Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106) - Portugal (Ratification: 1960)

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)

Articles 7(2) and 8(3) of the Convention. Compensatory rest. The Committee notes the adoption of Act No. 7/2009 of 12 February 2009 issuing the new Labour Code, which repeals Act No. 99/2003 of 27 August 2003. The Committee notes that, under the terms of sections 232 and 233 of the new Labour Code, weekly rest of at least 24 consecutive hours shall be granted to each worker.

The Committee also notes the comments of the General Confederation of Portuguese Workers (CGTP) of 7 June 2013, in which the CGTP emphasizes that under section 9(2) of Act No. 23/2012 of 25 June 2012, subsections 1 and 2 of section 229 of the new Labour Code – which grant workers the right to compensatory rest for additional hours worked on working days, an additional weekly rest day or a day of leave – have been repealed. The CGTP adds that, under section 7(2) of Act No. 23/2012, the clauses of any collective agreement or contract signed before the entry into force of Act No. 23/2012 which provide for compensatory rest for additional hours worked on a working day, an additional day of weekly rest (any day of weekly rest granted under a collective agreement over and above the 24-hour rest period required by the law) or a day of leave, shall be null and void. In its report, the Government emphasizes first that compensatory rest for any work performed during daily rest, compulsory weekly rest or a day of leave in an enterprise authorized to remain open has been maintained. The Government adds that the amendments made by Act No. 23/2012 were necessary by virtue of the commitments made within the framework of the Memorandum of Understanding of May 2011 concerning the financial assistance granted by the International Monetary Fund, the European Central Bank and the European Commission. The Government adds that, in ruling No. 602/2013 of 20 September 2013, the Constitutional Court confirmed the validity of section 9(2) of Act No. 23/2012 in relation to repealing subsections 1 and 2 of section 229 of the Labour Code, but found unconstitutional section 7(2). The clauses of any collective agreement or any contract signed prior to the entry into force of Act No. 23/2012, to which the CGTP refers, are therefore maintained. While noting the Government’s explanations concerning the recent amendment to section 229 of the Labour Code, the Committee requests the Government to ensure that compensatory rest is compulsorily granted in all cases of exemptions, whether permanent or temporary, from the normal weekly rest scheme of a minimum of 24 consecutive hours, in accordance with Articles 7(2) and 8(3) of the Convention.

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

The Committee notes the adoption of Act No. 99/2003 of 27 August 2003 issuing the Labour Code, Act No. 35/2004 issuing regulations relating to the Labour Code, Act No. 4/2008 of 7 February 2008 on employment contracts in the performing arts, and Legislative Decree No. 326-B/2007 of 28 September 2007 concerning the Authority for Conditions of Work (ACT).

Article 7, paragraph 2, of the Convention. Compensatory rest. The Committee notes that, under section 13(3) of Act No. 4/2008, compensatory rest for work performed on a weekly rest day must be granted within a maximum period of six months. The Committee wishes to emphasize that, according to the spirit of the Convention, the period in which compensatory rest is granted must not be too long and draws the Government’s attention to Paragraph 3(a) of the Weekly Rest (Commerce and Offices) Recommendation, 1957 (No. 103), which indicates that persons to whom special weekly rest schemes apply must not work for more than three weeks without receiving the rest periods to which they are entitled. The Committee requests the Government to supply further details in this regard.

Part V of the report form. Practical application. The Committee notes the statistical information provided by the ACT for the 2003–07 period, and also the statistics relating to the autonomous region of the Azores. The Committee requests the Government to continue to provide general information on the manner in which the Convention is applied in practice, including statistical information on the number of workers covered by the relevant legislation, extracts of the reports of the ACT indicating the number and nature of infringements reported and the penalties imposed, copies of collective agreements containing clauses on weekly rest, etc.