Termination of Employment Convention, 1982 (No. 158) - Portugal (Ratification: 1995)

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations of the General Confederation of Portuguese Workers–National Trade Unions (CGTP–IN) and the General Workers’ Union (UGT), forwarded by the Government. The Committee requests the Government to provide its comments in this regard.

Legislative developments. In reply to the Committee’s comments, the Government indicates that certain minor legislative developments relating to termination of the employment relationship in the public service were made during the reporting period. The Government indicates that the termination of the employment relationship of workers in the public sector is now governed by sections 288–313 of the General Public Service Labour Act (Act No. 35/2014), which entered into force on 1 August 2014. However, the Government indicates that this legislative change did not give rise to any substantive reform. The Government emphasizes that section 11(1) of Act No. 35/2014, which determines the transitional regime, provides that the disciplinary provisions are immediately applicable to acts committed, proceedings initiated and penalties that are being served if, at the date of entry into force, that regime is more favourable to the worker and offers better guarantees to protect the worker’s rights to defence and a hearing. The Committee requests the Government to continue providing information to enable it to assess the impact of the legislative reforms in respect of the maintenance of employment.

Article 2(3) of the Convention. Adequate safeguards in the event of recourse to contracts of employment for a specified period. In its previous comments, the Committee requested the Government to provide information on the protection afforded to workers with contracts for a specified period, and to indicate the number of workers affected by these measures. In its report, the Government refers to the papers produced by the Strategy and Planning Office of the Ministry of Labour, Solidarity and Security. In this regard, the Committee notes that the document entitled “Green Paper 2017” contains statistics on contracts for a specified period, according to which it is estimated that in 2015 a total of 62.9 per cent of unemployment insurance benefits (111,682 workers) were provided as a result of the expiry of the contract period. The Committee also notes the information contained in that paper that the unemployment benefits provided to persons with contracts for a specified period are increasing, as in 2009 they accounted for 46.2 per cent of total unemployment benefits, compared with 62.9 per cent in 2015. The Committee once again requests the Government to provide information on the manner in which the protection afforded by the Convention is ensured to workers who have concluded an employment contract for a specified period, with a view to preventing abusive recourse to such contracts, including the relevant court rulings. It also requests the Government to continue providing information, including data on the total number of contracts for a specified period of time in comparison with contracts for an indefinite period.

Article 2(5). Micro-enterprises. The Committee notes that the Government’s report does not contain any information on this subject. The Committee once again requests the Government to provide information on the application of the Convention to micro-enterprises.

Article 4. Justification for termination. The Committee previously requested the Government to provide examples of the application of the legislative amendments of 2014 regarding the valid reason for termination of employment on the grounds of the reduction of jobs or dismissals for unsuitability. The CGTP–IN and the UGT reiterate that, by placing criteria of performance, qualifications and labour costs above the criteria of seniority and experience, Act No. 27/2014 does not ensure objectivity and allows an arbitrary choice of workers by the employer, as the choice may be made for the benefit of the enterprise. They add that these criteria do not safeguard employment security, the prohibition of dismissal except with a valid reason, the principle of equality and non-discrimination, as workers with greater seniority are affected by this provision. The Committee notes that, according to the statistics contained in the “Green Paper of 2017”, dismissal by a reason of the suppression of jobs and dismissal for unsuitability have decreased, as in 2015 they accounted for 8.7 and 0.3 per cent respectively of unemployment insurance benefits. The Committee also notes the court rulings provided by the Government relating to termination of employment on grounds of the suppression of the job. Nevertheless, it observes that these court decisions do not illustrate the legislative changes introduced by Act No. 27/2014. The Committee requests the Government to provide copies of court rulings with its next report which illustrate the application by the courts of the criteria set out in Act No. 27/2014.

Article 8. Right of appeal. The Committee notes that the Government has not provided information in its report on the legislative provisions governing claims for unjustified dismissal, or on the role of mediation and arbitration. The Committee notes that court decisions relating to dismissal and collective dismissal are regulated by sections 387 and 388 of the Labour Code. It also notes that the Labour Code envisages mediation and arbitration solely in collective labour disputes arising out of the conclusion of a collective agreement (section 526 et seq. of the Labour Code). The Committee further notes the statistics contained in the “Green Paper” on the cases of dismissal determined by courts of first instance. In this respect, it notes that in 2015 a total of 5,529 appeals against dismissal were resolved by courts of first instance, and that in 2013 the average period for their settlement through ordinary procedures was 16 months. The Committee requests the Government to provide information on the application of the legislative provisions respecting appeals against unjustified dismissal. It also requests the Government to indicate whether alternative means of dispute resolution are available for workers who have been dismissed.

Article 10. Adequate compensation for unjustified dismissal. The Committee notes that section 389(2) of the Labour Code provides that, when the court finds that dismissal is unjustified, but that the irregularity is strictly procedural, the worker shall receive half of the compensation envisaged by the law. The Committee requests the Government to provide court rulings which illustrate the application in practice of section 389(2) of the Labour Code.

Article 12. Severance allowance and other income protection measures. The CGTP–IN reiterates that compensation for the termination of the employment contract has been drastically reduced and that, in the current economic situation characterized by a high unemployment rate and the reduction in the amount and duration of unemployment benefit, this reduction is in violation of the right of workers to a decent life. In this regard, the Committee notes that section 366(1), as amended by Act No. 69/2013, which is applicable to almost all cases of termination of employment which give entitlement to compensation, sets the severance allowance at 12 days’ basic wages and benefits for each full year of seniority. The Committee also notes that, in the case of employment contracts for an indefinite period, workers are entitled to compensation during the first three years equivalent to 18 days of their basic wage and benefits for each full year of seniority, and 12 days of their basic wage and benefits for subsequent years. The Committee requests the Government to provide information on the implementation of this provision in practice, including on the impact of the change in severance payments for the workers concerned, and to provide statistical data, disaggregated by age and sex, concerning workers affected by this measure.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

Legislative developments. Application of the Convention in practice. In reply to previous comments regarding the evaluation of the impact of the reduction of termination benefits by the legislative reforms of 2011 in terms of maintaining and creating employment, the Government explains that the 2011 labour reform established a transitional regime; hence, the impact of the legislative amendments on reducing the amount of termination benefits is not immediate. The Government adds that, according to the data available, there seems to be a slight decrease in terminations of employment contracts since the beginning of 2012. Moreover, the most recent employment statistics show that the employment rate has increased over the past four quarters (2013–14), which indicates an upward trend in employment after four consecutive quarters of decline (2012–13). Furthermore, the Government enumerates in its report the most significant amendments to legal regimes regarding termination of employment contracts, resulting from an adjustment process initiated in 2011. In its observations, the CIP reiterates some of the points previously made concerning the fact that Portuguese legislation regulates certain aspects of employment contracts’ termination more strictly and in greater detail than the Convention. The IOE and the CIP referred to important legal reforms adopted following the Tripartite Agreement for Competitiveness and Employment of March 2011 and the Commitment to Growth, Competitiveness and Employment of January 2012. The CGTP–IN expresses its concern in view of the increased undermining of workers’ protection from dismissal and refers to some of the latest legislative developments which have resulted in a new reduction of the compensation for termination of the employment contract, namely Act No. 23/2012 of 25 June 2012 and Act No. 69/2013 of 30 August 2013. Both the CGTP–IN and the UGT criticize the amendments resulting in new dismissal criteria, particularly in the case of extinction of the work position. The Government refers to the judicial decision whereby a number of sections of the Labour Code were declared unconstitutional, by reason of infringing the prohibition to dismiss without fair cause established in article 53 of the Constitution. In its decision No. 62/2013, the Constitutional Court found that the modifications introduced into section 368(2) of the Labour Code by Act No. 23/2012 of 25 June 2012 failed to provide the necessary normative guidance as to the criteria that should govern the employer’s decision. That section allowed the employer the right to define the criterion to be applied for making a post redundant in a context when there were other posts with identical functional content – hence eliminating the application of the seniority criterion. As regards the modified version of section 375(1)(d) of the Labour Code which eliminated the obligation to transfer the employee to another suitable position in case of extinction of the work position and dismissal for unsuitability, the Constitutional Court found that dismissal on the grounds of a worker’s unsuitability could only occur if no alternative was available. The Committee requests the Government to continue to provide information evaluating the impact of legislative reforms, in terms of maintaining and creating employment.

Article 2(3) of the Convention. Adequate safeguards in case of recourse to contracts of employment for a specified period. The Government indicates that in order to ensure the exceptional nature of the fixed-term contract regime, the cases in which such contract should be considered as and converted into a permanent contract are determined by law, namely when concluded with the intent to evade the regulations which are applicable to permanent contracts or where the maximum duration of the contract or the maximum number of renewals has been exceeded (section 147 of the Labour Code). The Government also provided statistical information showing that the percentage of workers with fixed-term contracts in 2013 has suffered a slight increase in comparison with 2012 (0.9 percentage point). The Committee takes note of the judicial decisions transmitted by the Government in connection with the protection of workers who hold fixed-term employment contracts. The Committee requests the Government to continue to provide information on the manner in which the protection provided by the Convention is ensured to workers who have concluded an employment contract for a specified period of time and the number of workers affected by these measures.

Article 2(5). Micro-enterprises. The Government indicates that the procedure for dismissal in micro-enterprises is regulated by the same provisions applicable to other enterprises, except for the intervention of work councils in the procedure of dismissal; hence the amendments to section 366(1) of the Labour Code concerning the investigation to be conducted by the employer, in reply to a disciplinary notice for the purposes of evidence gathering, are now applicable to micro-enterprises. The Committee requests the Government to continue to provide information on the effective application of the Convention to micro-enterprises.

Article 4. Justification for termination. The CGTP–IN recalls that the legislative amendments resulting in the elimination of the obligation of the employer to follow a specific criterion (seniority based) to select employees to be retrenched and to transfer the employee to another suitable position, in case of a redundant position and dismissal for unsuitability, were declared unconstitutional by the Constitutional Court (Decision No. 602/2013). Following the decision, the original criterion was altered by Act No. 27/2014 of May 2014. Both the UGT and the CGTP–IN deplore the fact that the criterion established by Act No. 27/2014 placing performance, qualifications, and labour costs above the seniority criterion may be used at the employer’s discretion. The Committee requests the Government to provide examples of the application of the legislative amendments of 2014 regarding the valid reason for termination of employment, including copies of the leading judicial decisions in this regard.

Article 8. Right to appeal. Time limit for the appeal procedure. In reply to previous comments, the Committee notes the detailed statistical information appended to the Government’s report concerning the number, outcome and average length of proceedings for 2011 and 2012, both at first instance and on appeal. The Committee recalls the concerns of the CGTP–IN regarding the reduction of the time limit for bringing a judicial claim for unfair dismissal from one year to 60 days, as established by the revised Labour Code. The Committee again requests the Government to provide information on the practical application of the new legislative provisions regulating claims for unfair dismissal. It also requests the Government to provide information on the roles of mediation and arbitration in resolving issues related to the Convention.

Article 10. Compensation. In reply to the concern raised by the CGTP–IN with regard to the relaxed procedural requirements and the effects of unlawful dismissal introduced by the 2009 Labour Code, the Government refers to the modifications introduced by Act No. 23/2012 of June 2012 regarding the investigation to be conducted by the employer following a disciplinary notice, the effects of unlawful dismissal, and compensation in lieu of reinstatement. The Committee requests the Government to continue to provide information concerning Article 10 of the Convention, including examples of court rulings giving effect to this provision.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations made by the International Organisation of Employers (IOE), in communications received on 1 September 2013 and 31 August 2014, the Government’s reply thereto and the observations made by the Confederation of Portuguese Industry (CIP) in a communication received on 4 November 2014. The Committee also notes the information provided by the Government in its report, as well as the observations made by the General Confederation of Portuguese Workers – National Trade Unions (CGTP–IN), the General Workers’ Union (UGT) and CIP communicated therein.

Legislative developments. Application of the Convention in practice. In reply to previous comments regarding the evaluation of the impact of the reduction of termination benefits by the legislative reforms of 2011 in terms of maintaining and creating employment, the Government explains that the 2011 labour reform established a transitional regime; hence, the impact of the legislative amendments on reducing the amount of termination benefits is not immediate. The Government adds that, according to the data available, there seems to be a slight decrease in terminations of employment contracts since the beginning of 2012. Moreover, the most recent employment statistics show that the employment rate has increased over the past four quarters (2013–14), which indicates an upward trend in employment after four consecutive quarters of decline (2012–13). Furthermore, the Government enumerates in its report the most significant amendments to legal regimes regarding termination of employment contracts, resulting from an adjustment process initiated in 2011. In its observations, the CIP reiterates some of the points previously made concerning the fact that Portuguese legislation regulates certain aspects of employment contracts’ termination more strictly and in greater detail than the Convention. The IOE and the CIP referred to important legal reforms adopted following the Tripartite Agreement for Competitiveness and Employment of March 2011 and the Commitment to Growth, Competitiveness and Employment of January 2012. The CGTP–IN expresses its concern in view of the increased undermining of workers’ protection from dismissal and refers to some of the latest legislative developments which have resulted in a new reduction of the compensation for termination of the employment contract, namely Act No. 23/2012 of 25 June 2012 and Act No. 69/2013 of 30 August 2013. Both the CGTP–IN and the UGT criticize the amendments resulting in new dismissal criteria, particularly in the case of extinction of the work position. The Government refers to the judicial decision whereby a number of sections of the Labour Code were declared unconstitutional, by reason of infringing the prohibition to dismiss without fair cause established in article 53 of the Constitution. In its decision No. 62/2013, the Constitutional Court found that the modifications introduced into section 368(2) of the Labour Code by Act No. 23/2012 of 25 June 2012 failed to provide the necessary normative guidance as to the criteria that should govern the employer’s decision. That section allowed the employer the right to define the criterion to be applied for making a post redundant in a context when there were other posts with identical functional content – hence eliminating the application of the seniority criterion. As regards the modified version of section 375(1)(d) of the Labour Code which eliminated the obligation to transfer the employee to another suitable position in case of extinction of the work position and dismissal for unsuitability, the Constitutional Court found that dismissal on the grounds of a worker’s unsuitability could only occur if no alternative was available. The Committee requests the Government to continue to provide information evaluating the impact of legislative reforms, in terms of maintaining and creating employment.

Article 2(3) of the Convention. Adequate safeguards in case of recourse to contracts of employment for a specified period. The Government indicates that in order to ensure the exceptional nature of the fixed-term contract regime, the cases in which such contract should be considered as and converted into a permanent contract are determined by law, namely when concluded with the intent to evade the regulations which are applicable to permanent contracts or where the maximum duration of the contract or the maximum number of renewals has been exceeded (section 147 of the Labour Code). The Government also provided statistical information showing that the percentage of workers with fixed-term contracts in 2013 has suffered a slight increase in comparison with 2012 (0.9 percentage point). The Committee takes note of the judicial decisions transmitted by the Government in connection with the protection of workers who hold fixed-term employment contracts. The Committee requests the Government to continue to provide information on the manner in which the protection provided by the Convention is ensured to workers who have concluded an employment contract for a specified period of time and the number of workers affected by these measures.

Article 2(5). Micro-enterprises. The Government indicates that the procedure for dismissal in micro-enterprises is regulated by the same provisions applicable to other enterprises, except for the intervention of work councils in the procedure of dismissal; hence the amendments to section 366(1) of the Labour Code concerning the investigation to be conducted by the employer, in reply to a disciplinary notice for the purposes of evidence gathering, are now applicable to micro-enterprises. The Committee requests the Government to continue to provide information on the effective application of the Convention to micro-enterprises.

Article 4. Justification for termination. The CGTP–IN recalls that the legislative amendments resulting in the elimination of the obligation of the employer to follow a specific criterion (seniority based) to select employees to be retrenched and to transfer the employee to another suitable position, in case of a redundant position and dismissal for unsuitability, were declared unconstitutional by the Constitutional Court (Decision No. 602/2013). Following the decision, the original criterion was altered by Act No. 27/2014 of May 2014. Both the UGT and the CGTP–IN deplore the fact that the criterion established by Act No. 27/2014 placing performance, qualifications, and labour costs above the seniority criterion may be used at the employer’s discretion. The Committee requests the Government to provide examples of the application of the legislative amendments of 2014 regarding the valid reason for termination of employment, including copies of the leading judicial decisions in this regard.

Article 8. Right to appeal. Time limit for the appeal procedure. In reply to previous comments, the Committee notes the detailed statistical information appended to the Government’s report concerning the number, outcome and average length of proceedings for 2011 and 2012, both at first instance and on appeal. The Committee recalls the concerns of the CGTP–IN regarding the reduction of the time limit for bringing a judicial claim for unfair dismissal from one year to 60 days, as established by the revised Labour Code. The Committee again requests the Government to provide information on the practical application of the new legislative provisions regulating claims for unfair dismissal. It also requests the Government to provide information on the roles of mediation and arbitration in resolving issues related to the Convention.

Article 10. Compensation. In reply to the concern raised by the CGTP–IN with regard to the relaxed procedural requirements and the effects of unlawful dismissal introduced by the 2009 Labour Code, the Government refers to the modifications introduced by Act No. 23/2012 of June 2012 regarding the investigation to be conducted by the employer following a disciplinary notice, the effects of unlawful dismissal, and compensation in lieu of reinstatement. The Committee requests the Government to continue to provide information concerning Article 10 of the Convention, including examples of court rulings giving effect to this provision.

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

The Committee notes the Government’s report received in October 2011 for the period ending May 2011, including replies to its 2006 observation. The Committee also notes the observations received in October 2011 from the General Workers’ Union (UGT) and the General Confederation of Portuguese Workers – National Inter-Union (CGTP–IN). The Committee notes that new provisions regulating the termination of employment of public service employees were introduced in the framework of the 2008 legislative reform of the public sector with a view to align the civil service and private sector employment regimes. It also notes that a new Labour Code has been adopted by Act No. 7/2009 of 12 February 2009. Moreover, the 2009 amendments to the Code of Labour Procedure (Decree Law No. 480/99) introduced a new regulation of the judicial procedure applicable to claims for unfair dismissal. The Committee notes with interest that the provisions of the 2009 Labour Code have reinforced the grounds that constitute invalid reasons for termination. Section 381(d) of the Labour Code provides that the dismissal is invalid when the opinion of the Commission for Equality in Labour and Employment has not been sought before dismissing any pregnant worker, any worker who has recently given birth or who is breastfeeding, or any worker during initial parental leave (Article 5 of the Convention). The Committee observes the CGTP–IN’s indication that the Constitutional Court decision No. 338/2010 of September 2010 declared section 356(1) of the 2009 Labour Code (which provided that giving evidence during the procedure of dismissal was discretionary) as unconstitutional, on the grounds of violating the principles of the right to defence and protection of employment security enshrined in the National Constitution. The Committee notes that in the context of structural adjustment measures adopted since March 2011, the Government undertook reforms in the employment protection system, including amendments to the regulation of individual dismissals and the reduction of severance payments. The Committee invites the Government to include in its next report an evaluation of the impact of the reduction of termination benefits by the legislative reforms of 2011 in terms of maintaining and creating employment. In this respect, the Committee invites the Government to provide updated information on the intervention of the labour authorities in cases of collective dismissals (Part V of the report form). The Government indicates that following the monitoring activities of the Working Conditions Authority, 178 infringements of the requirements for collective dismissals were sanctioned in 2010, which involved 8,223 workers in 98 businesses. In the same year, 197 infringements regarding dismissal for the abolition of the job position were sanctioned, which involved 4,065 workers in 162 businesses. The Committee invites the Government to continue to provide information on the activities of the Working Conditions Authority and the labour inspectorate on the matters covered by the Convention.

Article 2(3) of the Convention. Adequate safeguards in case of recourse to contracts of employment for a specified period. In reply to previous comments, the Government supplied statistical information on the rate of fixed-term employment contracts concluded between 2006 and 2009 (around 29 per cent in 2009, approximately 830,000 contracts). The CGTP–IN indicates that the 2009 Labour Code has expanded the cases in which a fixed-term employment contract may be stipulated, such as through providing the possibility of very short-term contracts for seasonal agricultural activities and touristic events (section 142 of the 2009 Labour Code). The Government indicates that, according to the 2009 Labour Code, fixed-term employment contracts may be renewed up to three times and their total duration may not exceed three years (section 148 of the Labour Code). Section 393 of the 2009 Labour Code provides that where the dismissal of a worker employed under a fixed-term contract is declared invalid, the employer shall be condemned to reinstate the worker (if the contract expires after a definitive court decision) and compensate her/him for patrimonial and non-patrimonial damages. The Committee invites the Government to provide information on the manner in which the protection provided by the Convention is concretely ensured to workers who have concluded an employment contract for a specified period and the number of workers affected by these measures. Please provide copies of court decisions by which tribunals have dealt with this issue.

Article 2(5). Micro-enterprises. In reply to the Committee’s previous comments, the Government indicates that the procedure for dismissal in micro enterprises is regulated by the same provisions applicable to other enterprises except for the intervention of work councils in the procedure of dismissal (section 358 of the 2009 Labour Code). The Committee notes that as a general rule, the 2009 Labour Code provides that when termination is unjustified, the court shall automatically order the reinstatement of the worker. It is then up to the worker who may opt for compensation in lieu of reinstatement (sections 389(1) and 391 of the Labour Code). As an exception to this rule, where the dismissal concerns workers in micro-enterprises or workers holding managerial positions, the employer may request the court to exclude reinstatement of those workers based on circumstances, which would render the worker’s return seriously prejudicial and disruptive to the enterprise’s functioning. When reinstatement is excluded, the worker has the right to compensation (section 392 of the 2009 Labour Code). The Committee invites the Government to continue to provide information on the application of the Convention to micro-enterprises.

Article 8. Time limit for the appeal procedure. The CGTP–IN indicates that the time limit under the 2009 Labour Code for bringing a claim for unfair dismissal before the court, i.e. 60 days compared to one year before the 2009 reform, is too short as it does not allow workers to submit the dispute to labour mediation. The CGTP–IN also indicates that the amendments to the Code of Labour Procedure make dismissal less expensive because the State is responsible for paying interim wages whenever the legal procedure lasts for more than a year (section 98-N of the Code of Labour Procedure). In the CGTP–IN’s view, this measure is likely to promote dismissals, removing any reservation the employer might have against being involved in a lawsuit. The Committee requests the Government to provide information on the practical application of the provisions of the Code of Labour Procedure regulating claims for unfair dismissal. It also requests the Government to include updated information on the outcome of appeals against unjustified termination, the average time for an appeal to be decided and the roles of mediation and arbitration in resolving issues related to the Convention.

Burden of proof. The UGT indicates that under the 2009 Labour Code, the worker’s guarantees in the judicial procedure were strengthened to the extent that the worker may challenge dismissal through filing an application and submitting it to court. The employer has to prove that the termination was lawful (section 387(2) of the 2009 Labour Code and sections 98-C and 98-D of the Code of Labour Procedure). The Committee also notes that according to section 387(4) of the 2009 Labour Code, the court shall decide on the existence of valid reasons for dismissal alleged by the employer. The Committee requests the Government to provide information on the effect given to Article 8(3) of the Convention.

Article 10. Compensation. In the CGTP–IN’s view, the relaxed procedural requirements introduced by the 2009 Labour Code and the decrease in sanctions for these requirements, are likely to undermine the guarantee of employment security. The CGTP–IN further indicates that the 2009 Labour Code introduced changes regarding the effects of unlawful dismissal to the extent that dismissals are declared invalid only when the irregularities are not purely procedural. Accordingly, compensation for dismissed workers was reduced. Pursuant to section 389(2) of the 2009 Labour Code, when the court decides that there are valid reasons for dismissal but finds procedural irregularities, the dismissed worker shall only have the right to half the compensation in lieu of reinstatement she/he would have in the case of unjust dismissal. Taking into account the concerns raised by the CGTP–IN, the Committee invites the Government to continue to provide information on this issue.

[The Government is asked to reply in detail to the present comments in 2014.]

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

The Committee notes the Government’s detailed report for the period ending May 2006, and particularly the information on the laws and regulations adopted in August 2003 and July 2006 with a view to giving effect to the provisions of the Convention. The report also includes the comments of the General Union of Workers (UGT) and the Portuguese Confederation of Tourism (CTP). The UGT summarizes the national provisions establishing protection against termination of employment without a valid reason and expresses concern that the frequent use of fixed-term contracts is contributing to precarity among workers. The Portuguese Confederation of Tourism observes that, in its view, the national provisions appear to be in conformity with the principles of the Convention, although the provisions of the Labour Code appear to be outmoded in a globalized economy in view of their lack of flexibility, which does not encourage the economic development of enterprises. The Committee notes with interest that, in giving effect to the Convention, the new labour legislation has maintained a balance between flexibility and security for enterprises and workers. With reference to section 418 of the Labour Code respecting micro-enterprises, it requests the Government to indicate the manner in which compliance with the provisions of the Convention relating to the procedure for termination of employment is ensured in micro-enterprises. The Committee hopes that the Government’s next report will contain updated information on the application of the Convention in practice, and particularly on the prevalence of fixed-term contracts (sections 128 et seq. of the Labour Code), and further examples of court decisions relating to matters of principle concerning the application of the Convention (Parts IV and V of the report form).

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information contained in the Government’s report for the period 1 June 1997 to 30 June 1999. It notes in particular the information supplied in response to previous comments pertaining to Article 2, paragraphs 2(b), 4, 5 and 6, and Article 6, paragraph 2.

Article 2, paragraph 2, of the Convention.  In response to previous comments, the Government states that it has revised the penalties for abuse of fixed-term contracts intended to circumvent the legal protections pertaining to termination of employment and referred to various laws enacted for that purpose. The Government also states that monitoring of types of contracts has been set as a priority for the Inspectorate-General of Labour. A draft law was also introduced to combat fictitious self-employment, but was not approved. The Committee notes with interest these efforts to ensure that the Convention is applied in practice, and would appreciate receiving further information on their outcome.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

With reference to its observation, the Committee would be grateful if the Government would provide additional information in its next report on the following points.

Article 2, paragraph 2(b), of the Convention. The Committee notes the Government's statement in its report that no category of employed persons is excluded from the scope of the Convention. Nevertheless, it notes that under section 55 of Legislative Decree No. 64-A/89, workers serving a period of probation do not enjoy the protection provided for under the Convention, since termination of the employment contract by either party requires no justification during this period and gives no entitlement to compensation. Moreover, the Committee notes that the period of probation is 60 days for indefinite contracts, but collective agreements or individual labour contracts can envisage a period of probation exceeding 60 days and, in certain cases, a period of probation up to six months. The Committee recalls in this regard that, under the terms of this provision of the Convention, a Member may exclude from all or some of the provisions of this Convention workers serving a period of probation "determined in advance and of reasonable duration".

Article 2, paragraphs 4 and 6. The Committee requests the Government to describe the provisions which give effect to the Convention in the civil service or which guarantee its employees a protection at least equivalent to that afforded under the Convention.

Article 6, paragraph 2. The Committee notes that, under section 3(1) of Legislative Decree No. 398/83, the employment contract is suspended until the recovery of the worker in the event of a temporary absence from work because of illness or injury which exceeds one month. Please specify if any limitations are placed to the application of paragraph 1 when the absence of the worker for reasons of illness or injury exceeds a period of one month and the employment contract is suspended.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes with interest the Government's first report in respect of the application of the Convention, which contains detailed information and the comments made by the General Confederation of Portuguese Workers (CGTP). The CGTP considers that, whilst the legislation is, in general, in conformity with the provisions of the Convention, the supervision of its application in practice is inadequate. The CGTP, in particular, states that a large number of fixed-term contracts are being concluded for permanent positions, which is an infringement of the legislation, for the purpose of evading the regulations which are applicable to termination of contracts. The CGTP also expresses its concern that purported contracts for services are being concluded to conceal a salaried employment relationship as well as the existence of illegal or clandestine labour.

In its response, the Government states that it acknowledges the existence of numerous situations of illegal labour which must be eradicated. In this respect, the Government refers to the Agreement on Concerted Strategies concluded in December 1996 with the social partners (which the CGTP refused to sign) which includes a chapter on legislative measures including prevention and supervision to be adopted in order to eradicate different forms of illegal labour. The Government states that the legislative measures envisaged under this Agreement are in the drafting stage. The Committee would be grateful if the Government could communicate the texts of such legislative measures as soon as they are adopted.

The Committee would be grateful if the Government would provide detailed information in its next report in respect of any new measures which may have been adopted in order to ensure fuller conformity with the provisions of the Convention in practice, in particular to ensure the provision of adequate safeguards, under Article 2, paragraph 3, of the Convention, against recourse to contracts of employment for a specified period of time, the aim of which is to avoid the protection resulting from the Convention.

A request regarding certain points is being addressed directly to the Government.