Workmen's Compensation (Accidents) Convention, 1925 (No. 17) - Portugal (Ratification: 1929)

Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

A Government representative presented information on behalf of his Government in response to the three questions raised by the Committee of Experts with regard to the integration of protection against industrial accidents into the general social security scheme, the protection of workers' occupational health and safety, and compensation for industrial accidents.

(1) Integration of protection against industrial accidents into the general social security scheme

Employers were required to transfer their responsibility for compensation of industrial accidents to insurance institutions while paying the costs of insurance. However, the legislation authorized employers whose economic capacity was considered sufficient to assume the coverage of occupational safety hazards. In such a case, compensation for workers who sustained industrial accidents was paid for by the employers. However, several enterprises whose economic capacity was known to be sufficient preferred to transfer this responsibility to the insurance institutions. The criteria for establishing work disability benefits had a general application. They were applied either to insurance institutions or to enterprises which directly insured the payment of benefits for industrial accidents. The Act concerning the general social security scheme of 1984 provided for the progressive integration of protection against industrial accidents into the general social security scheme. This integration, whose effective date was not yet established, would occur in the future pursuant to a new Act. The present legislation provided for the organization by the Government of tripartite consultation prior to the integration of protection against industrial accidents into the general social security scheme. The Convention required States to guarantee victims of industrial accidents or those having the right to minimum conditions of compensation while providing that, in the event of incapacity, benefits allocated to workers could be paid by the employer or by an insurance institution or a social security institution. According to the Government, the Convention did not require the integration of protection against industrial accidents into the social security scheme, nor did it indicate any preference for such a system. Even if a decision had been taken to integrate protection of industrial accidents into social security, there was no obligation under the Convention to implement such a decision. Moreover, the Convention did not prevent a change of this decision. Systems provided for by Portuguese law were thus authorized by the Convention. Convention No. 17 only guaranteed minimum compensation to workers who were victims of industrial accidents. Technically complex reasons had delayed the implementation of the integration of protection against industrial accidents into the general social security scheme. However, as indicated above, this integration would be carried out taking into account the legal obligation to engage in tripartite consultation. In addition, the Constitution provided trade unions and workers' committees the right to participate in the preparation of labour legislation, including laws concerning social security. Moreover, negotiations could also be organized between the Government and the social partners within the Council for Labour Dialogue.

(2) Involvement of medical experts in the determination of the degree of reduction of working capacity

The courts were responsible for determining the degree of working capacity and the compensation to be given to workers as a result of industrial accidents. The reduction of working capacity was established, taking into account the national table for those disabled through industrial accidents, which had been revised in 1993 following an agreement between the Government and the social partners. Contrary to the observations of the General Confederation of Portuguese Workers (CGTP), the courts were responsible for determining the degree of reduction in working capacity with the objective of ensuring a fair decision for the worker. This determination of the degree of reduction of working capacity required very specialized knowledge. The court was assisted by medical experts responsible for evaluating the degree of reduction of working capacity on the basis of their skills and of a national disability table. The experts carried out their task with total independence. Although sometimes they were also carrying out functions as consultants to insurance companies, nevertheless they were required to make their decisions independently. However, if there was any well-founded suspicion on the part of the worker with regard to the medical expert, the worker concerned could ask for the appointment of another expert who would or would not be approved by the judge. Some workers did have sufficient resources to pay the costs of an expert of their choice and did so. In addition, trade union organizations were sometimes offered the services of a medical expert to workers who had insufficient funds. With regard to the request of the CGTP concerning the implementation of the integration of protection against industrial accidents into social security because of difficulties regarding medical experts, the alternative solutions for determining the degree of reduction of working capacity were either to give this competence to an administrative body, or to maintain the competence of the courts. In all cases the presence of a medical expert would be necessary and the worker would be responsible for engaging an expert of his own choice. However, as the Government had indicated to the Committee of Experts, the comments of the CGTP concerning the medical experts had been submitted to the Ministry of Justice, but it should be pointed out that the reference in the report of the Committee of Experts to carrying out an inquiry was not to be considered a compromise made on the part of the Government.

(3) The criteria for determining compensation for industrial accidents

Contrary to the interpretation of the Committee of Experts, the CGTP commented on the very low level of payments made to compensate for industrial accidents, but did not say that they "continued to decrease". In reality, the compensation in industrial accident cases was not decreasing, and was reassessed periodically on the basis of criteria determined by law. The Agreement on Occupational Health and Safety concluded between the Government and the social partners within the Council for Labour Dialogue provided for the revision of not only the national disability table, but also the means for calculating compensation for industrial accidents and occupational diseases. The revision of the methods for calculating compensation was under way and the Government would send to the Office the definitive text on the methods for calculating compensation as soon as it was adopted. The allegations of the CGTP regarding the low level of compensation for industrial accidents should be supplemented as follows. In the event of temporary disability, the workers received compensation amounting to two-thirds of their salary. In the event of permanent disability, the workers received pensions whose value depended on the degree of disability. In the most serious cases of total disability for whatever work, the pension was equivalent to 80 per cent of salary, increased to 100 per cent with respect to family allowances. In less serious cases of permanent partial disability, the pension was equivalent to two-thirds of the reduction of their working capacity. Sometimes collective agreements granted such workers higher benefits and pensions, up to 100 per cent of the salary, particularly in cases of temporary disability. Therefore, benefits and pensions were dependent upon the degree of disability and on the salary of the workers. For this reason, workers who did not have a high salary and had an assessment of a slight disability received modest benefits. However, the circumstances of workers who were victims of industrial accidents to a certain extent improved when the tax assessment of benefits and pensions was more favourable than it was with regard to salaries, and that the workers who sustained permanent partial disability maintained their employment and their salary. Under the law, employment contracts did not terminate in the event of permanent total disability. If this were not the case, employers would be obliged to transfer the worker who had a permanent partial disability to a compatible job. In addition, the law did not allow employers to reduce the salaries of workers taking into account the degree of work disability or pensions received.

The Employers' members commended the Government for its comprehensive, precise and detailed report which addressed all the points raised in the report of the Committee of Experts, and provided information in response and in addition to the allegations made by the General Confederation of Portuguese Workers (CGTP). As there had not yet been any evaluation or assessment by the Experts, it was not appropriate for this Committee to evaluate or assess the situation. They said that at this point the Government should submit in writing everything they had stated before this Committee. With regard to the intention of the Government to integrate protection against industrial accidents into the general social security scheme, they agreed with the Government that the Convention did not make such integration compulsory. The Convention provided that there must be protection in the case of insolvency on the part of a private insurance company, so that compensation was guaranteed, but it did not specify the kind of insurance that must be provided for that purpose. They noted that the Committee of Experts did not comment upon or come to any conclusion on that point, but instead simply referred to the complaint of the CGTP. With regard to the determination of the degree of disability or compensation to be paid for such disability, they considered it obvious that medical experts must have a major say in determining degree of disability. Physicians were bound by the Hippocratic oath, and courts were entitled to appoint another physician to provide a second opinion where there was doubt or uncertainty. With respect to the allegation that the level of compensation was constantly decreasing, they noted that this was denied by the Government which said that levels of compensation were increasing, and said that the Government should report on this in writing, and provide information about its plan to revise the table of compensation and the table of incapacity. They concluded by stating that the Government should report on all developments in detail.

The Workers' members appreciated the additional information provided by the Government in response to the observations of the Committee of Experts, as this was a good example of dialogue within the supervisory system. They pointed out the importance of compensation for industrial accidents in national legislation and of the discussion on new developments in the framework of the application of technical agreements. They referred to the comments of the Committee of Experts in 1986, 1990 and 1995 as well as the observations of the CGTP and the information communicated by the Government, and concluded by first insisting upon the implementation of the provisions in the preliminary tripartite agreement concerning occupational health and safety, particularly with regard to the revision of legislative provisions concerning methods for calculating benefits owing in the event of industrial accidents or occupational diseases. They also insisted upon the need for the Office to be informed about all progress that took place in this matter.

The Workers' member from Portugal noted that the Convention was binding upon all member States that had ratified it, including Portugal. He also recalled that the objective of the Convention was to guarantee to victims of industrial accidents and their direct descendants compensation conditions that permitted such persons to live with a minimum of dignity. However, he regretted the fact that Portugal had a higher percentage of industrial accidents and a greater number of fatal accidents than any other Member State of the European Union. In his view, the Government did not appropriately guarantee the conditions required by the Convention for the following reasons: (i) it had proven to be incapable of modernizing the legal framework established during the former dictatorship; (ii) the scheme for compensating industrial accidents was worse than those for other kinds of accidents (such as traffic accidents), which could be considered to be a depreciation of the value of the lives of workers; (iii) the pensions for victims of industrial accidents who were partially or permanently disabled only had a symbolic value because they were so low and had not been readjusted; (iv) the calculation of pensions was made on the basis of two-thirds of the basic salary although they should be based upon real salary, including regular benefits; (v) damage to mental health resulting from work accidents was not taken into account; (vi) the insurance companies were the primary beneficiaries of the system for compensating industrial accidents; (vii) the Government was not complying with the 1984 Social Security Act which required it to integrate compensation for industrial accidents into the general social security scheme; and (viii) the vulnerability of victims of industrial accidents was not taken into account in the courts at the time of establishing the appropriate pension. He hoped that the Government would not fail to ensure compliance with the Convention both through legislation and in practice and would take into consideration his comments.

The Workers' member of Greece subscribed to the statements of the Workers' representative of Portugal and referred to the insufficient attention that society gave to victims of dismissals because of industrial accidents. He said that Portugal did not mistreat victims of industrial accidents any more than other countries. He noted the great physical, psychological and economic difficulties suffered by such accident victims, who did not receive much assistance from society. He was not in favour of the possible integration of protection against industrial accidents into the social security scheme. Moreover, he said that the Government should provide more detailed information concerning benefits received after an industrial accident and he asked whether such benefits were established once and for all or were adjusted after a short period of time, because what was most difficult for a victim of an industrial accident was his later survival. With regard to the former kinds of benefits, there should be a state body or some other official body that would fix and guarantee them rather than private companies, given their financial insecurity. He indicated that the reply by the Government should be to state that there was a body capable of guaranteeing purchasing power for both the victims of industrial accidents and their families, and that to deny this was to fail to come to the point. He added that in dealing with this matter more account should be taken of human rather than strictly legal or statistical aspects, and advised the Government to deal with this matter in a better fashion.

The Government representative stated in reply to the questions raised by the Workers' members that the labour courts were competent to determine the degree of disability of workers who were victims of industrial accidents and the pension to be received by the workers. He added that from the legal point of view and according to the Government the situation with regard to the workers was completely clear. It was not the social security system that was required to pay benefits and pensions, but rather the insurance companies or those enterprises whose sufficient economic capacity was recognized. This system would continue until the implementation decree entered into force and the integration of protection against industrial accidents into the general social security scheme took place. With regard to the matter of the report of the Committee of Experts concerning the legislation which he considered was badly understood by the Employers' members, he pointed out that the amounts paid to the workers periodically increased on the basis of criteria established by law. He reiterated that his country was in compliance with the provisions of the Convention. With regard to the statement of the CGTP that it was necessary for victims of industrial accidents to receive better protection he considered this to be a request for negotiation with the Government. He emphasized that there were both such a determination and compensation of workers and that, pursuant to Section 23 of Act No. 2127 (published in the Legislative Series, 1965), the basic compensation, in the calculation of pensions, comprised the basic wage and all of the other benefits regularly paid to the workers. With regard to the relation between industrial accidents and dismissals referred to by the Workers' member of Greece, he noted that Portugal had ratified the Termination of Employment Convention, 1982 (No. 158) last year, and that the national legislation was entirely in compliance with this instrument. He concluded by emphasizing that the Convention did not establish any preference for a public system of protection against industrial accidents and that it was an internal decision for each State as to whether or not to include such protection in the general social security scheme.

The Committee took note of the observations of the Committee of Experts, the statement of the Government representative of Portugal and the discussion that took place thereafter. It felt that the information furnished by the Government representative was quite useful. Further, it took into account the report of the Government that it intended to integrate protection against industrial accidents into the social security scheme and that necessary tripartite consultation would be carried out in this context. The Committee also agreed with the Government representative that the Convention did not mandate integration of protection against industrial accidents with social security or any specific level of compensation. In the circumstances and considering that the Committee of Experts had not themselves made any evaluation of the issues involved, the Committee urged that the Government should furnish a full written report in confirmation of the oral statement. It further called for implementation of the reported Agreement with social partners on occupational safety, hygiene and health and furnished particulars thereof as well in its report.

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

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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.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

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) and 102 (minimum standards) together.

The Committee notes the observations of the General Confederation of Portuguese Workers–National Trade Unions (CGTP–IN), and the General Workers’ Union (UGT) communicated with the Government’s reports.

Part V (Old-age benefit). Article 26 of Convention No. 102. Pensionable age. The Committee notes the information provided by the Government in its report on the reform of the pension system undertaken in the past decades in order to enhance financial sustainability. The modifications introduced included linking the pensionable age to the average life expectancy. Accordingly, the normal pensionable age has been gradually increased in the past years up to 66 years and 5 months in 2019 and 2020, as set out in Decree No. 25/2018 of 8 January 2018. The Committee notes the observations by the CGTP–IN and its allegation that this modification is not in conformity with Article 26(2) which allows for an increase of pensionable age beyond 65 years only with due regard to the working ability of older persons in the country concerned. In addition, the CGTP–IN points out that linking the pensionable age to the average life expectancy will bring variations in the pensionable age from year to year. The CGTP–IN further indicates that this creates uncertainty for future pensioners who are no longer able to anticipate the age at which they can draw a full pension. The Committee also notes the concerns raised by the UGT in its observations regarding the detrimental impact that a yearly determination of the pensionable age, based on sustainability criteria, will have on pensioners, and regarding the lack of agreement among social partners on the implementation of this measure. The Committee also notes the information provided by the Government in its 2019 report on the application of the European Code of Social Security and its Protocol (Code), which contains a provision similar to Article 26, in which it indicates that “the number of elderly persons aged 65 compared to the number of persons in working age (from 15 to 64) reached 33.6 per cent in 2018 compared to 20.3 per cent in 1990”. The 2019 report also provides statistical data showing that not only the general life expectancy but also the disability free life expectancy (DFLE) have increased over the past years. The Committee notes this information and requests the Government to continue providing statistical data on the working ability of older persons and notably on the disability free life expectancy, the life expectancy at 65 and the employability of persons aged 65 and over.

Part VI (Employment injury benefit). Article 35. Rehabilitation and reintegration. The Committee notes the information provided by the Government in reply to its previous request concerning rehabilitation and reintegration services.

Article 36. Payment of compensation in the form of a lump sum. In its previous comments, the Committee requested the Government to provide information on how private insurance companies verify that a lump sum paid instead of a periodical pension would be properly utilized, as required by Article 36. The Government replies that in case of incapacity for work of less than 30 per cent, the conversion of a periodical pension into a lump sum is permitted if the amount of pension does not exceed six times the indexing reference of social support, the IAS (indexante dos apoios sociais). The Government further indicates that in case of incapacity for work of more than 30 per cent, the conversion of a periodical pension into a lump sum is permitted only partially and at the request of a beneficiary. According to the UGT, the payment of a lump sum is advantageous for insurance companies but prejudicial to injured workers. The Committee recalls that in accordance with Article 36(3), the periodical payment may be commuted for a lump sum only where the degree of incapacity is slight or where the competent authority is satisfied that the lump sum will be properly utilized. The Committee therefore requests the Government to ensure that in case of incapacity for work of more than 30 per cent, the competent authority is satisfied that the part of the benefit that can be paid as a lump sum will be properly utilized.

Part XI (Standards to be complied with by periodical payments). Article 65(10).

(a) Review of the rates of employment injury pensions. In its previous comments, the Committee noted the delay in the publication of uprated employment injury pension rates and expressed the hope that the Government would in future issue the reviewed rates of employment injury pensions at the same time as other social security pensions. The Committee notes the CGTP-IN’s indication that the updating of employment injury benefits continues to be made with considerable and unjustified delay. The Committee requests the Government to provide its comments in this respect.

(b) 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 review of the benefits rates for the period 2014–15. The Committee notes that unlike minimum pensions, benefits received by a standard beneficiary were not adjusted according to the increased consumer price index (CPI) rate. The Committee further notes the CGTP-IN’s allegations that the purchasing power of pensions has not been ensured, as required by Article 65(10) and that some pensions were not indexed from the period 2009 to 2015, although the cumulative inflation rate had reached 9 per cent by 2015. The Committee also notes from the 2019 report on the Code that, since 2017, the adjustment of pensions to the CPI depends on the amount of the pension and on the gross domestic product (GDP) growth rate: if the GDP growth was less than 2 per cent, only pensions up to 1.5 IAS are indexed according to full CPI rate; if the GDP grew from 2 per cent to 3 per cent, indexation according to the full CPI rate is extended to pensions between 1.5 and six times the IAS; and if the GDP grew by more than 3 per cent, the full CPI rate is also applied to adjustment of pensions over six times the IAS. According to the 2019 report, the CPI rate of the previous year reached 1.03 per cent and the average GDP growth rate of the last two years was 2.58 per cent. Pensions were therefore adjusted in 2019 as follows: 1.6 per cent for pensions up to €871.52 (2 x IAS), 1.03 per cent for pensions between €871.52 and €2,614.56 (between 2 and 6 x IAS) and 0.78 per cent for pensions above €2,614.56 (more than 6 x IAS). The Committee observes that the new mechanism delinks pension adjustment from changes in the general level of earnings in the country, which is put forward by Convention No. 102, and links it instead to changes in GDP rates. The Committee further observes that in case real GDP growth is less than 2 per cent, adjustment of all pensions over 1.5 times the IAS according to the new rules will not permit the maintenance of their purchasing power vis-à-vis inflation, which is the primary objective of Article 65(10). In order to ascertain to what extent pension adjustments have effectively permitted the maintenance of the purchasing power of all pensions in payment, the Committee requests the Government to supply data on the changes in the index of earnings, the cost of living, the amount of old-age, employment injury, invalidity and survivors’ benefits, as well as changes of the GDP since 2010, in accordance with Title VI of the report form for the Convention.

Part XIII (Common provisions). Article 69. Suspension of employment injury benefits. In its previous comments, the Committee noted that, according to sections 14–17 of Act No. 98/2009, employers’ liability to compensate occupational accidents would not be engaged, inter alia, in case of gross negligence, force majeure or where the accident is due to another worker or a third person. It further noted that such cases were taken up by insurance carriers, given that the insurance contracted by employers for cases of occupational accidents aims at transferring to the insurer the obligations of the employer. In light of this, the Committee hoped that, in drafting the implementing regulations of the Act, the Government would take into account that the established grounds for the suspension of benefits might go beyond what is permitted by the Convention and requested the Government to take the necessary measures to ensure that, in applying sections 14–17 of Act No. 98/2009, the competent authorities would take into account the requirements of the Convention, which limits the causes of benefit suspension to those listed in Article 69. The Committee once again requests the Government to provide information on any measures taken to such effect.

Social security and poverty reduction. In its previous comments, the Committee noted that austerity measures had resulted in reducing social expenditure, greater precarity and poverty and requested the Government to provide information on the dynamics of poverty in the country, including data on the number of beneficiaries and the minimum amounts of social benefits in comparison with the poverty threshold. The Committee notes the Government’s statement that along with the general improvement of the Portuguese economy, targeted social policy measures widened the coverage of the minimum income schemes, and contributed to improving living conditions in households whose income was considerably below the poverty threshold. The Committee notes from the 2019 report on the Code the decrease in residents who were at risk of poverty (1 per cent less than in 2016 and 2.2 per cent less than in 2013). The 2019 report further indicates that income from retirement and survivors’ pensions contributed to a 21 per cent decrease in the at risk-of-poverty rate. The Committee notes the CGTP–IN’s observations indicating a deterioration in terms of coverage and level of non-contributory benefits, particularly regarding family allowances, unemployment allowances, the social integration income (RSI), and the solidarity supplement for older persons (CSI). The Committee hopes that the Government will continue taking measures on the sustainable reduction of poverty and extension of coverage by the minimum social security benefits and requests the Government to continue providing statistical data in this respect.

Part XIII (Common provisions). Article 71. Financing of the social security system. The Government indicates that, under the EU/IMF Economic Adjustment Program for Portugal, pensions, subsidies and other similar monetary benefits have been subject to the extraordinary contribution of solidarity (Contribuiçao Extraordinâria de Solidariedade) during the period 2012–16. The Committee notes in this regard the observations of the CGTP-IN, which alleges that extraordinary pension contributions form part of restrictive measures put in place by the Government, which raises issues of compliance with Article 71. The Committee recalls that, in accordance with Article 71 of the Convention, the cost of the benefits provided in compliance with the Convention and the cost of the administration of such benefits shall be borne collectively, and requests the Government to provide statistical data on the share of the insurance contributions borne by the employees of the total of the financial resources allocated to the protection of employees and their dependants, according to the report form for the Convention.

Article 1 of Convention No. 12. Coverage of all agricultural wage-earners, and application of the Convention in practice. The Committee notes the Government’s indication that Portugal’s legislation on compensation for employment accidents is applicable to all workers, including in the agricultural sector. It also notes from the data supplied by the Government an increase in the number of employment accidents in agriculture, livestock, hunting, forestry and fishing. In this regard, the Committee notes that, according to the UGT, the measures taken to prevent occupational accidents in the agricultural sector, one of the sectors with the highest rate of employment accidents, are not sufficient. The UGT also raises concerns as to the high rate of undeclared work in the agricultural sector, which is difficult for the Working Conditions Authority (Autoridade para as Condições de Trabalho, ACT) to detect. In this regard, the UGT refers to the National Campaign against Undeclared Work launched by the ACT in 2014–15 to tackle undeclared work and ensure the coverage of the workers concerned by the occupational accident insurance scheme. The Committee requests the Government to provide information on measures taken or envisaged to prevent work-related injuries in the agricultural sector and to refer to its comments under the Safety and Health in Agriculture Convention, 2001 (No. 184), in this regard. Furthermore, the Committee requests the Government to provide information on measures taken or envisaged to ensure that all agricultural wage-earners are effectively covered in case of work-related injury, in accordance with Article 1.

Article 1 of Convention No. 17 and Article 71(3) of Convention No. 102. Responsibility of the State for the due payment of employment injury benefit. In its reply to the Committee’s previous request, the Government supplies statistics on the number of inspections carried out and sanctions imposed. In this light, the Committee notes that the number of inspection visits decreased during the period 2011–15. The Committee also notes the UGT’s allegation that insurers are reported to be slow in paying compensation and that subcontractors do not conclude the required insurance policies, making it more difficult, if not impossible, to compensate workers. The Committee recalls that Article 1 of Convention No. 17 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, which includes appropriate enforcement and compliance measures. The Committee therefore requests the Government to provide information on the measures taken or envisaged to improve the compliance of the parties concerned with their employment injury insurance obligations and to ensure the effective payment of the compensation due to injured workers or their dependants in case of employment injury. The Committee also requests the Government to refer to its comments under the Labour Inspection Convention, 1947 (No. 81), with respect to the maintenance of sufficient numbers of labour inspectors.

Application of Convention No. 18 in practice. In its previous comments, the Committee requested the Government to provide information on the under-notification of occupational diseases and explain the manner in which medical practitioners intervene in the clinical recognition of occupational diseases. The Committee notes the Government’s reply, which refers to Legislative Decree No. 2/82 of 5 January 1982, on mandatory treatment of a suspected or worsening case of occupational disease and explains stages of the procedure for certifying an occupational disease. The Government also refers to the guidelines issued by the General Directorate of Health pursuant to Article 2(2)(a) of Regulatory Decree No. 14/2012 of 26 January 2012 and the Second National Occupational Health Programme (2013–17) which regulate the participation of medical practitioners in the clinical diagnoses of occupational diseases. The Committee notes the observations made by the UGT and the CGTP-IN, which indicate that most occupational diseases are not diagnosed as such, that occupational diseases are under-reported and that, as a result, there is a lack of necessary statistical data and relevant studies on the incidence and prevalence of occupational diseases. They also stress the need for increased awareness within the medical profession about the causal links between pathologies and occupational activities. The Committee requests the Government to refer to its comments under the Occupational Safety and Health Convention, 1981 (No. 155), with respect to measures to improve the reporting of occupational accidents and diseases. The Committee also requests the Government to provide information on measures taken or envisaged to improve the collection of statistical data on the incidence and prevalence of occupational diseases.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Please refer to the comments made under the Social Security (Minimum Standards) Convention, 1952 (No. 102).

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the report provided by the Government and its numerous annexes. It also notes with interest the communications between the Government and the Portuguese Confederation of Tourism and the General Union of Workers concerning the implementation of the Convention in practice. The Committee notes that the national legislation giving effect to the Convention has undergone certain modifications during the reference period, as the adoption in 2003 of a new Labour Code established a new legal framework for the compensation of employment accidents for employees in the private sector. However, as indicated by the Portuguese Confederation of Tourism, the implementing legislation that was previously in force still remains applicable since the texts envisaged by the new Labour Code have not yet been adopted.

The General Union of Workers expresses concern at the number of employment accidents in the country, which it considers extremely high, despite the existence of adequate legislation and it therefore considers it necessary to strengthen the human, technical and financial resources available to the labour inspectorate. It also expresses concern at the frequent failure to comply with the obligation of insurance against employment accidents in the case of subcontracting, and the delays by insurers in paying compensation.

While noting the concerns expressed by the above organizations, the Government emphasizes that labour inspection is a function invested in the public authority for which it benefits from independence in the discharge of its duties. It adds that action has been taken to recruit more labour inspectors, thereby enabling the institution to discharge its functions more effectively. Accordingly, in 2005 the labour inspectorate inspected 31,593 establishments employing some 550,000 persons. The Government also indicates that workers employed under subcontracting arrangements enjoy the same legal protection as other workers, particularly with regard to the obligation for their employers to take out insurance against the risk of employment accidents. Furthermore, in relation to slowness in the payment of employment accident compensation, the Government states that, where such situations occur, the insurance institutions pay the victims concerned the arrears to which they are entitled, as well as penalties for late payment.

The Committee takes due note of this information and requests the Government to keep it informed of the adoption of any new laws or regulations issued under the new Labour Code relating to compensation for employment accidents. The Government is also requested to provide additional information in its next report on compliance in practice with the obligation to take out insurance against the risk of employment accidents in the context of subcontracting arrangements and, in view of its specific characteristics, in agriculture. The Committee would also be grateful if the Government would provide detailed information on the extent of the deferred payment of employment accident benefit, and on any measures adopted or envisaged to ensure that victims of employment accidents can receive their benefit without delay and no later than the fifth day after the accident, in accordance with Article 6 of the Convention. Finally, the Government is requested to provide, in accordance with Part V of the report form, statistical information on the payment of benefits in cash and in kind, with an indication of the total cost of each of these types of benefit and the average amount of benefit per person, as well as indications on the total cost of the application of the legislation on workers’ compensation for accidents or accident insurance.

Furthermore, noting the case law provided by the Government, the Committee would be grateful if the Government would provide further information in its next report on the effect given in practice to sections 290 and 291 of the new Labour Code, which envisage the various conditions for the exemption of the employer’s liability in the event of employment accident, with an indication of whether these conditions are applicable by extension to insurers guaranteeing employers against the risk of employment accidents.

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

The Committee notes the information submitted by the Government in its last report as well as that supplied by a Government representative to the Conference Committee in June 1995 and the subsequent discussion. It also notes the comments of the Confederation of Portuguese Industry.

The Government indicates in its report, that the legal regime for the compensation of occupational accidents is now governed by Act 100/97 of 30 September 1997 and its implementing Decree No. 143/99 of 30 April 1999. Compensation for occupational accidents continues to be covered by insurance companies since, under section 37 of the Act, employers are obliged to transfer responsibility for this compensation to the entities legally authorized to undertake such insurance. The Committee takes note of this information. It requests the Government to supply in its next report detailed information on the impact of the new legislation on the application of each Article of the Convention. Please also supply information on methods of calculation of compensation, a point which has given rise to previous comments by the Committee.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the detailed information supplied by the Government in its report in reply to its previous direct request, as well as the comments made by the General Confederation of Portuguese Workers (CGTP). Referring to the progressive integration of protection against industrial accidents into the general social security scheme, as set out in section 72 of Act No. 28/84 of 14 August 1984, the Committee notes that the situation has remained unchanged and that compensation for industrial accidents continues to be covered by insurance companies.

In this respect, the CGTP stated in its comments that victims of industrial accidents find themselves in an unequal position confronting insurance companies in court because, unlike the insurance companies, they cannot afford to be represented by a physician during the medical examination on the basis of which the court determines the degree of incapacity. Moreover, the courts frequently appoint as presidents of medical boards physicians from insurance companies. Finally, the CGTP alleges that the amounts of payments in compensation in industrial accidents continue to decrease and in many cases are very low. For these reasons, the CGTP considers the integration of protection against industrial accidents into the general social security scheme to be of extreme urgency.

In its reply, the Government indicated that the Labour Procedures Code, approved by Legislative Decree No. 272-A/81 of 30 September 1981, in Chapter 1 of Title 6, which regulates procedures arising out of industrial accidents and diseases, would appear to take due account of the interests of the parties in such procedures. However, the Government informed the Ministry of Justice of the allegations of the CGTP for the purpose of clarifying the facts. As regards the low amounts of payments in compensation of industrial accidents, the Government indicated that it had signed with the social partners, including the CGTP-IN, the Agreement on Occupational Safety, Hygiene and Health which provided, inter alia, for the review of the legal provisions concerning methods for calculating compensation for occupational accidents and diseases, and that this revision was at present at the preliminary stage.

The Committee notes this information. It hopes that in its next report the Government will be able to indicate any progress made in the implementation of section 72 of Act No. 28/84. As regards the matters raised by the CGTP, the Committee would like to be informed of the results of the inquiry undertaken by the Ministry of Justice and of the revision of provisions concerning methods for calculating compensation for occupational accidents referred to by the Government.

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

The Committee notes the detailed information supplied by the Government in its report. It also notes the information that the progressive integration of protection against industrial accidents into the general social security scheme, as set out in section 72 of Act No. 28/84 of 14 August 1984, still has to be regulated. Workers' compensation for accidents is therefore still covered by insurance companies and employers' bodies which, under their normal procedure, transfer this responsibility to insurance companies. The Committee notes this information and requests the Government to supply imformation on any development in the implementation of section 72 of the above Act.