46/79 under which changes in work schedules applying to all or some of the workers of the enterprise (and, consequently, night work schedules) are subject to the prior opinion of the workers' committee. It also notes the provisions of section 9, paragraph 3, of Legislative Decree No. 441/91 concerning the obligation to consult workers' representatives on occupational safety and health measures. It asks the Government to provide further particulars of the organization of night work in accordance with the provisions of paragraph 1 of this Article.

Article 11. The Committee notes the Government's statement that the provisions of the Convention are applied through the legislation and collective agreements. The Committee notes from the Government's report that legislative measures have not been adopted with regard to the application of Articles 3, 6 and 9 of the Convention. It also notes from the Government's report that the Bill being drafted will revise the existing provisions with regard to Articles 1, 4 and 6 of the Convention. The Committee asks the Government to take the necessary measures to bring the legislation into conformity with all provisions of the Convention and to inform it of progress in this respect.