Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Portugal (Ratification: 1964)

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

The Government has communicated the following information:

As stated in the report submitted in 1982 on the measures taken to apply this Convention, public enterprises-and only public enterprises-are required to have authorisation or official approval for their staff rules. "Thus during the adoption of collective agreements, public enterprise employers must have the authorisation of or must obtain the official approval of the authority legally responsible for their negotiated settlements, and it is for this reason that formal verification is a condition for the registration of collective agreements which have been adopted."

The refusal to register collective agreements, mentioned in section 24(3) of Legislative Decree No. 519-Cl/79, is based on considerations of form, and this is the only instance provided for by Portuguese law. This applies in general to all collective agreements in all economic sectors, except when "a document showing authorisation or official approval" is required, which applies only to public enterprises or state-financed enterprises.

Under Portuguese law, as provided in section 43 of Legislative Decree No 519-Cl/79, the analysis of the contents of collective agreements is up to the courts, and not the public administration. Moreover, such analysis by the courts can only be done after the publication of the collective agreements, as set forth in section 177 of the Code of Procedures governing labour matters.

Thus it may be concluded that in no case may the contents of a collective agreement be the reason for a refusal to register it, unless such refusal is justified because, after (formal) verification of this agreement, it is seen that an agreement involving public enterprises or state-financed enterprises is not accompanied by a "document showing authorisation or official approval".

Public enterprises in Portugal, because of national conditions, are subject to a special type of management which differs from the normal management of private enterprises. This type of management, defined in the Act on basic principles governing public enterprises (Legislative Decree No. 260/76 of 8 April 1976, amended by Legislative Decree No. 25/79 of 19 February 1979 and Legislative Decree No. 29/84 of 20 January 1984) involves conditions and limitations being placed upon the powers of the governing bodies (section 99) which, in areas where their powers are limited, must make up for this limitation by means of the Governing granting its official approval. The approval authority of the Government, set forth in section 13 of Legislative Decree No. 29/84, is economic and financial in nature and includes a number of means of action, some of which are expressed in its power to authorise or to approve a range of acts which include among them points dealing with the staff rules. However, it must be noted that the staff rules form only one subject in an overall field of ten different types of subject-matter.

Portuguese law prefers previous official authorisation to official approval given after the fact. In the case of collective bargaining, the governing body of a public enterprise must have prior official approval to negotiate, after which it is free to conduct the negotiations. If, in an exceptional case, the governing body has not obtained this prior authorisation, the Government will take action after the fact to grant its official approval. However, with regard to the registration deposit and publication of collective agreements, the competent services will only verify whether there is a document showing authorisation or official approval.

These limitations on the bargaining powers of governing bodies of public enterprises, just as for other powers, flow from constitutional provisions which confirm the imperative nature of the plan for the state public sector (article 92 of the Constitution) and which define the aims of that plan (article 91 of the Constitution). These result in turn from national conditions, under which: (a) it is up to the Government to approve prices or wage rates in the case of (public) enterprises which use public services or whose activities are in the nature of a monopoly (section 19(1) (c) of Legislative Decree No. 260/76, as amended); (b) the State can cover the deficits of public enterprises since one of the sources of its current income comes from the contributions, funds or subsidies of the State or other public bodies (section 18(c) of Legislative Decree No. 260/76); (c) the management principles for public enterprises form part of the aims of the plan mentioned in article 91(2) of the Constitution (section 21 et seq. of Legislative Decree No. 260/76).

It can therefore be concluded that the ability of governing bodies of public enterprises to engage in bargaining is subject to certain conditions, and that this limitation is remedied by the granting of official approval by the Government.

Once the Government has acted in this way, the capacity to engage in bargaining becomes total and the power to negotiate collective agreements does not differ from the capacity of private enterprises to engage in bargaining.

As already stated, Portuguese law prefers that approval be given first, so that the negotiators may freely conduct collective bargaining with assurance and confidence, subject at the outset to controls which are purely formal and non-substantive. In exceptional cases, because the negotiators on the employer's part have not remedied the limitation on their power to negotiate, and only in such cases, the Government may act by granting its official approval after the fact.

It must be noted that the case submitted to the Committee on Freedom of Association (Case No. 1370) was the only one in which, during the period in which Legislative Decree No. 260/76 of 8 April 1976 was in force, the Government was obliged to use its approval powers in regard to public sector enterprises so as to block the results of the collective bargaining process by not granting its a posteriori approval.

It should also be mentioned that, given the action in which the Government is obliged to engage in determining the source of revenues for public enterprises, and the possibility of the State to cover the deficits incurred by these enterprises, the collective bargaining in question involves some aspects in common with collective bargaining in the public service, which manifests certain special characteristics.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and of the General Workers’ Union (UGT), transmitted with the Government’s report and referring to matters under examination by the Committee.

The Committee further notes that in its observations on the application of Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the UGT alleges acts of anti-union discrimination, harassment and intimidation in the industry and service sectors. The Committee requests the Government to provide its comments thereon.

Article 4 of the Convention. Promotion of collective bargaining. Extension of collective agreements. In its previous comments, the Committee requested the Government to provide information on the application of the new regime for the extension of collective agreements, which was established under the Medium-Term Tripartite Agreement of 2017. The Committee notes that the Government reports that the number of extension ordinances issued significantly increased in the years following the publication of Decision No. 82/2017, decreased in 2020 due to the low number of collective agreements concluded in the context of the COVID-19 pandemic, and slightly increased again in 2021. It notes the Government’s indication that although Portugal’s trade union membership rate is about 16 per cent, the coverage rate of the collective agreements in force is close to 80 per cent as a result of the issuance of extension ordinances. In this regard, the Committee notes that the statistical data provided by the Government show a slight decrease in the coverage rate of collective agreements in recent years, as it went from 78.3 per cent in 2017 to 76.6 per cent in 2020. The Committee requests the Government to continue providing information on the application of the new extension regime, as well as updated statistical data on the overall coverage of collective agreements in the country.

Conditions for the expiry of collective agreements. The Committee had previously noted the observations of the General Confederation of Portuguese Workers – National Trade Unions (CGTP-IN) alleging that sections 501 and 502 of the Labour Code, which provide that clauses preventing the expiry of a collective agreement unless it is replaced shall lapse three years after the end of the agreement, contravene the principle of free and voluntary collective bargaining. It also noted the opposite view expressed by the CIP and encouraged the Government to continue promoting social dialogue to endeavour to come up with solutions accepted by the most representative social partners. The Committee notes the Government’s indication that the Agreement on Combating Job Insecurity, Reducing Labour Market Segmentation and Promoting More Active Collective Bargaining, which was signed at a meeting of the Standing Committee on Social Dialogue (CPCS) of the Economic and Social Council (CES) on 18 June 2018, included requirements aimed at preventing gaps arising from the expiry of collective agreements, and that sections 500 to 502 of the Labour Code were amended accordingly on 4 September 2019 (Act N0 93/2019). The Committee observes that although certain changes were made to sections 501 and 502, the provision that was denounced by the CGTP-IN and described above remains in force. The Committee also notes that the CIP, in its observations, alleges that Act No. 11/2021 of 9 March 2021 provides for the extension of the time periods for the after-effect of collective bargaining agreements for a period of 24 months (until 10 March 2023). The Committee notes that according to the CIP, the Act encourages inaction and stagnation, and constitutes a barrier to the adoption of new collective agreements. The Committee requests the Government to provide its comments in this regard.Encouraged by the fact that the issue of the after-effect of collective agreements has given rise to active tripartite dialogue leading to the adoption of Act No. 93/2019, the Committee requests the Government to continue this tripartite dialogue with regard to the matters raised by the CGTP-IN and the CIP within the framework of the CPCS.

Compulsory arbitration. In its previous comments, the Committee requested the Government to inform on any new cases involving the application sections 508(1)(c) and 509 of the Labour Code, which allow the Labour Minister to take a reasoned decision to have recourse to compulsory arbitration. It notes that the Government reports that no decision to have recourse to compulsory arbitral under section 508(1)(c) was made during the reporting period. The Committee requests the Government to continue to provide information on any new case involving the application of the above-mentioned provisions.

Representativeness of organizations. The Committee had previously requested the Government to determine and lay down objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations forming part of the CES and the CPCS, and to amend section 9 of Act No. 108/91, which designates by name the trade union organizations that are to form part of the CES. It had noted the Government’s indication that it would consult with the social partners on these matters with a view to identifying basic guidelines jointly for a tripartite agreement. The Committee notes with regret that the Government does not provide any new information in this regard. The Committee once again requests the Government to take the necessary measures, in consultation with the social partners, to establish objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations forming part of the CES and the CPCS, and to amend the legislation accordingly. The Committee requests the Government to provide information on any progress achieved in this regard.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and of the General Confederation of Portuguese Workers – National Trade Unions (CGTP–IN), received on 10 August 2018 and on 4 September 2018, respectively, referring to the issues examined by the Committee below.

Article 4 of the Convention. Promotion of collective bargaining. Extension of collective agreements. In its previous comment, the Committee had observed that the model for the extension of collective agreements resulting from the Council of Ministers Decision No. 90/2012 of 31 October 2012 was questioned by both workers’ and employer’s organizations. The Committee had therefore invited the Government to conduct a tripartite dialogue on the rules applicable to the extension of collective agreements with a view to finding shared solutions. The Committee notes with interest the Government’s indication that under the Medium-Term Tripartite Agreement, concluded on 17 January 2017, between the Government and most social partners sitting on the Standing Committee on Social Dialogue (CPCS) of the Economic and Social Council (CES), changes were made to the regime for issuance of extension ordinances, through Council of Ministers Decision No. 82/2017 of 9 June, revoking the earlier Council of Ministers Decision No. 90/2012 and introducing clear provisions on reasonable legal deadline for their publication. The Government states that now rather than imposing conditional criteria on issuance, the policy decision-maker must have access to data in order to weigh the social and economic circumstances that warrant such issuance, namely the economic and social identity and similarity of situations as to the scope of the extension and of the instruments in question, on which the decision must be based. The Committee notes the Government’s indication that in accordance with this amendment, issuance of extensions must be preceded by an analysis of the: (i) impact on the payroll of the workers covered and to be covered, with a view to assessing the likely economic impacts of the extension; (ii) pay rise of the workers to be covered; (iii) impact on the wage scale and the narrowing of inequalities within the scope of the collective regulation to be extended; (iv) percentage of workers to be covered (in total and by gender); and (v) proportion of women to be covered. The Committee takes due note of these elements and requests the Government to provide information on the application of the new extension regime, including on its impact on the overall coverage of collective agreements.

Conditions for the expiry of collective agreements. The Committee notes that the CGTP–IN reiterates in its observation that the legislation governing the conditions for expiry of collective agreements contravenes the principle of free and voluntary collective bargaining. The CGTP–IN affirms in particular that: (i) pursuant to sections 501 and 502 of the Labour Code, the clauses of collective agreements providing that the agreement shall not expire unless it is replaced by a new agreement will lapse three years after the end of the term of the agreement; and (ii) the application of these provisions has resulted in the expiry of more than 100 collective agreements over the past few years. The Committee notes that the CGTP–IN finally affirms that a governmental proposal which aims at overcoming certain difficulties caused by the 2012 reform of the collective bargaining system does not address the issue as it would maintain the regime of expiry of validity of collective agreements. In this respect, the Committee also notes the CIP’s statement that the expiry of validity of collective agreements does not violate Article 4 of the Convention as it aims, through an effective promotion of collective bargaining, to ensure that collective agreements are not frozen in time and that they can adapt themselves to the new socio–labour realities, the previous legal regime having on the contrary entailed total inertia and stagnation in this regard. The Committee takes note of the respective positions of the CGTP–IN and the CIP. Emphasizing that in the framework of the free and voluntary collective bargaining promoted by the Convention, the duration of the agreements, as well as the conditions for their expiry, are to be determined first and foremost by the parties concerned; and that, if the regulation of this matter is envisaged, it should, to the extent possible, reflect a tripartite agreement. The Committee encourages the Government to continue promoting social dialogue in relation to the issues outlined with a view to endeavour to come up with solutions accepted by the most representative employers’ and workers’ organizations. The Committee requests the Government to provide information on any development in this regard.

Compulsory arbitration. In its previous comment, the Committee had requested the Government to provide information on any new cases involving the application of sections 508(1)(c) and 509 of the Labour Code, which allow the Labour Minister to take a reasoned decision to have recourse to compulsory arbitration, in particular to indicate the awards of compulsory arbitration under section 508 (1)(c), and also to indicate whether a judicial appeal can be made against the decision of the Labour Minister. The Committee notes the Government’s indication that during the period under review (1 June 2015 to 31 May 2018) no compulsory arbitral award was made under section 508(1)(c) and that the mentioned decisions of the Labour Ministers are appealable, pursuant to article 268(4) of the Constitution of the Portuguese Republic. The Committee requests the Government to be kept informed on any new cases involving the application of the above-mentioned sections of the Labour Code.

Representativeness of organizations. For a number of years the Committee had noted that the legislation: (i) cites by name the trade union organizations that are to form part of the CES and the CPCS, which means that some organizations that deem themselves representative are left out; and (ii) does not lay down objective criteria for determining the representativeness of employers’ and workers’ organizations; the Committee had thus requested the Government to take the necessary steps to determine and lay down objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations forming part of the CES and CPCS, and to amend section 9 of Act No. 108/91 concerning the CES accordingly. While observing that the CIP considers the mentioned processes as appropriate, the Committee takes note of the Government’s indication that it will consult the social partners on the possibility of revisiting the “tripartite agreement for a new system of regulation of labour relations, employment policies and social protection”, signed on 25 June 2008, in order to ascertain their views on the likelihood of giving effect to the agreement reached at that time on the organizations’ representativeness, and that it is waiting for the trade union confederations and the employers’ confederations to identify basic guidelines jointly for a tripartite agreement, so that the Labour Code can be amended. The Committee hopes that the Government and the social partners will examine these matters in the near future and that the outcome of its discussions will lead to an agreement to amend the legislation along the lines that the Committee has been suggesting for years. The Committee requests the Government to provide information on any developments in this regard.

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 30 August 2013, and the Government’s comments thereon; the observations of the International Organisation of Employers (IOE), received on 1 September 2013, and the Government’s comments thereon; and the observations of the General Workers’ Union (UGT) and of the General Confederation of Portuguese Workers – National Trade Unions (CGTP–IN), appended to the Government’s report, which contains the Government’s reply.

Article 4 of the Convention. Promotion of collective bargaining. The Committee notes that both the IOE and the ITUC allege that Council of Ministers Decision No. 90/2012 of 31 October 2012, undermined the practice of the “erga omnes” extension of collective agreements, in establishing that they can only be extended if the signatory employers represent at least 50 per cent of the workers in the sector of activity, unless the signatory parties exclude micro-, small and medium-sized enterprises (the vast majority of Portuguese enterprises) from the extension request; this has a negative impact on the system of collective bargaining, with a drastic decrease in the number of collective agreements and workplaces covered by them. Moreover, the Committee notes the UGT’s request for the revocation of the established extension criteria, and its denunciation of the weakening of collective bargaining and the lack of promotion thereof by the Government. In addition, the Committee notes the Government’s replies, indicating that this measure introduced clear and objective criteria to be followed in weighing up the circumstances that might justify the extension of a collective agreement, taking account of representativeness and the impact of the extension on employment and the competitiveness of the economy. The Government states that the reduction in the number of collective agreements and their coverage was due at the time to the economic and financial situation and also to changes in the labour regulations. The Government indicates that collective bargaining is on the increase again and supplies statistical information on new collective agreements that have been published (93 in 2012, 97 in 2013, 161 in 2014, and 64 up to May 2015). Lastly, the Government emphasizes that, recognizing the importance of boosting collective bargaining, a new alternative criterion for the extension of agreements was redefined by Council of Ministers Decision No. 43/2014, taking account of the representativeness of micro-, small and medium-sized enterprises in various sectors of activity, which has contributed to the increase in the number of published extensions (13 in 2012, nine in 2013, 13 in 2014, and 23 up to August 2015). Observing that the current model for the extension of collective agreements is questioned by both workers’ and employers’ organizations, the Committee invites the Government to conduct a tripartite dialogue on the current regulations concerning the extension of collective agreements with a view to finding, as far as possible, shared solutions.

Alteration of collective agreements and regulations concerning their expiry. The Committee notes the observations of the CGTP–IN, criticizing various legislative provisions that suspend, reduce or cancel provisions in collective agreements, resulting in cuts in wages and other allowances and benefits. The CGTP–IN also alleges that the regulations concerning the expiry of validity (caducidade) of collective agreements introduced by section 501 of the Labour Code is contrary to the Convention. The Committee observes that these matters have already been examined by the Committee on Freedom of Association (Case No. 3072). The Committee observes that the Committee on Freedom of Association invited the Government, in the light of the principles of freedom of association and collective bargaining, together with the most representative employers’ and workers’ organizations, to evaluate the impact of the legislative provisions concerning wages and other allowances and benefits on the exercise of trade union rights, particularly the right to collective bargaining, with a view to ensuring that the exceptional measures adopted in connection with the crisis are not perpetuated. The Committee concurs with the recommendations of the Committee on Freedom of Association.

Compulsory arbitration. In its previous comments, the Committee referred to sections 508 and 509 of the Labour Code, which allow the Labour Minister to take a reasoned decision to have recourse to compulsory arbitration. The Committee notes the Government’s indication that, under section 508(1)(c) of the Labour Code, recourse to compulsory arbitration is only possible: (i) at the request of one of the parties, when a first collective agreement is concerned, “after protracted and fruitless negotiations and unsuccessful conciliation and mediation, and it has not been possible to refer the dispute to voluntary arbitration because of the other party’s lack of good faith in negotiations”; (ii) in the event of revision of a collective agreement at the recommendation of the Standing Committee on Social Dialogue (CPCS), a tripartite body in which the workers’ and employers’ organizations are represented); or (iii) on the initiative of the Labour Minister “when it is a question of essential services designed to protect the life, health and safety of persons”. In this last scenario, the Minister must first hear both parties and take into account: (i) the number of workers and employers affected; (ii) the social and economic effects of the dispute; and (iii) the position of the parties. Lastly, the Committee notes that the Government underlines the fact that compulsory arbitration is a measure of last resort, and that from 2006 to May 2015 only three awards resulting from compulsory arbitration were registered. The Committee requests the Government to provide information on any new cases involving the application of sections 508(1)(c) and 509 of the Labour Code, and also to indicate whether a judicial appeal can be made against the decision of the Labour Minister.

Representativeness of organizations. The Committee noted in its previous comments the conclusions of the Committee on Freedom of Association in Case No. 2334, which stated that the legislation: (i) cites by name the organizations that are to form part of the Economic and Social Council (CES) and the CPCS, which means that some organizations that deem themselves representative are left out; and (ii) does not lay down objective criteria for determining the representativeness of workers’ and employers’ organizations. The Committee requested the Government to take the necessary measures to determine and lay down objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations forming part of the CES and CPCS. The Committee notes that the Government repeats in its report the same information that was supplied previously, namely that the president of the CES took the initiative of launching a general discussion on the composition of the CES with the cooperation of its members. The Government adds that to date it has no knowledge of any progress made on this issue and that the composition of the CES is a matter of legal competence. The Committee firmly hopes that the necessary steps will be taken in the very near future to determine and lay down objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations forming part of the CES and CPCS, and to amend section 9 of Act No. 108/91 concerning the Economic and Social Council as indicated above.

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

The Committee notes the Government’s reply to the comments from: (1) the General Workers’ Union (UGT) and the General Confederation of Portuguese Workers (CGTP) – annexed to the Government’s report; (2) the International Trade Union Confederation (ITUC) of 24 August 2010 and 4 August 2011; and (3) the Confederation of Portuguese Tourism (CTP), received on 22 September 2010. The Committee also notes, in connection with various comments made by the ITUC on 31 July 2012, that the Government requested further clarification to be able to send relevant observations (the Office wrote to the Government in this respect).

Article 4 of the Convention. Legal matters pending. Compulsory arbitration. In its previous comment, the Committee noted that section 508(1)(b) of the Labour Code as revised, provides for compulsory arbitration after a majority vote by the representatives of the workers and employers on the Standing Committee for Social Partnership (CPCS). The Committee requested the Government to look into the possibility of amending the section in question so as to preclude the decision to impose compulsory arbitration from being taken by employers’ and workers’ organizations that are not parties to the dispute. In this respect, the Committee notes the Government’s statement that it is not the workers’ and employers’ associations that impose compulsory arbitration. The fact that arbitration is recommended by the majority of representatives of the workers and employers, provided for under the section in question, is not binding, given that the decision to resort to compulsory arbitration does not arise out of the recommendation. Under section 509(1) of the Labour Code, recourse to compulsory arbitration is determined by an informed decision of the minister responsible for labour matters, taking into account the number of employers and workers affected by the dispute, the social protection of the workers concerned, the social and economic repercussions of the dispute and the position of the parties with respect to arbitration. The Committee recalls that any provisions stipulating that the authority might resort to arbitration in the event of parties to collective bargaining failing to reach agreement are not usually in compliance with the principle of voluntary negotiation contained in Article 4 of the Convention and that compulsory arbitration is only acceptable in the case of acute national or local crisis. The Committee requests the Government to take the necessary measures to guarantee the respect of the abovementioned principle.

Representativeness of organizations. The Committee had noted the conclusions of the Committee on Freedom of Association in Case No. 2334 which mentioned that the legislation: (1) cites by name the trade union organizations that are to form part of the Economic and Social Council (CES) and the CPCS, which means that some organizations that deem themselves representative are left out; and (2) does not lay down objective criteria for determining the representativeness of employers’ and workers’ organizations. The Committee had requested the Government, in consultation with the most representative organizations of employers and workers, to work out and lay down objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations, and to amend section 9 of Act No. 108/91 of the CES by deleting the names of the workers’ organizations that are to be members of the CES and the CPCS, referring instead to the most representative organizations. The Committee had noted the information sent by the Government to the effect that: (1) the president of the CES had taken the initiative of launching a general discussion on the composition of the CES with the cooperation of members; and (2) it was impossible to forecast the outcome of these discussions or the proposals and recommendations the president might make. The Committee notes that, according to the Government, there has been no change in this area. The Committee requests the Government once again to take the necessary measures to work out and lay down objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations that are part of the CES and the CPCS, and to amend section 9 of Act No. 108/91 of the Economic and Social Council on the lines it has proposed.

Furthermore, the Committee notes the CGTP’s statement, in connection with the impact of the financial crisis on the trade unions, that Act No. 23/2012 of 25 June 2012 amends a number of sections of the Labour Code. It entered into effect on 1 August 2012 and cut pay and cash benefits in the state enterprises, even when these had been applied under collective agreement. The Government explained that the cut applied to salaries exceeding €1,500 and was an attempt to consolidate the state finances in the prevailing economic crisis; this salary reduction was declared constitutional by the Constitutional Court. The Committee would like to stress, in general, the importance it attaches to full compliance with collective agreements in force and, taking into account the Government’s statements concerning the economic crisis, would like to refer to the principles in its General Survey of this year on this matter. Finally, a number of trade union organizations complain about the reduction in the number of collective agreements. The Committee notes that the Government connects this fact with the economic crisis.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee takes note of the comments from the General Workers’ Union (UGT) which were attached to the Government’s report and which address compulsory arbitration and trade union representativeness. It also notes the comments of 24 August 2010 by the International Trade Union Confederation (ITUC) alleging anti-union practices and restrictions on bargaining rights in the public sector, and those of the Confederation of Portuguese Tourism (CTP) received on 22 September 2010. The Committee asks the Government to send its observations thereon.

Article 4 of the Convention. Compulsory arbitration. In its previous observations the Committee referred to the Labour Code, section 567, which provides that “in disputes arising from the conclusion or revision of a collective labour contract, recourse to arbitration may be compulsory where, after protracted and fruitless negotiations and unsuccessful conciliation and mediation, the parties fail to agree within two months of such procedures to refer the dispute to voluntary arbitration”. The Committee also noted that, according to the Government, section 1(b) of Amendment Act No. 9/2006 provides that compulsory arbitration shall be allowed “following a majority vote by the representatives of the workers and the employers in the Standing Committee for Social Partnership” (CPCS) (the Committee took the view that this paragraph should be deleted as in many cases it would allow the decision to impose compulsory arbitration in a dispute to be taken by workers’ and employers’ organizations that are not party to the dispute).

The Committee notes the adoption of Act No. 7/2009 of 12 February 2009 approving the revision of the Labour Code, and the adoption of Legislative Decree No. 259/2009 of 25 September 2009, which regulates the various instances of compulsory arbitration in a manner generally consistent with the principle of free and voluntary bargaining laid down in the Convention. The Committee notes with satisfaction that with this reform, where protracted and fruitless negotiations have ended in a stalemate deemed impossible to unblock, recourse to compulsory arbitration may be held only for the negotiation of a first collective agreement, in accordance with the principles of the Convention.

However, the Committee notes that section 508(1)(b) of the Labour Code as revised, provides for compulsory arbitration after a majority vote by the representatives of the workers and employers on the CPCS. Consequently, the Committee requests the Government to look into the possibility of amending section 508(1)(b) so as to preclude the decision to impose compulsory arbitration from being taken by workers’ and employers’ organizations that are not parties to the dispute.

Representativeness of organizations. The Committee noted in previous comments the conclusions of the Committee on Freedom of Association in Case No. 2334, which mentioned that the legislation: (1) cites by name the organizations that are to form part of the Economic and Social Council (CES) and the CPCS, which means that some organizations that deem themselves representative are left out; and (2) does not lay down objective criteria for determining the representativeness of workers’ and employers’ organizations. The Committee had requested the Government, in consultation with the most representative organizations of workers and employers, to work out and lay down objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations, and to amend the legislation (Act No. 108/91 of the CES, section 9, concerning the CPCS) by deleting the names of the workers’ organizations that are to be members of the CES and the CPCS, referring instead to the most representative organizations. The Committee notes the information sent by the Government to the effect that the President of the CES has taken the initiative of launching a general discussion on the composition of the CES with the cooperation of members. It also notes the Government’s statement that it is impossible to forecast the outcome of these discussions or the proposals and recommendations the President may make. The Committee hopes that the Standing Committee on Social Partnership will examine these matters in the near future and that the outcome of its discussions will lead to an agreement to amend the legislation along the lines the Committee has been suggesting for years. The Committee asks the Government to provide information on any developments in this regard.

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

The Committee notes the comments made by the Confederation of Portuguese Industry (CIP) on 17 July 2008, and by the General Union of Workers (UGT) on 11 August 2008, on the application of the Convention. The Committee also notes the comments made by the General Confederation of Portuguese Workers (CGTP) on matters which have already been dealt with.

Article 4 of the Convention. Compulsory arbitration. The Committee recalls that in its previous observation it referred to the new Labour Code which, in section 567, provides that, in disputes arising from the conclusion or revision of a collective agreement, recourse to arbitration may be compulsory where, after protracted and fruitless negotiations and after conciliation and mediation procedures have been exhausted, the parties do not agree, within two further months after such procedures, to refer the dispute to voluntary arbitration. The Committee notes that the CIP criticises this provision and considers it to be contrary to the principle of voluntary and free negotiation enshrined in the Convention. The Committee duly notes the Government’s indication that, since the introduction of compulsory arbitration in Portuguese legislation in 1992, there have been no cases of compulsory arbitration. The Committee recalls that compulsory arbitration is an acceptable means of ending a collective labour dispute when it is at the request of the two parties or when the dispute involves public servants exercising authority in the name of the State or employed in essential services in the strict sense of the term, namely services the interruption of which might endanger the life, health or safety of all or part of the population. The Committee therefore requests the Government to take the necessary measures to align the legislation and the existing practice in the country with the above principle.

Representativity of organizations. The Committee had asked the Government, in consultation with the most representative organizations of employers and workers, to determine and establish objective, precise and predetermined criteria to evaluate the representativity and independence of employers’ and workers’ organizations and to amend the legislation (Act No. 108/91 of the Economic and Social Council (CES), section 9, concerning the Permanent Commission for Social Partnership (CPCS)), so that it does not refer by name to the workers’ organizations which are to be members of the CES and the CPCS. The Committee notes the information from the Government that it suggested to the social partners within the CPCS to agree on permanent criteria for determining representativity, in April 2008, but, in the absence of any such agreement, they decided to postpone dealing with this matter. The Committee considers that the legislation should be amended so that it does not refer by name to the workers’ organizations which are to be members of the CES and the CPCS, in order to avoid the exclusion of certain representative organizations from these bodies in the future. Furthermore, the Committee considers that legislative measures should be taken to determine and establish objective, precise and predetermined criteria to evaluate the representativity and independence of employers’ and workers’ organizations.

The Committee hopes that the CPCS will examine these questions with a view to legislative reform and requests the Government to indicate any developments in this regard.

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

The Committee notes the Government’s report.

Validity of collective agreements once their time limit has expired. The Committee had taken note of the comments of the General Confederation of Portuguese Workers (CGTP) objecting to section 557 of the Labour Code with respect to the expiry of collective agreements. The CGTP objects that according to this section, once an agreement expires it is automatically renewed, if it has not been terminated, for a period of time equal to that initially stipulated or to that laid down by the Code, namely one year. At the expiry of that period, the agreement remains in force from the beginning of conciliation or mediation until the conclusion of the procedures in progress, up to a maximum of six months. If there has been recourse to arbitration during this six-month period, the agreement remains in force until the entry into force of the arbitration award. Once this date has been passed, the agreement is no longer valid. The CGTP claimed that this provision was contrary to the obligation of the State prescribed by the Convention to promote collective bargaining, since it necessarily causes collective agreements to expire without ensuring at the same time that new agreements enter into force. It claimed that, if an agreement expired, trade unions would be obliged to negotiate “from square one” which would favour the party who blocked the negotiation.

The Committee takes note of the information provided by the Government according to which section 557 has been amended by Act No. 9/2000 which provides that if the time period has been exhausted and no decision has been taken regarding the imposition of compulsory arbitration, the collective agreement expires and the effects defined by agreement of the parties, or, in the absence of such an agreement, the effects produced by the agreement itself with regard to individual labour contracts, remain in place until the entry into force of another collective labour agreement or arbitral ruling with regard to remuneration of workers; worker category and its respective definition; duration of the working time. According to this section, beyond the effects referred to in the previous paragraphs, the worker shall benefit from any rights and guarantees resulting from the application of the present Code. The Committee takes note of this information.

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

The Committee notes the Government’s report. The Committee also notes the comments made by the Confederation of Portuguese Industry on 31 May 2006 (with reference to Act No. 9 of 20 March 2006 limiting compulsory arbitration), the General Union of Workers (UGT) of 7 July 2006 and the Portuguese Confederation of Tourism of 7 July 2006 on the application of the Convention, and the Government’s reply to these comments.

1. Article 4 of the Convention. Compulsory arbitration. The Committee recalls that in its previous observation it referred to the new Labour Code which, in section 567, provides that “in disputes arising from the conclusion or revision of a collective labour agreement, recourse to arbitration may be compulsory where, after protracted and fruitless negotiations and the after the conciliation and mediation procedures have been exhausted, the parties do not agree, within two further months after such procedures, to refer the dispute to voluntary arbitration”. The Committee notes that, according to the Government, section 1 of Amendment Act No. 9/2006 provides that compulsory arbitration shall be admissible:

(a)   where one of the parties so requests; and, after hearing the Permanent Commission for Social Partnership, following lengthy and fruitless negotiations, after the breakdown of conciliation and mediation, where it has not been possible to resolve the dispute through voluntary arbitration, or due to the improper conduct of one of the parties;

(b)   following a majority vote by the representatives of the employers and the workers in the Permanent Commission for Social Partnership; or

(c)   at the initiative of the minister responsible for labour matters; after hearing the Permanent Commission for Social Partnership where essential services protecting the life, health and personal safety of the whole or part of the population are affected.

The Government adds that sections 429 and 430 of the Regulations of the Labour Code provide that the arbitration board shall gather together the parties before issuing an award with a view to endeavouring to help them reach an agreement and that up to now there have not been cases in which the parties have had recourse to compulsory arbitration.

In this respect, the Committee notes the statements made by the Government and observes that the Amendment Act constitutes progress towards greater conformity with the Convention. Nevertheless, the Committee considers that the hypothesis envisaged in subsection (b) of section 1 of the Amendment Act should be repealed, as in many cases it would mean that the decision to impose compulsory arbitration in a dispute would be taken by employers’ and workers’ organizations that are not parties to the dispute. The Committee requests the Government to provide in its next report any cases in which compulsory arbitration has been imposed by the authorities, with an indication of their circumstances.

The Committee welcomes the conclusion in January 2005 of an agreement by the social partners who are members of the Permanent Commission for Social Partnership to promote collective bargaining.

2. Representativity of organizations. The Committee notes the conclusions of the Committee on Freedom of Association in Case No. 2334 concerning the reference by name in the legislation to the trade union organizations members of the Economic and Social Council (CES) and the Permanent Commission for Social Partnership (CPCS), which implies that certain organizations that consider themselves to be representative are not included on these bodies, and the absence from the national legislation of objective criteria to determine the representativity of employers’ and workers’ organizations. In this respect, the Committee requests the Government, in consultation with the most representative organizations of employers and workers, to determine and establish objective, precise and predetermined criteria to evaluate the representativity and independence of employers’ and workers’ organizations and to amend the legislation so that it does not refer by name to the workers’ organizations which are to be members of the Economic and Social Council (CES) and the Permanent Commission for Social Partnership (CPCS). The Committee requests the Government to keep it informed of any legislative development in this respect.

The Committee is addressing a request directly to the Government on other matters.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report as well as the comments of the General Confederation of Portuguese Workers (CGTP) and of the Confederation of Portuguese Industry (CIP) on the application of the Convention. The CGTP expresses its disagreement on two provisions of the new Labour Code.

1. The CGTP refers to section 4(1) of the Code, which provides that the standards laid down by the Code may be overridden by the terms of a collective agreement, unless they concern mandatory standards or the administrative regulation of minimum conditions, irrespective of whether the provisions of the collective agreement are more or less favourable for the workers. The CGTP considers that under this procedure collective agreements may cease to be instruments of social progress and, this being the case, that this provision is contrary to Convention No. 98. The Government asserts that the new provision concerns the freedom of negotiation between the parties and that if, in one area, the parties agree on less favourable terms than those laid down by the Code, the agreement will probably include compensation in other matters covered. The Committee notes this information and observes that the provision in question preserves the application of mandatory standards and of the regulation of minimum conditions.

2. The CGTP also refers to section 577 of the new Code, which is concerned with the expiry of collective agreements and lays down that once an agreement expires it is automatically renewed, if it has not been terminated, for a period of time equal to that initially stipulated or to that laid down by the Code, namely one year. At the expiry of that period, the agreement remains in force from the beginning of conciliation or mediation until the conclusion of the procedures in progress, up to a maximum of six months. If there has been recourse to arbitration during this six-month period, the agreement remains in force until the entry into force of the arbitration award. Once this date has been passed, the agreement is no longer valid. The CGTP claims that this provision is contrary to the obligation of the State prescribed by the Convention to promote collective bargaining, since it necessarily causes collective agreements to expire without ensuring at the same time that new agreements enter into force. It claims that, if an agreement expired, trade unions would be obliged to negotiate "from square one" and that in fact the system would favour the party which blocked the negotiation. The CGTP also claims that this system turns into a sanction for the trade union side since the unions, in order to avoid remaining without a collective agreement, might be forced to accept unfavourable conditions. With regard to the expiry of agreements, the Government states that the previous system, which kept collective agreements in force for an indefinite period, had harmful consequences for collective bargaining. It states that the sum of the periods for which a collective agreement can be renewed in accordance with the new Labour Code guarantees that a sufficient period of time will elapse for parties to negotiate and conclude a revised agreement. It points out that the agreement will fall into disuse only in the rare hypothetical case that the deadlines have passed without the parties reaching an agreement. It states that the constitutionality of the new system has been examined by the constitutional court, which handed down a favourable verdict. The Committee notes this information and points out that both legislation under which collective agreements continue to remain valid beyond their expiry date and legislation which lays down a specific period of validity at the end of which it is necessary to renegotiate, are compatible with the Convention. The Committee requests the Government to keep it informed of the application in practice of the new provisions.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report and the comments of the General Confederation of Portuguese Workers (CGTP) and of the Confederation of Portuguese Industry (CIP) on the application of the Convention.

Article 4 of the Convention. The Committee has been referring for a number of years in its observations to section 35 of Decree No. 209/92, under which any of the parties to collective bargaining or the administrative authority or (in the case of public enterprises) the Economic and Social Council can submit disputes arising from the negotiation of a collective agreement to compulsory arbitration, particularly when no agreement is reached within two months. In this regard, the Committee observes that the Government reports the adoption of a new Labour Code, which amends the compulsory arbitration system. Currently section 567 of the new Code states that, in disputes arising from the conclusion or revision of a collective labour agreement, recourse to arbitration may be compulsory when, after protracted and fruitless negotiations and after conciliation and mediation procedures have been exhausted, the parties do not agree, within two further months after such procedures, to refer the dispute to voluntary arbitration. The Government emphasizes that the need for protracted and fruitless negotiations to have occurred is specifically covered in the abovementioned provision by three elements, namely, prior conciliation and mediation (which are free of charge for the parties); and the elapse of a period of two months after the end of mediation. The Government emphasizes that, as the Committee had requested, section 567 contains the possibility for negotiations to be resumed by stating that compulsory arbitration may be suspended, only once, at any time, subject to a joint request by the parties. The Government also indicates that the Labour Code regulations, which have been approved but have not yet been published, include a valuable element in favour of compulsory arbitration since the costs of voluntary arbitration are not covered by the State, while for compulsory arbitration 80 per cent of costs are borne by the State and only 20 per cent by the parties. Finally, the Government indicates that the abovementioned regulations provide for a final possibility of agreement before compulsory arbitration is initiated, since the first step which has to be taken by the arbitration board is to invite the parties to attempt to reach an agreement on the subject of the arbitration.

The CGTP maintains in its comments that the situation with respect to compulsory arbitration has not improved with the adoption of the new Code. On the contrary, it is of the opinion that the possibility of having recourse to compulsory arbitration is increasing given that section 570 provides for machinery for drawing up lists of arbitrators if these are not designated by the social partners, a situation which until now had prevented arbitration boards from being formed in practice. The CIP, for its part, agrees that the situation has not changed much with the new Code and emphasizes that the application of the provisions concerning compulsory arbitration should be restricted to exceptional situations in which the interests at stake and the social repercussions assume a high degree of importance.

The Committee notes the amendments to the Labour Code, which represent some improvement towards the full application of the Convention. Nevertheless, the Committee is bound to point out that under the Convention the promotion of collective bargaining must be given absolute priority and recourse to compulsory arbitration must be restricted to exceptional situations, particularly those involving essential services in the strict sense of the term (the interruption of which can endanger the life, health or safety of all or part of the population). The Committee requests the Government to provide information on the application of the new provisions in practice, indicating in particular in its next report the number of cases in which there has been recourse to compulsory arbitration, and to contemplate the adoption of measures needed to bring the legislation into full conformity with the Convention.

The Committee is addressing a direct request on certain other points to the Government.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report and the comments made by the General Confederation of Portuguese Workers (CGTP) and the Confederation of Portuguese Industry (CIP) on the application of the Convention.

1. Article 4 of the Convention. The Committee recalls that for a number of years it has been referring in its observations to section 35 of Decree No. 209/92 which envisages that any of the parties to collective bargaining or the administrative authority or (in the case of public enterprises) the Economic and Social Council may refer disputes arising from the negotiation of a collective agreement to compulsory arbitration, particularly where agreement is not reached within two months. The Committee notes that the CGTP and the CIP criticize the Decree in question and indicate that the imposition of compulsory arbitration is not suited to a process of free and voluntary bargaining. In this respect, the Committee notes that the Government: (1) refers to the reasons which gave rise to the legislation imposing compulsory arbitration (social agreements with certain trade union and employers’ federations, etc.) and points out that it has not yet been applied because the trade union and employers’ federations represented on the Economic and Social Council have not yet determined the list of persons who could act as arbitrators; (2) refers to paragraphs 257, 258 and 259 of the 1994 General Survey to justify the existence of compulsory arbitration; and (3) indicates that it notes the position of the Committee and is analysing the positions of the social partners concerning compulsory arbitration. The Committee recalls once again that legislation which allows one of the parties to a dispute to impose unilaterally the intervention of the administrative authority for the purpose of compulsory arbitration is inconsistent with the promotion of collective bargaining. In these circumstances, the Committee requests the Government, with a view to bringing its legislation into full conformity with the Convention, to take measures to amend the Decree in question so as to ensure that, except in the case of essential services, or for the conclusion of the first collective agreement or the emergence of a deadlock that cannot be overcome after protracted and fruitless negotiations, any recourse to compulsory arbitration is at the request of both parties only. The Committee requests the Government to provide information in its next report on any measure adopted in this respect.

2. The Committee notes that the CGTP refers in its observations to: the possibility of derogating from clauses in collective agreements under the terms of Act No. 21/96 of 23 July and Legislative Decree No. 64 A/89; the absence of labour regulations adopted by administrative authority in cases in which collective bargaining is not undertaken due to the absence of employers’ organizations; and the delay in the adoption of decisions to extend collective agreements.

With regard to the CGTP’s comments on the possibility of derogating from clauses of collective agreements that have been freely concluded under the terms of Act No. 21/96 of 23 July and Legislative Decree No. 64 A/89, the Committee recalls that in its observation in 1997 it had commented on Act No. 21/96, when it emphasized that a provision of a law establishing that normal working hours may not exceed 40 per week was not inconsistent with the Convention in so far as it implied an improvement in working conditions and did not prevent the parties from negotiating and establishing a shorter working day in collective agreements. With regard to Legislative Decree No. 64 A/89 respecting the legal situation concerning the termination of individual employment contracts, the Committee notes that, even though section 2 provides that, unless legal provisions establish the contrary, their legal status cannot be changed by clauses in collective labour agreements or individual contracts, section 59 provides that the values and criteria for the determination of benefits, the time limits for disciplinary proceedings, the trial period and the notice period, as well as the priority criteria for retention in employment in cases of collective dismissals, may be determined by means of collective regulations taking the form of an agreement. The Committee considers that the Legislative Decree in question does not violate Article 4 of the Convention since it permits the social partners to negotiate a broad range of aspects related to termination of employment.

With regard to the CGTP’s comments on the absence of labour regulations adopted by administrative authority in cases in which there is no collective bargaining as a result of the absence of employers’ organizations, the Committee notes the Government’s statement that the Convention does not place the authorities under the obligation to take any action in such cases and that there are six employers’ confederations covering all branches of economic activity which have the capability of concluding collective agreements.

Finally, with regard to the CGTP’s comments on the delay in adopting decisions to extend collective agreements, the Committee notes the Government’s indication that this matter is not covered by the Convention and that there could have only been a delay of one month in two cases.

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

The Committee notes the Government's report.

Article 4 of the Convention. The Committee recalls that in its previous observation it had referred to section 35 of Decree No. 209/92 which envisages that any of the parties to collective negotiations or the administrative authority or (in the case of public enterprises) the Economic and Social Council may refer disputes arising from the negotiation of a collective agreement to compulsory arbitration, particularly where agreement is not reached within two months.

In this respect, the Committee notes that the Government states that the above Decree envisages recourse to compulsory arbitration only when all other measures to resolve the conflict have been exhausted. Moreover, this Decree does not prevent arbitration from being interrupted at any moment to enable negotiations to resume. The Government refers to the principle established by the Committee of Experts in the 1994 General Survey on freedom of association and collective bargaining (paragraph 258). As regards arbitration imposed by the authorities at their own initiative, the Committee considers that there comes a time in bargaining where, after protracted and fruitless negotiations, the authorities might be justified to step in when it is obvious that the deadlock in bargaining will not be broken without some initiative on their part. The Government is of the opinion that negotiations can only be deemed to have broken down irretrievably when after two months of bargaining no agreement has been concluded. In this respect, the Committee reiterates that legislation which allows one of the parties to a dispute to impose unilaterally the intervention of the administrative authority for the purpose of compulsory arbitration is inconsistent with the promotion of collective bargaining. In these circumstances, the Committee requests the Government to bring its legislation into full conformity with the Convention by taking the necessary measures to amend the Decree in question so as to ensure that recourse to compulsory arbitration is at the request of both parties only.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's report and the comments of the General Confederation of Portuguese Workers (CGTP) on the application of the Convention.

1. The Committee notes the CGTP's statement without additional explanation that Act No. 21/96 which establishes a reduction of normal working periods of over 40 hours. The Committee notes the Government's response that in 1990 and 1996 agreements were concluded with the employers' confederations and one confederation of workers -- the CGTP declined to participate -- which recommended that collective agreements should gradually reduce working time to 40 hours a week, and that those agreements are binding under the Act. The Committee considers that a provision of a law, establishing that normal working hours may not exceed 40 a week is not inconsistent with the Convention, in that it implies an improvement in working conditions and does not prevent the parties from negotiating and establishing a shorter working day in collective agreements.

2. The CGTP also objects to compulsory arbitration being imposed by law. The Committee notes that under section 35 of Decree No. 209/92 any of the parties to collective negotiations or the administrative authority or (in the case of public enterprises) the Economic and Social Council may refer disputes arising from the negotiation of a collective agreement to compulsory arbitration, particularly where agreement is not reached within two months. In the Committee's view, legislation which allows one of the parties to a dispute, or the authorities, unilaterally to impose intervention by the administrative authority for the purpose of compulsory arbitration is inconsistent with the promotion of collective bargaining. In these circumstances, the Committee asks the Government to bring its legislation into full conformity with the Convention by taking steps to have the above Decree amended to establish that any compulsory arbitration must be at the joint request of the parties.

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

The Committee notes all the information contained in the Government's report.

Articles 4 and 6 of the Convention. With reference to its previous comments on the right of the Minister concerned to intervene in the collective bargaining process in public sector enterprises, the Committee notes with satisfaction that section 24 of Legislative Decree No. 519/C1/79, as amended by Legislative Decree No. 87/89 of 23 March 1989, has been repealed by Legislative Decree No. 209/92 of 2 October 1992, communicated by the Government, which makes no reference to prior authorization of the Minister concerned for the entry into force of a collective agreement concluded in a public enterprise.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Articles 4 and 6 of the Convention. For several years the Committee has been drawing the Government's attention to the need to amend the national legislation, which requires prior authorisation from the Minister concerned for the entry into force of a collective agreement concerning public enterprises (section 24(c) of Legislative Decree No. 519/CI/79), under the terms of its right to intervene which is set out, particularly in economic and financial matters, in Legislative Decree No. 260/76 of 8 April 1976, as amended by Legislative Decree No. 25/79 of 19 February 1979 and Legislative Decree No. 29/84 of 20 January 1984.

The Committee notes with interest that section 24(c) of Legislative Decree No. 519/CI/79 has been amended by Legislative Decree No. 87/89 of 23 March 1989, the text of which was transmitted by the Government; as amended, this section provides that in the absence of the authorisation of the Minister concerned, a collective agreement may be registered with a view to its coming into force, although the registration is not considered to be definitive until receipt of the documents containing the authorisation of the Minister concerned.

The Committee also notes, from the information supplied by the Government, that this procedure applies to a smaller number of public enterprises due to the privatisation of a number of these enterprises and to the fact that the measure only concerns public enterprises financed exclusively from public funds.

The Committee considers that the amendment introduced by Legislative Decree No. 87/89 is an improvement to the collective bargaining system in the public enterprises sector since, in particular, it avoids delays in the coming into force of collective agreements. However, it seems that the Minister concerned may still intervene in the collective bargaining process by virtue of Legislative Decree No. 260/76, as amended.

In these conditions, the Committee once again requests the Government to ensure that authorisation can only be refused for defects of form or because the provisions of the collective agreement do not conform to the minimum standards of the labour legislation, and to supply information on the cases in which the Minister concerned has refused his authorisation on the grounds of the contents of a collective agreement.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee takes note of the information supplied by the Government to the Conference Committee in 1987 and in its last report.

It also takes note of the comments made by the CGTP (General Confederation of Portuguese Workers) and of the Government's reply to them.

Articles 4 and 6 of the Convention. In its previous observation, the Committee, as did the Committee on Freedom of Association in Case No. 1370 (248th Report approved by the Governing Body at its 235th Session, March 1987), invited the Government to amend its legislation so as to ensure that the prior authorisation needed for the entry into force of a collective agreement concerning public enterprises (section 24(c) of Legislative Decree No. 519/CI/79) can only be refused on grounds of form or because the provisions of the collective agreement do not conform to the minimum social standards contained in the legislation.

In its communications, the Government reiterates its previous statements to the effect that public enterprises are subject to the authorisation or approval of the supervisory authorities, and recalls that the refusal to deposit agreements applying to public enterprises constitutes an act of a procedural nature in that the examination by the General Labour Directorate is confined to ascertaining the presence or absence of the document giving the permission or approval of the appropriate authorities.

The Committee again takes note of this statement, but points out that it has already observed that public enterprises are subject to government supervision in economic and financial matters, in accordance with Legislative Decree No. 260/76, as the CGTP confirms in its comments.

Although it is not for the Committee to pronounce on the causes of the measures a government takes for purposes of economic stabilisation, it none the less emphasises that when legislation has the effect of imposing such a policy on the social partners, the principle contained in Article 4 of the Convention is not respected.

The Committee joins the Committee on Freedom of Association in urging that, instead of making the validity of collective agreements subject to government approval, the Government might provide that every collective agreement filed with the appropriate authority should normally come into force a reasonable length of time after having been filed. If the public authority considered that the terms of the agreement were manifestly in conflict with the objects of the economic policy recognised as being desirable in the general interest, the case could be submitted for advice and recommendation to an appropriate consultative body, it being understood, however, that the final decision on the matter lay with the parties.

The Committee again requests the Government to state the measures taken to ensure that the Convention is applied in this respect.