Night Work of Young Persons (Industry) Convention, 1919 (No. 6) - Portugal (Ratification: 1932)

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

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

Article 2(2) of the Convention. Exceptions to the prohibition of night work by young persons. In its previous comments, the Committee noted that under section 76(2) of Legislative Decree No. 7/2009 (Labour Code of 2009), a young person of 16 years or more cannot work between 10 p.m. and 7 a.m. except in the conditions determined by section 76(3)(a). Noting that section 76(3)(a) of the Labour Code allows young persons of 16 years or more to perform night work in sectors of activity determined by a collective agreement, except during the period between midnight and 5 a.m., the Committee requested the Government to take the necessary measures to specify the activities in which night work may be authorized for children over 16 years of age.

The Committee once again notes the allegations made by the CGTP–IN reiterating its previous observations that the national legislation does not expressly state the sectors of activity in which night work is authorized for young persons over 16 years of age. The CGTP–IN further alleges that this task is left to collective bargaining, which could lead to a generalization or widespread habit in practice, which is not permitted by the Convention. The Committee also notes the UGT’s statement that child labour in Portugal, particularly night work, is a residual phenomenon.

In reply to those comments, the Government reiterates that the regulations governing the protection of minors performing hazardous work, as indicated in section 72(2) of the Labour Code, should be taken into account. According to the Government, national legislation enumerates the activities, processes and conditions of work which, by virtue of their hazardous nature, are forbidden or restricted to young people between 16 and 18 years. Such legislation applies both to work performed by day or at night, and in all sectors, including in undertakings in which only members of the same family are employed and in industrial undertakings on work which, by reason of the nature of the process, is required to be carried on continuously day and night in the industries specifically enumerated in the Convention. The Government further highlights that, in recent years, collective bargaining agreements have addressed the issue of night work by children and prohibited it. The Committee notes with interest the examples of collective agreements provided by the Government, which forbid night work by children over 16 years of age in certain sectors. Those collective agreements apply notably to the goldsmiths industry nationwide, to commerce and services at the district level, and in various occupations and activities in the agricultural, livestock and forestry sector at district and local levels. The Committee requests the Government to indicate whether there are any sectors where, in practice, collective agreements authorize children over 16 years of age to undertake night work, as per section 76(3)(a) of the Labour Code of 2009, and to specify the number of working children in such sectors, if any.

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

The Committee notes the observations of the General Workers’ Union (UGT), received on 28 August 2017, and of the General Confederation of Portuguese Workers (CGTP-IN), received on 1 September 2017.

Article 2(2) of the Convention. Exceptions to the prohibition of night work by young persons. In its previous comments, the Committee noted that the Labour Code of 2003 had been revised and the night work of young persons under 18 years of age is now covered by section 76 of the Legislative Decree No. 7/2009 (Labour Code of 2009). The Committee noted that under section 76(1) a young person of less than 16 years of age cannot work between 8 p.m. and 7 a.m., and under section 76(2) a young person of 16 years or more cannot work between 10 p.m. and 7 a.m. except in the conditions determined by the following paragraphs. The Committee therefore noted that section 76(3) of the Labour Code allows young persons of 16 years or more to perform night work: (i) in sectors of activity determined by a collective agreement, except during the period between midnight and 5 a.m; or (ii) in cultural, artistic, sporting or advertising activities, where there are objective grounds for doing so and on condition that he/she is granted a compensatory period of rest equal to the number of hours worked. The Committee therefore requested the Government to take the necessary measures to specify the activities in which night work may be authorized for children over 16 years of age.

The Committee takes notes of the observations of the CGTP-IN according to which the Government has not amended the legislation, as per the Committee’s request. The Committee once again notes the allegations made by the CGTP-IN reiterating its previous comments that the national legislation does not expressly state the sectors of activity in which night work is authorized for young persons over 16 years of age. The CGTP-IN further alleges that this task is left to collective bargaining which could lead to a generalization or widespread habit in practice, which is not permitted by the Convention. The Committee also notes the UGT’s statement that in the past years the participation of minors under 18 years of age in artistic activities has seen a growth in recent years and that it is important that such work is performed in a way that will not affect their physical and psychological development.

The Committee notes the Government’s indication in its report that the regulations governing the protection of minors performing hazardous work should be taken into account. With regard to the work of children in artistic performances, the Committee refers to the Minimum Age Convention, 1973 (No. 138), ratified by Portugal in 1998, Article 8 of which authorizes the undertaking of such performances under certain conditions. With regard to section 76(3) of the Labour Code which authorizes the night work of young persons between the ages of 16 and 18 years in sectors to be determined by collective agreement, the Committee recalls once again that according to Article 2(1) of the Convention, young persons under 18 years of age shall not be employed during the night in any industrial undertaking, other than an undertaking in which only members of the same family are employed, and in the cases listed in Article 2(2) of the Convention, that is, in work which, by reason of the nature of the process, is required to be carried on continuously day and night. The Committee therefore requests the Government to take the necessary measures to specify the activities in which night work may be authorized for children over 16 years of age as per section 76(3)(a) of the Labour Code of 2009, so as to be in conformity with Article 2(1) and (2) of the Convention.

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

The Committee notes the Government’s report. It also takes note of the observations sent by the General Workers’ Union (UGT) and the General Confederation of Portuguese Workers (CGTP).

Article 2(2) of the Convention. Exceptions to the prohibition of night work by young persons. In its previous comments, the Committee had noted section 65 of Act No. 99/2003 approving the Labour Code (Labour Code of 2003) which regulates the night work of young persons. It had noted that according to section 65(3) of the Labour Code of 2003, a collective agreement may provide that a young person aged 16 or over may work at night in specific sectors of activity, except during the period between midnight and 5 a.m. Moreover, it had noted section 65(4) of the Labour Code of 2003 which stated that a young person aged 16 or over may work at night, in cultural, artistic, sporting or advertising activities, where there are objective grounds for doing so and on condition that he/she is granted a compensatory period of rest equal to the number of hours worked.

The Committee had noted the observations made by the CGTP that the national legislation authorizes the night work of young persons aged 16 and over in particular sectors of activity without specifying the sectors themselves.

The Committee once again notes the allegations made by the CGTP reiterating its previous comments that the national legislation does not expressly state the sectors of activity in which night work is authorized for young persons over 16 years of age. The CGTP further alleges that this task is being left to collective bargaining which would lead to a generalization or widespread habit in practice not permitted by the Convention. The Committee also notes the UGT’s statement that since this Convention dates from 1919 and was ratified by Portugal in 1932, it is natural that some of its provisions may have become obsolete.

The Committee notes the Government’s indication that the Labour Code of 2003 has been revised and the night work of young persons under 18 years of age is now covered by section 76 of the Legislative Decree No. 7/2009 (Labour Code of 2009) which retains the provisions previously contained in section 65 of the Labour Code of 2003. In this regard, the Committee notes that the Government continues to consider that some provisions of the Convention which might have been justified at the time of its adoption in 1919, have lost any relevance with the passage of 93 years, and does not reflect the world of work today. The Government, once again recalling the decision taken by the Governing Body, considers that the Convention should be revised as soon as possible, and that it is looking forward for that.

The Committee reminds the Government that as long as the Convention has not been revised and has not been denounced by a ratifying country as per Article 13 of the Convention, it remains in force and is binding upon those countries that have ratified the Convention. Such a country is under an obligation to comply with the provisions of the Convention. The Committee once again recalls that according to Article 2(1) of the Convention, young persons under 18 years of age shall not be employed during the night in any industrial undertaking, other than an undertaking in which only members of the same family are employed and in the cases listed in Article 2(2) of the Convention. The Committee therefore requests the Government to take the necessary measures to specify the activities in which night work may be authorized for children over 16 years of age as per section 76(3)(a) of the Labour Code of 2009, so as to be in conformity with Article 2(1) and (2) of the Convention.

Article 3(1). Employment of children in industrial undertakings. Noting that the provisions laid down under section 65 of the Labour Code of 2003 did not completely comply with the provisions of the Convention, the Committee had reminded the Government that according to Article 3(1) of the Convention, the term “night” signifies a period of at least 11 consecutive hours, including the interval between 10 p.m. and 5 a.m. It had therefore requested the Government to take the necessary measures to bring the national legislation into conformity with the Convention on this point.

The Committee notes the allegations made by the CGTP that national legislation fails to conform to Article 3(1) of the Convention in terms of the definition of “night work”.

The Committee notes that according to section 76(1) of the Labour Code of 2009, it is prohibited to employ a young person under 16 years of age between 8 p.m. and 7 a.m. It also notes section 76(2) of the Labour Code of 2009 which states that a young person aged 16 and over cannot work between 10 p.m. and 7 a.m. In this regard, the Committee notes that according to section 73(1) of the Labour Code of 2009, the working hours of a young person (between the ages of 16 and of 18 years) shall not exceed eight hours a day or 40 hours per week. The Committee, therefore, observes with satisfaction that sections 73(1) and 76(2) of the Labour Code of 2009, when read together, lead to a prohibition to work during the night as required by Article 3(1) of the Convention. The Committee further notes that by virtue of section 73(2) of the Labour Code of 2009 a collective agreement on employment may further reduce or limit the maximum working hours of young persons.

Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s information that in the course of the inspections carried out by the Working Conditions Authority during the period from June 2008 to May 2012, four infringements of the provisions governing the prohibition of night work by minors were detected and were the subject of prosecutions.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the information supplied by the Government in its report. It also notes the observations made by the General Confederation of Portuguese Workers (CGTP), the General Union of Workers (UGT) and the Confederation of Trade and Services of Portugal (CCSP).

Articles 2 and 3 of the Convention. Employment of children in industrial undertakings. With reference to its previous comments, in which it pointed out that certain provisions concerning the night work of young persons contained in Legislative Decree No. 409 of 1971 were not in conformity with the Convention, the Committee notes that this Legislative Decree has been repealed by Act No. 99/2003 approving the Labour Code [hereinafter Labour Code], which now regulates the night work of young persons.

The Committee notes that section 65(1) of the Labour Code states that it is prohibited to employ a young person under 16 years of age between 8 p.m. and 7 a.m. It also notes that section 65(2) of the Code states that a young person aged 16 and over cannot work between 10 p.m. and 7 a.m. Moreover, under section 65(3) of the Code, a collective agreement may provide that a young person aged 16 or over may work at night in specific sectors of activity, except during the period between midnight and 5 a.m. Finally, section 65(4) of the Labour Code states that a young person aged 16 or over may work at night, including during the period between midnight and 5 a.m., in cultural, artistic, sporting or advertising activities, where there are objective grounds for doing so and on condition that he/she is granted a compensatory period of rest equal to the number of hours worked.

In its comments, the CGTP states that the national legislation is still not in conformity with the Convention. It authorizes the night work of young persons aged 16 and over in particular sectors of activity without specifying the sectors themselves. The use of this possibility might become a widespread habit in practice. The UGT, for its part, indicates in its comments that it is essential not to obscure the fact that very often the conditions in which night work is undertaken may jeopardize the physical and psychological development of young persons or their school attendance. Hence, night work must be strictly controlled in order to put children’s interests before economic interests. In addition, the UGT indicates that, in view of the fact that the Convention was adopted in 1919 and ratified by the Government in 1932, some of its provisions are somewhat obsolete. In addition, the CCSP thinks that the provisions of the Labour Code are in conformity with the Convention.

The Government acknowledges in its report that section 65(2) and (3) of the Labour Code of 2003 are not in conformity with the Convention. However, it indicates again that, although some provisions of the Convention were justified at the time it was adopted, they no longer reflect the current reality of the world of work. Changes in the organization of work now afford greater protection of safety and health, in particular for young workers. The Government also states that the provisions of the Labour Code on the night work of young persons comply with Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work. In addition, the Government recalls the decision taken by the Governing Body to revise Conventions Nos 6, 79 and 90 and hopes that this revision will take place.

While noting the information supplied by the Government, the Committee observes that the requirements of Directive 94/33/EC cannot release the State from its obligations under the Convention since the latter has not yet been revised. The Committee reminds the Government that, under Article 2, paragraph 1, of the Convention, young persons under 18 years of age shall not be employed during the night in any industrial undertaking, other than an undertaking in which only members of the same family are employed and in the cases listed in Article 2, paragraph 2. It also reminds the Government that Article 3, paragraph 1 states that the term “night” signifies a period of at least 11 consecutive hours, including the interval between 10 p.m. and 5 a.m. The Committee reminds the Government that it should take the necessary measures to bring the national legislation into conformity with the Convention on this point.

Part V of the report form. Application of the Convention in practice. The Committee notes the information supplied by the Government to the effect that, between June 2000 and May 2007, 20 serious contraventions of the legislation on the night work of young persons were reported and proceedings have been initiated. The Committee requests the Government to continue to supply information on the application of the Convention in practice, particularly by supplying statistics on the number and nature of contraventions reported, investigations, prosecutions, convictions and penalties imposed.

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

The Committee notes the information provided by the Government in its report and the adoption of many decrees and laws. It also notes the observations made by the General Confederation of Portuguese Workers (CGTP-IN) concerning the non-conformity of national legislation with the provisions of the Convention.

Article 2, paragraphs 1 and 2, of the Convention.  The Committee notes that section 33 of Legislative Decree No. 409 of 1971, on which it has been commenting for many years, was amended by Act No. 58 of 30 June 1999. Under the terms of the new section 33(1), night work by persons under 16 years of age is prohibited and collective agreements may not reduce the period of night work specified by the law. The Committee notes the information provided by the Government to the effect that the new section 33 no longer allows young persons of 16 or 17 years of age to work at night in industrial enterprises for their vocational training, which was permitted under the former section 33(1) of Legislative Decree No. 409 of 1971.

However, the Committee recalls that, under the terms of Article 2, paragraph 1, of the Convention, it is prohibited to employ young persons under 18 years of age during the night in industrial undertakings, other than those in which only members of the same family are employed and in the cases enumerated in Article 2, paragraph 2. The Committee requests the Government to indicate the measures which have been taken or are envisaged to bring the legislation into conformity with the Convention on this point.

Section 33(3) of Act No. 58 of 30 June 1999 provides that young persons of 16 years of age and over may be authorized to work at night in specific sectors by collective agreement, except between midnight and 5 o’clock in the morning. The Committee recalls that Article 2, paragraph 2, of the Convention allows the employment of young persons over 16 years of age on work which, by reason of the nature of the processes, is required to be carried on continuously day and night in the industries referred to in the Article. While noting the information provided by the Government to the effect that, in general, collective agreements do not make use of this exception, the Committee requests the Government to indicate the sectors in which collective agreements may allow the night work of young persons of 16 years of age and over. It also requests the Government to provide copies of the above collective agreements.

Article 3, paragraph 1.  The Committee notes that section 29 of Legislative Decree No. 409 of 1971, on which it has been commenting for many years, was amended by Legislative Decree No. 96/99 of 23 March 1999. Under the terms of the new section 29, night work signifies work performed for a period of at least seven hours and a maximum of 11 hours, including the interval between midnight and 5 o’clock in the morning. Collective agreements establish the duration of night work, in accordance with this provision and, irrespective of whatever may be set out in collective agreements, night work is the period between 8 o’clock in the evening and 7 o’clock in the morning. The Committee notes the information provided by the Government, according to which the amendments to sections 29 and 33 of Legislative Decree No. 409 of 1971 do not modify the points raised by the Committee.

The Committee also notes that, by virtue of section 33(2) of Act No. 58 of 30 June 1999, young persons of 16 years of age may not work at night between 10 o’clock in the evening and 6 o’clock in the morning, or between 11 o’clock in the evening and 7 o’clock in the morning, without prejudice to the provisions of subsections (3) and (4). In this respect, section 33(3) provides that collective agreements may authorize young persons of 16 years of age and above to work at night in specific sectors, except between midnight and 5 o’clock in the morning.

In its comments, the CGTP-IN considers that section 33(2) of Legislative Decree No. 409/71 of 27 September 1971, as amended by Act No. 58 of 30 June 1999, is not in conformity with the definition of night work set out in Convention No. 6. In this respect, the Committee notes the Government’s reply to the effect that the national legislation is indeed not in conformity with the Convention. However, the Government indicates that, while admitting that the provisions of the Convention may have been justified at the time of its adoption, they no longer reflect the real situation in the world of work. According to the Government, developments in the organization of work have resulted in greater protection for health and safety, particularly for young workers. The Committee also notes the Government’s comments concerning the decision taken by the Governing Body to revise Conventions Nos. 6, 79 and 90.

However, the Committee recalls that, by virtue of Article 3, paragraph 1, the term "night" signifies a period of at least 11 consecutive hours, including the interval between 10 o’clock in the evening and 5 o’clock in the morning. The Committee also notes that the amendments made by Act No. 98/99 to Legislative Decree No. 409/71 do not bring the national legislation into conformity with the Convention. The Committee therefore once again requests the Government to take the necessary measures to bring its legislation into conformity with the Convention on this point.

In its previous comments, the Committee had noted that Legislative Decree No. 396/91 of 16 October 1991, respecting work by young persons, and Ministerial Orders Nos. 714/93 and 715/93 of 3 August 1993, relating respectively to the definition of light work and activities which are prohibited for young persons, do not bring the legislation into conformity with the Convention on the two points raised previously. It once again requests the Government to take the necessary measures to bring the legislation into conformity with the Convention.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

In its previous comments, the Committee pointed out that section 33 of Legislative Decree No. 409 of 1971, which authorizes exceptions from the prohibition of night work in industry for persons aged between 16 and 18 years for the purposes of vocational training, is not in conformity with Article 2 of the Convention. It also pointed out that section 29 of the same Legislative Decree, under which collective agreements may fix the beginning of the night period later than 10 p.m., conflicts with Article 3 of the Convention. It noted the assurances given by the Government that collective agreements could not make use of this possibility.

The Committee notes Legislative Decree No. 396/91, of 16 October 1991, respecting work by young persons, and Ministerial Orders Nos. 714/93 and 715/93, of 3 August 1993, relating respectively to the definition of light work and activities which are prohibited for young persons. It observes that these texts do not bring the legislation into conformity with the Convention on the two points referred to above.

The Committee requests the Government to report the measures which have been taken or are envisaged to bring the legislation into conformity with the Convention on these points.