Hours of Work (Industry) Convention, 1919 (No. 1) - Portugal (Ratification: 1928)

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

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The Committee notes the observations of the General Confederation of Portuguese Workers-National Trade Unions (CGTP-IN) communicated with the Government’s report.

Articles 2 and 5 of the Convention. Exceeding normal hours of work. Calculating hours of work as an average. Compressed working week. Time banking. Following its previous comments, the Committee notes the information provided by the Government that the Labour Code implemented the provisions of the Working Time Directive 2003/88/EC, issued by the European Parliament and Council on 4 November 2003, which anticipates various mechanisms for organizing working time that diverge from the eight-hour per day and 40-hour per week framework, allowing for the adjustment of work schedules to meet the needs of the undertaking. The Government also informs that flexibility and time-banking arrangements are schemes for the redistribution of working hours, aimed at simplifying the organization of work schedules, with a specific number of hours designated as the standard daily and/or weekly working hours, while not altering the overall average of the standard working time. The Committee notes the observation of the CGTP-IN which points out that these systems fail to adhere to the provisions of the Convention, particularly when considering the limited scenarios in which the Convention permits deviations from the prescribed maximum working time limits. CGTP-IN further asserts that national legislation does not confine the application of these systems to exceptional situations, nor does it restrict their implementation through collective agreements. Additionally, CGTP-IN indicates that these systems typically pose a substantial impediment to balancing the professional and personal/family lives of employees. The Committee wishes to emphasize that going beyond the daily and weekly limits established by the Conventions is likely to affect the health and well-being of workers and their work–life balance (2018 General Survey on working-time instruments, paragraph 74). Therefore, the Committee requests the Government to take the necessary measures to ensure that the implementation of flexible working-time arrangements, such as averaging hours of work, compressed work-weeks or time banking, is in compliance with the provisions of the Convention and the limits to daily and weekly working hours established by the Convention.

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

Articles 2 and 5 of the Convention. Exceeding normal hours of work. Calculating hours of work as an average. Compressed working week. Time banking. The Committee notes the adoption of the new Labour Code – Act No. 7/2009 of 12 February 2009, that repeals the Labour Code of 2003. It notes that sections 204 and 205 of the Labour Code of 2009, which reproduce provisions of the Labour Code of 2003, establish that normal hours of work may be defined as an average, either through collective agreement or through agreement between the employer and the worker. In the first case, daily limit may be increased up to four hours and the working week may not exceed 60 hours (or 50 hours over a period of two months). In the second case, normal hours of work may be increased by up to two hours per day provided that the length of the working week may not exceed 50 hours (flexibility schemes). Under sections 207 and 211 of the new Labour Code, averaging of hours of work must be established on the basis of a reference period, which is set in the applicable collective agreements and may not exceed 12 months, or, in the absence of such provision, on the basis of periods of up to four months. Section 206 provides for the possibility of extending, either through collective agreement or agreement between the employer and the worker, the regime of averaging hours of work to the entirety of employees in a team, section or economic unit when a certain majority is covered by collective agreement or has accepted the employer’s proposal (group flexibility). Sections 208–208B regulate the time-banking regime. Through collective agreement, normal hours of work may be increased by up to four hours per day and may not exceed the limit of 60 hours per week and 200 overtime hours per year. Annual limits may be set aside through collective agreement when the objective is to avoid the reduction in the number of workers, in which case such limit may be applied for a period of up to 12 months (section 208). Under individual agreement between the employer and the worker, normal hours of work may be increased by up to two hours per day and may not exceed the limit of 50 hours per week and 150 overtime hours per year (section 208A). Section 208B provides for the possibility of extending, through collective or individual agreement and under certain conditions, the regime of time banking to the entirety of employees in a team, section or economic unit when a certain majority of these employees is covered by collective agreement or has accepted the employer’s proposal in this sense. Finally, section 209 provides for the possibility of increasing normal hours of work by up to four hours per day (compressed working-time arrangement): (a) through collective or individual agreement to compress weekly hours of work in a maximum of four days of work; or (b) through collective agreement establishing a working-time arrangement of a maximum of three consecutive days followed by at least two days of rest. In the latter case, normal hours of work per week shall be respected, on average, over a reference period of 45 days.

The Committee notes the observations of the General Confederation of Portuguese Workers (CGTP) and the General Workers’ Union (UGT) attached to the Government’s report. The CGTP indicates that sections 204 and 205 (flexibility schemes) and 208 (time banking) of the Labour Code are in violation of Articles 2 and 5 of the Convention. The UGT indicates that the measures introduced by the new Labour Code on hours of work, especially the time-banking regime, were prompted by outside pressure as a result of a Memorandum of Understanding between the Government and the “Troika”. The Committee notes the Government’s indication in reply to the comments of the CGTP according to which, while the flexibility and time-banking schemes provide for an increase in the number of hours constituting the normal daily and/or weekly period of work, on the average none of these mechanisms change the normal working period. In fact, a worker may work more hours in one day or week and fewer hours in another day or week so that the average period of work over a predetermined period (reference period) is eight hours per day and 40 hours per week, which is less than the 48-hours maximum period envisaged in the Convention.

The Committee further notes the Government’s indication that the present legislation promoting flexibility of working-time arrangements responds to new needs regarding the organization of work and aims at increasing the productivity and competitiveness of the national economy. The Government also indicates that some of the provisions of the Convention are outdated and do not reflect the current labour environment that has moved towards a different organization of work and greater protection of the health and safety of workers.

The Committee recognizes that modern flexible working-time arrangements could call into question the relevance of certain restrictions imposed by the Convention on the maximum duration of daily and weekly working hours, but wishes to emphasize the importance of reasonable limits and protective safeguards in devising such flexible arrangements, so as to ensure that modern working-time arrangements are not prejudicial to the health of workers or to the necessary work–life balance. In this regard, the conclusions of the ILO Tripartite Meeting of Experts on Working-Time Arrangements, held in October 2011, stated that the provisions of existing ILO standards relating to, inter alia, daily and weekly hours of work, remain relevant in the twenty-first century and should be promoted in order to facilitate decent work. In this connection, the Committee recalls that the Convention allows exceptions to the maximum of eight hours a day and 48 hours a week in very limited and clearly defined circumstances, namely: (i) distribution of hours of work over the week (Article 2(b)); (ii) averaging of hours of work over a period of three weeks in case of shift work (Article 2(c)); (iii) processes required to be continuous, subject to a maximum of 56 hours a week on average (Article 4); (iv) averaging of daily hours of work in exceptional cases (Article 5); and (v) permanent exceptions (preparatory, complementary or intermittent work) and temporary exceptions (exceptional pressure of work) (Article 6). It recalls once again that Article 5 of the Convention allows hours of work to be averaged only in exceptional cases where it is recognized that the limit of eight hours per day and 48 hours per week cannot be applied, and only by collective agreement given the force of regulations. The Committee accordingly hopes that in authorizing flexible working-time arrangements, such as averaging hours of work, the compressed work-week or time banking, the Government will take the necessary measures to ensure that the implementation of such arrangements is in compliance with the provisions of the Convention.

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

The Committee notes the adoption of the Labour Code, Act No. 99/2003, Act No. 35/2004 to regulate the Labour Code and Legislative Decree No. 326‑B/2007 on the Authority for Conditions of Work (ACT).

Article 2 of the Convention. Exceeding the normal hours of work. The Committee draws attention to sections 164 and 165 of the Labour Code which allow hours of work to be variable. Section 164(1) provides that by means of a collective agreement the normal period of work may be defined as an average, in which case the working day may be extended by wa maximum of four hours provided that the working week may not exceed 60 hours (or 50 hours over a period of two months), excluding any overtime worked for reasons of force majeure. In addition, section 165 provides that by agreement between the employer and the workers, the normal working day may be exceeded by up to two hours provided that the length of the working week may not exceed 50 hours, excluding any overtime worked for reasons of force majeure. The Committee recalls that the Convention allows exceptions to the maximum of eight hours a day and 48 hours a week in very limited and clearly defined circumstances, namely: (i) distribution of hours of work over the week (Article 2(b)); (ii) averaging of hours of work over a period of three weeks in case of shift work (Article 2(c)); (iii) processes required to be continuous, subject to a maximum of 56 hours a week (Article 4); (iv) averaging of daily hours of work in exceptional cases (Article 5); (v) permanent exceptions (preparatory, complementary or intermittent work) and temporary exceptions (exceptional pressure of work) (Article 6). Observing that the limits of daily and weekly hours of work provided for in sections 164 and 165 are not consistent with the standards set out in the Convention, the Committee requests the Government to explain in detail the flexibility scheme established in sections 164 and 165 of the Labour Code.

The Committee further notes that section 6 of Legislative Decree No. 237/2007 of 19 June 2007 on mobile workers in the road transport sector establishes that the weekly hours of work, including overtime, may not exceed 60 hours. Noting that section 177 of the Labour Code provides for special schemes, the Committee recalls that road transport falls within the scope of the Convention and that, consequently, both the basic standard of eight hours per day and 48 hours per week and any permissible exceptions must cover the workers in this sector. The Committee requests the Government to explain this point in detail.

Article 5. Calculating hours of work as an average. The Committee notes that sections 166 and 169 of the Labour Code provide that averaging of hours of work must be established on the basis of a reference period, which is set in the applicable collective labour agreements and may not exceed 12 months, or, in the absence of such provision, on the basis of periods of up to four months. The Committee points out that this Article of the Convention allows hours of work to be averaged only in exceptional cases where it is recognized that the limit of eight hours per day and 48 hours per week cannot be applied, and only by collective agreement given the force of regulations. The Committee accordingly requests the Government to indicate the measures taken or envisaged to bring the legislation into line with the requirements of the Convention on this point.

Article 6. Permanent and temporary exceptions. The Committee notes that section 177(1) of the Labour Code provides that by written agreement, persons engaged in preparatory or complementary work which, because of its nature, can be carried on only outside normal working hours, may be excluded from work schedules. Section 177(2) adds that provision may be made for other circumstances by collective agreement. The Committee draws the Government’s attention to the fact that the Convention requires regulations to be made, after consultation, to determine permanent and temporary exceptions by industry or by occupation. The Committee therefore asks the Government to indicate the measures taken or envisaged in order to give full effect to this Article of the Convention.

Article 7. List of exceptions. The Committee notes the list of the establishments which are authorized to carry out continuous processes or to exceed the limits on hours of work established by law. The Committee would be grateful if the Government would provide further information on work which is deemed to require a process to be carried on continuously within the meaning of Article 4 of the Convention, the recourse had to the agreements provided for in Article 5, and the regulations made pursuant to Article 6 and their application.

Part VI of the report form. Practical application. The Committee notes the statistical information provided by the Authority for Conditions of Work showing infringements reported by the labour inspectorate during the period 2003–07. It also notes the comments of the General Workers’ Union (UGT) on developments in working time in Portugal. The Committee requests the Government to continue to provide general information on the manner in which the Convention is applied, including extracts of reports by the inspection services indicating the number of workers covered by the legislation, the number and nature of contraventions reported, etc.