Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Portugal (Ratification: 1977)

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

The Committee notes the observations of the General Workers’ Union (UGT), transmitted with the Government’s report, on the application of the Convention in practice. The Committee further notes that in its observations on the application of the Right of Association (Agriculture) Convention, 1921 (No. 11), the UGT alleges difficulties with the exercise of trade union rights in the informal sector of economy. The Committee requests the Government to provide its comments thereon.

In its previous comments, the Committee had requested the Government to provide information on the outcome of the case concerning a trade union leader arrested at the end of a nationwide rally. The Committee takes due note of the Government’s indication that the charges against that trade union leader were dropped pursuant to an order dated 8 February 2011, as he was not found to have committed any criminal act.

Article 3 of the Convention. Right of organizations to draw up their constitutions and rules. The Committee recalls that for several years it has been requesting the Government to initiate discussions with the representative workers’ and employers’ organizations to examine article 55(2)(e) of the Constitution and section 450(2) of the Labour Code, which require trade unions to regulate in their constitutions the direito de tendência (the right of trade union members to form channels of opinion through which they may participate in the functioning of the organization) and mandate the labour administration to assess union by-laws compliance therewith, as well as the application in practice of these provisions. The Committee notes the Government’s indication that the labour administration does not interfere with the regulation of the direito de tendência, which is carried out internally by each trade union. The Government states that the labour administration conducts its assessments with due regard for the principles of independence and self-regulation of these organizations, and reiterates that, according to a judgment 4 May 2011 of the Tribunal da Relação in Lisbon, trade union constitutions are free to determine the manner in which the direito de tendência is exercised in practice. The Committee requests the Government to indicate whether there have been any administrative or judicial decisions, or other developments regarding the application of the May 2011 decision.

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

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

The Committee had previously requested the Government to provide information on the outcome of judicial proceedings concerning the arrest of two trade union leaders by the police at the end of a nationwide rally. The Committee takes due note of the Government’s indication that the court has acquitted one of the defendants who had been charged with the offence of disobeying a public meeting dispersion order, and that a case involving the second is still pending before the court. The Committee requests the Government to provide information on the outcome of that case.

The Committee further notes that, in its observations, the CGTP–IN indicates that section 497 of the Labour Code continues to allow workers who are not union members to choose applicable collective agreements. The Committee recalls that the CGTP–IN had previously alleged that section 497 constitutes an anti-union provision which dissuades people from becoming union members, encourages them to leave trade unions, introduces discrimination between workers and allows employers to influence the worker’s choice of the applicable collective agreement. The Committee notes the CGTP–IN’s indication that although the Government has prepared an amendment to limit the application of this provision, the proposal as currently drafted is not far-reaching enough to solve the issue. The Committee recalls that this matter has been examined by the Committee on Freedom of Association (CFA) (Case No. 3072, 376th Report, paragraphs 914–927) and refers to its outstanding recommendations in this regard.

Article 3 of the Convention. Right of organizations to draw up their constitutions and rules. The Committee recalls that for a number of years it has been commenting on the obligation imposed on trade unions to regulate in their constitutions the direito de tendência, namely the right of trade union members to form channels of opinion through which they may participate in the functioning of the organization, and on the obligation imposed on the labour administration to assess union by-laws compliance therewith. In this respect, the Government indicates, as it had previously pointed out, that it must follow the jurisprudence of the Tribunal da Relação in Lisbon which considered that this right must not only be recognized and regulated by trade union constitutions but that the latter must also specify “in what way it can or must be exercised”. The Committee recalls that it had previously noted that there is a decision of 4 May 2011 of the same tribunal indicating that trade union constitutions are free to define the forms in which this right is implemented in practice. The Committee recalls that it had requested the Government to initiate discussions with the representative workers’ and employers’ organizations to examine the legislation in question and its application. The Committee notes the Government’s indication that the obligation requiring trade union associations to regulate the exercise of the right to political views (section 450(2) of the Labour Code) was sought to give effect to the provision of article 55(2)(e) of the Constitution, which guarantees the exercise of the direito de tendência. The Government explains that section 450 guarantees that a balance is struck between the principle of trade union independence and the principle of trade union democracy. The Committee understands that the Government did not engage with the social partners on the subject and therefore once again requests the Government to initiate discussions with the representative workers’ and employers’ organizations in order to examine the legislative provisions in question and their application in practice. The Committee requests the Government to provide information in this regard.

Requisition of striking workers. The Committee had previously noted that in grave situations, when minimum services indispensable for the satisfaction of vital social needs are not complied with, the Government may issue a ministerial order to requisition striking workers. The Committee had requested the Government to provide information on the application in practice of this possibility. The Committee takes note of the Government’s indication that this possibility was used in respect of a strike in 2014 in the aviation sector. Furthermore, the Committee notes the observation of the CIP that civil requisition, under article 1 of Decree-Law No. 637/74, has an exceptional character and is an instrument of last resort and that, since 1970, it has only been enacted three times, in 1977, 1997 and 2014.

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

The Committee notes the observations from the International Trade Union Confederation (ITUC) received on 30 August 2013, as well as the response from the Government thereon. The Committee also notes the observations from the General Union of Workers (UGT) and from the General Confederation of Portuguese Workers – National Trade Unions (CGTP IN), included in the Government’s report. The Committee further notes the observations of the International Organization of Employers (IOE) received on 1 September 2015, which are of a general nature.

The Committee takes note of the information provided by the Government in reply to the ITUC’s observations of 2012 concerning the arrest of two trade union leaders by the police at the end of a nationwide rally, indicating that they were arrested without use of violence for the commission of a crime of qualified disobedience on the grounds of having caused the breakdown of the legally required protection perimeter of the residence of the Prime Minister, after having been warned by the police that such breach would lead to their arrest. The Committee requests the Government to provide information on the outcome of the judicial proceedings.

Finally, the Committee notes that, in its observations, the CGTP–IN alleges that section 497 of the Labour Code, in allowing workers who are not union members to choose applicable collective agreements, constitutes an anti-union provision which dissuades people from becoming union members, encourages them to leave trade unions, introduces discrimination between workers and allows employers to influence the workers’ choice of applicable collective agreement. The Committee observes that these matters have been examined by the Committee on Freedom of Association (CFA) (Case No. 3072, 376th Report, paras 914–927) and refers to the conclusions of the CFA.

Article 3 of the Convention. Right of organizations to draw up their constitutions and rules. In its previous comments, the Committee had addressed observations from the CGTP IN challenging interference from the labour administration in the internal organization of trade unions through controls made on the regulation by trade union constitutions of the direito de tendência, namely the right of trade union members to form channels of opinion through which they may participate in the functioning of the organization. Having duly noted the comments of the Government on this regard, as well as a decision of 4 May 2011 of the Tribunal da Relação in Lisbon indicating that trade union constitutions are free to define the manner in which the direito de tendência is implemented in practice, the Committee had recalled that, under Article 3 of the Convention, national legislation should only lay down formal requirements respecting trade union constitutions, except with regard to the need to follow a democratic process and to ensure a right of appeal for the members. The Committee had requested the Government to initiate discussions with the representative workers’ and employers’ organizations in order to examine the legislative provisions in question and their application in the light of the abovementioned principle. The Committee notes that the Government in its report indicates that, given the national elections, the necessary steps will be undertaken after the formation of the next Government. Firmly hoping that it will be able to note progress in the near future, the Committee reiterates its prior request to the Government and requests it to provide information in this respect.

Requisition of striking workers. The Committee takes note that, in response to the allegations by the ITUC that the Government may in grave situations issue a ministerial order on a wide range of sectors to requisition striking workers, the Government states that requisition is only possible if minimum services indispensable for the satisfaction of vital social needs are not complied with during a strike, an exceptional measure that is rarely applied. The Committee requests the Government to provide further information on the application in practice of this possibility, including examples as to when it has been resorted to.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observations from trade union organizations. The Committee notes the 2013 observations from the General Union of Workers (UGT) and the International Trade Union Confederation (ITUC) dealing mainly with the determination of minimum services in the event of a strike in public utilities and also the Government’s reply concerning this matter. The Committee further notes the 2013 observations from the General Confederation of Portuguese Workers – National Trade Unions (CGTP–IN) alleging that: (a) section 8 of Act No. 7/2009, which obliges existing trade unions to revise their rules within three years to bring them into line with the new provisions of the Labour Code or otherwise face being dissolved, violates trade union autonomy; and (b) section 447 of the Labour Code, which relates to the registration of trade unions and provides that the competent departments of the Ministry of Labour can give a deadline of six months to trade unions to amend their constitutions if they discover provisions which are contrary to the legislation, has the effect of establishing prior verification of the legality of union constitutions by the labour administration. The Committee notes the Government’s reply indicating that, under Act No. 7/2009, trade union organizations can adopt their constitutions in full freedom and the latter are registered and published even if they contain irregular provisions and, in addition, that intervention by the labour administration (under both section 8 of the Act of 2009 and section 447 of the Labour Code) in relation to the legality of union constitutions is restricted to sending a non-binding opinion to the Public Prosecutor’s Office, which can decide whether or not to call for the judicial invalidation of the disputed provisions.

The CGTP–IN also challenges interference from the labour administration in the internal organization of trade unions through controls made on the regulation by trade union constitutions of the direito de tendência, namely the right of trade union members to constitute currents of opinion through which they may participate in the functioning of the organization. According to the CGTP–IN, the labour administration increasingly imposes on trade unions a model for regulating the abovementioned right. The Committee notes the Government’s indication that: (i) the labour administration and, where appropriate, the Public Prosecutor’s Office and the courts are bound to verify whether trade union constitutions fulfil the obligation to regulate the direito de tendência deriving from article 55.2 of the Constitution and section 450.2 of the Labour Code; and (ii) the Government follows the jurisprudence of the Tribunal da Relação in Lisbon, which indicates that this right must not only be recognized and regulated by trade union constitutions but that the latter must also specify “in what way it can or must be exercised” (the tribunal has also indicated that the individual rights conferred on trade union members to criticise the action of their organization, to be consulted and to elect union representatives are insufficient to ensure observance of the direito de tendência, the exercise of which presupposes the organization of various opinion groups within the trade union and the possibility for them to express themselves). Lastly, the Committee notes the decision of 4 May 2011 of the same tribunal indicating that trade union constitutions are free to define the forms in which this right is implemented in practice. The Committee recalls that, under Article 3 of the Convention, national legislation should only lay down formal requirements respecting trade union constitutions, except with regard to the need to follow a democratic process and to ensure a right of appeal for the members (see 2012 General Survey on the fundamental Conventions, paragraph 100). The Committee therefore requests the Government to initiate discussions with the representative workers’ and employers’ organizations in order to examine the legislative provisions in question and their application in the light of the abovementioned principle. The Committee requests the Government to supply information on this matter in its next report.

Furthermore, the Committee asked the Government to send its observations in reply to the ITUC’s comments of 31 July 2012 concerning the arrest and assault of two trade union leaders by the police at the end of a nationwide rally. The Committee again asks the Government to send the requested observations in its next report.

Article 3. In its previous comments the Committee asked the Government, further to the adoption of Act No. 7/2009 of 12 February 2009 revising the Labour Code, to specify whether conciliation and mediation procedures suspend exercise of the right to strike until completion of the procedures. The Committee notes the Government’s statement that conciliation and mediation do not suspend exercise of the right to strike.

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

The Committee notes the Government’s reply to the comments of 24 August 2010 and 4 August 2011 by the International Trade Union Confederation (ITUC). The Committee also notes the ITUC’s comments of 31 July 2012 concerning the arrest and assault of two trade union leaders by the police at the end of a nationwide rally (one of the trade union leaders was indicted for disobedience). The Committee requests the Government to send its observations on the matter.

Lastly, the Committee recalls that in its previous comments it took note of Act No. 7/2009 of 12 February 2009 to revise the Labour Code. The Committee again asks the Government to specify whether the conciliation and mediation procedures suspend exercise of the right to strike until completion of the procedures. If so, the Committee also requests the Government to indicate the maximum number of days that may elapse between the issuing of the strike notice and the end of the conciliation and mediation procedures.

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

The Committee notes the adoption of several legislative texts, particularly Act No. 7/2009 of 12 February 2009 revising the Labour Code. The Committee asks the Government to specify whether the conciliation and mediation procedures suspend exercise of the right to strike until completion of the procedures. If so, the Government is requested to indicate the maximum number of days that may elapse between the issuing of the strike notice and the end of the conciliation and mediation procedures.

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

The Committee notes the comments of the Confederation of Portuguese Industry (CIP), dated 4 April 2008, relating to the provision of the Labour Code on the right of the workers to impose the obligation on the enterprise to deduct trade union dues from their wages to be sent to the organization of their choice. According to the CIP, this provision is contrary to the principle of trade union independence and autonomy. The Committee observes that, under the terms of section 494 of the Labour Code, the obligation to deduct trade union dues may be established by collective agreement or by agreement between the employer and the worker. The Committee considers in this respect that section 494 does not raise problems of conformity with the Convention.

The Committee also notes the comments of the General Union of Workers (UGT), dated 17 July 2008, according to which police officers do not enjoy the right to strike. In this respect, the Committee recalls that the police and the armed forces, although they enjoy the right to organize in Portugal, as they are essential services in the strict sense of the term (that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population), may have their right to strike restricted or even prohibited.

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

The Committee notes the Government’s report. The Committee also notes the comments of the Confederation of Portuguese Industry (CIP) of 31 May 2006, the Portuguese Confederation of Tourism (CPT) of 7 July 2006 and the General Union of Workers (UGT) of 7 July 2006 on the application of the Convention.

The Committee recalls that in its previous comments it noted that the General Confederation of Portuguese Workers (CGTP) had raised objections to certain provisions in the regulations of the new Labour Code respecting the election of workers’ representatives in the field of occupational safety, health and hygiene which, in its view, were contrary to the right to organize freely. Following an examination of the regulations, the Committee observes that trade unions may promote the election of such representatives.

With regard to the fact that the legislation refers by name to the trade union organizations that are to be members of the Economic and Social Council (CES) and the Permanent Commission for Social Partnership (CPCS), which implies that certain organizations considering themselves to be representative are not included in those bodies, the Committee is addressing these issues in the context of its observation on Convention No. 98.

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

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

The Committee recalls that its previous comments referred to:

-  section 8(2) and (3) of Legislative Decree No. 215/B/75, which requires 10 per cent or 2,000 of the workers concerned, in order to establish a trade union and one-third of the trade unions in a region or category in order to establish a federation; and

-  section 7(2) and (3) of Legislative Decree No. 215/C/75, which requires one-quarter of the employers concerned and up to 20 individuals in order to establish an employers’ organization, and a minimum of 30 per cent of employers’ associations, in order to establish a group or federation.

The Committee notes with satisfaction the Government’s information on the adoption of Act No. 99/2003, which approves the new Labour Code, repeals the abovementioned Decrees and no longer requires a minimum number of workers or employers for the formation of trade unions or employers’ organizations.

The Committee notes that the CGTP refers in its comments to the (recently approved but not yet published) regulations of the new Code, which contain provisions, in the part concerning the election of workers’ representatives, relating to safety and health in the workplace which would entail intolerable interference in the electoral process both from the employers and from the State and which would be contrary to the right to organize freely. The Government indicates that it will submit its comments in this regard once the regulations have been published. The Committee requests the Government to transmit a copy of the text of the regulations with its next report.

The Committee also observes that, according to the Confederation of Portuguese Industry, the deduction of trade union dues from wages by the employer, maintained in the new Labour Code, is not compatible with the principle of autonomy and independence of organizations. The Committee recalls that it noted with interest the adoption of Act No. 81/2001 which provides for the deduction at source of trade union dues. The Committee emphasizes that such a system may favour the development of harmonious labour relations and is not contrary to the Convention.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report and the comments by the General Union of Workers.

The Committee recalls that its previous comments referred to:

-  section 8(2) and (3) of Legislative Decree No. 215/B/75, which requires 10 per cent, or 2,000 of the workers concerned, in order to establish a trade union and one-third of the trade unions in a region or category in order to establish a federation; and

-  section 7(2) and (3) of Legislative Decree No. 215/C/75, which requires one-quarter of the employers concerned and up to 20 individuals in order to establish an employers’ organization, and a minimum of 30 per cent of employers’ associations, in order to establish a group or federation.

The Committee notes with interest the information sent by the Government to the effect that the preliminary draft of the Labour Code prepared by the Government and submitted to the social partners in July 2002 establishes no minimum numbers of workers or employers for the formation of workers’ organizations or employers’ associations. The Committee hopes that the above bill will be adopted in the near future and requests the Government to send a copy of the new Labour Code once it has been enacted.

The Committee also notes with interest the adoption of the following laws:

-  Act No. 81/2001 on check-off (trade union dues deducted from workers’ wages and transferred to the union);

-  Basic Act No. 3/2001 on the right of military personnel to form and join occupational associations; and

-  Act No. 2002 regulating the exercise of the right of association, and the right to collective bargaining and participation of police personnel.

The Committee notes in this connection the comments by the General Union of Workers stating that police personnel are prohibited from exercising the right to strike. The Committee recalls that, under Article 9 of the Convention, the extent to which the guarantees established in the Convention shall apply to the armed forces and the police, shall be determined by national laws or regulations. As such, States can decide that certain rights within the substantive scope of the Convention, and in particular the right to strike, will not apply to these two categories of workers.

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

The Committee notes the information provided by the Government in its report and recalls that its previous comments concerned the following provisions:

-  section 8(2) and (3) of Legislative Decree No. 215/B/75, which requires 10 per cent, or 2,000 of the workers concerned, to establish a trade union, and one-third of the trade unions in a region or category to establish a federation; and

-  section 7(2) and (3) of Legislative Decree No. 215/C/75, which requires one-quarter of the employers concerned and up to 20 individuals in order to establish an employers’ organization, and a minimum of 30 per cent of employers’ associations to establish a group or federation.

The Committee notes that the Government confines itself to repeating the information which it had provided previously, to the effect that the above provisions have not been applied since the Legal Advisor of the Attorney-General of the Republic ruled that they were contrary to the Constitution and to certain international instruments respecting freedom of association. The Committee notes the Government’s statement that the revision of the trade union legislation is not a priority and that, since neither the General Confederation of Portuguese Workers (CGTP), nor the Confederation of Portuguese Industry (CIP), nor the Attorney-General see any impediment to the establishment of workers’ and employers’ associations, it has not amended its labour legislation for the time being.

While noting this information, the Committee emphasizes the importance that it attaches to the observance of the rights of workers and employers, without distinction whatsoever, with the only possible exception of the armed forces and the police, to establish organizations of their own choosing for the defence of their interests, including outside existing trade union structures. The Committee therefore once again expresses the firm hope that the provisions in question will be explicitly repealed from the trade union legislation and requests the Government to keep it informed in this respect.

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

The Committee takes note of the information provided by the Government in its report, and recalls that its previous comments concerned the following provisions:

-- section 8 of Act No. 65/77 of 26 August 1977, as amended by Act No. 30/92 of 22 October 1992, concerning the power of the authorities to define by decree the minimum services that are to be maintained in the event of a strike;

-- section 385 of the Criminal Code, as amended by Legislative Decree No. 48/95 issued in March 1995, providing that a pubic servant who abandons his or her post illegally with the intention of harming or interrupting a public service, is liable to a term of imprisonment of up to one year, or of 120 days together with a fine.

With respect to section 8 of Act No. 65/77 of 26 August 1977, as amended by Act No. 30/92 of 22 October 1992, the Committee takes due note of the decision of the Constitutional Court, No. 868/96 of 4 July 1996, declaring unconstitutional paragraphs 2(g), 4, 5, 6, 7, 8 and 9 of section 8 concerning the power of the authorities to define by Decree the minimum services that are to be maintained in the event of a strike.

Concerning section 385 of the Criminal Code, as amended by Legislative Decree No. 48/95 issued in March 1995, the Committee takes note of the information provided by the Government in its report; however, the Committee again recalls that it accepts that the right to strike may be subject to restrictions, or even prohibition, in the public service or in essential services. The Committee considers, however, that the principle whereby the right to strike may be limited or even prohibited in the public service or in essential services would lose all meaning if legislation defined the public service or essential services in too broad a manner. In the view of the Committee, the prohibition of the right to strike should be limited to public servants exercising authority in the name of the State or to strikes in essential services in the strict sense of the term, namely, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see the General Survey on freedom of association and collective bargaining, 1994, paragraphs 158 and 159). The Committee again requests the Government to amend section 385 of the Criminal Code in order to ensure that sanctions can be imposed for strikes only in cases where the prohibitions in question comply with the principles of freedom of association.

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

The Committee takes note of the information provided by the Government in its report and recalls that its previous comments referred to the following provisions:

-- section 8(2) and (3) of Legislative Decree No. 215/B/75, which requires 10 per cent, or 2,000 workers, to establish a trade union, and one-third of the trade unions of a regional category to establish a federation; and

-- section 7(2) and (3) of Legislative Decree No. 215/C/75, which requires one-quarter of the employers concerned but not more than 20 individuals in order to establish an employers' organization and a minimum of 30 per cent of employers' associations to establish a group or federation.

The Committee notes that the Government indicates again that, following the ruling by the Advisory Council of the Attorney-General of the Republic that these provisions were contrary to the Constitution and other international instruments relating to freedom of association, they are no longer applied in practice. The Government also indicates that this principle was confirmed by the Ministry of Labour on 6 June 1979 and is binding.

The Committee also notes that according to the Government's information, the international instruments ratified by the Government are legally binding, form part of internal law and have the same force as ordinary legislation. In this regard, the Government emphasizes that section 8(2) and (3) of Legislative Decree No. 215/B/75 and section 7(2) and (3) of Legislative Decree No. 215/C/75 are regarded as implicitly repealed, which is equivalent to an explicit repeal under section 7 of the Civil Code.

In this connection, the Committee notes that, according to the Government, both the General Confederation of Portuguese Workers and the Confederation of Portuguese Industry have indicated, with reference to the present report, that there are in practice no obstacles to the establishment of workers' and employers' organizations resulting from the provisions in question. Finally, notwithstanding the foregoing remarks, the Government confirms that it would be appropriate to repeal such provisions of trade union law when the law is revised.

The Committee again expresses the firm hope that the provisions of the trade union legislation in question will be expressly repealed and requests the Government to keep it informed in this regard.

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

1. Power of the authorities to define by decree the minimum services to be maintained in the case of strikes. The Committee requests the Government to send it a copy of Decision No. 868/96 taken by the Constitutional Court on 4 July 1996, which appears to have declared as unconstitutional, with binding force, certain paragraphs of section 8 of Act No. 65/77 of 26 August 1977 (amended by Act No. 30/92 of 22 October 1992) concerning the power of the authorities to define by decree minimum services.

2. Right to strike of public servants. Furthermore, the Committee notes the provisions of section 385 of the Criminal Code, as amended by Legislative Decree No. 48/95 issued in March 1995, which provide that a public servant who leaves his post illegally with the intention of harming or interrupting a public service is liable to a prison sentence of up to one year's duration or a prison sentence of 120 days together with a fine. In this regard, the Committee recalls that it accepts that the right to strike may be subject to restrictions, or even prohibition, in the public or essential services. The Committee considers, however, that the principle whereby the right to strike may be limited or even prohibited in the public or essential services would lose all meaning, if legislation defined the public or essential services in too broad a manner. In the view of the Committee, the prohibition of the right to strike should be limited to public servants exercising authority in the name of the State or to strikes in essential services in the strict sense of the term, i.e. in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see paragraphs 158 and 159 of the General Survey on the freedom of association and collective bargaining, 1994). Consequently, the Committee requests the Government to amend the text of section 385 of the Criminal Code so as to ensure that penalties may only be imposed for strikes in cases where the prohibitions in question comply with the principles of freedom of association.

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

The Committee recalls that its previous comments referred to the need to bring the following provisions of the national legislation into conformity with the Convention and national practice, since they require too high a number of workers and employers in order to form occupational organizations:

-- section 8(2) and (3) of Legislative Decree No. 215/B/75 which requires 10 per cent or 2,000 workers to establish a trade union, and one-third of the trade unions of a region or category (respectively) to establish a federation; and

-- section 7(2) and (3) of Legislative Decree No. 215/C/75, which requires one-quarter of the employers concerned but not more than 20 individuals in order to establish an employers' organization and a minimum of 30 per cent of employers' associations to establish a group or federation (respectively).

For several years, the Government has indicated that these provisions, according to the General Attorney of the Republic, are not applied in practice.

The Committee firmly hopes that the above provisions will be expressly amended in the near future and asks the Government to inform it of any positive changes in this respect.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

With regard to Act No. 30 of 20 October 1992 on the right to strike, which provides that if the parties fail to reach an agreement on the definition of minimum services, the latter will be determined by two ministries, the Committee notes the information supplied to the Committee on Freedom of Association (Case No. 1782).

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report and recalls that its comments referred to the need to bring the following provisions of the national legislation into conformity with the Convention and national practice, since they require too high a number of workers and employers in order to form professional organizations:

- section 8(2) and (3) of Legislative Decree No. 215/B/75, which requires 10 per cent or 2,000 workers to establish a trade union, and one-third of the trade unions of a region or category (respectively) to establish a federation; and

- section 7(2) and (3) of Legislative Decree No. 215/C/75, which requires one quarter of the employers concerned but not more than 20 employers in order to establish an employers' organization and a minimum of 30 per cent of employers' associations to establish a group or federation (respectively).

The Committee observes that the Government reiterates that, in practice, these provisions cannot be applied as they are incompatible with the Constitution and that they will be abolished when the legislation on labour relations is revised.

The Committee hopes that the above provisions will be amended in the near future and asks the Government to inform it of any positive changes in this respect.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

In its previous direct request, the Committee noted the adoption of Act No. 30 of 20 October 1992 respecting the right to strike, which provides that minimum services may be determined by collective agreement or by agreement with the representatives of the workers. The Committee also notes that the Act provides that in cases in which the parties do not reach an agreement, the determination of these services is made by the Ministry of Employment and Social Security, together with the Minister competent for the sector in question. The Committee considered that it would be preferable, in the event of disagreement between the parties, for minimum services in those public services which are not considered to be essential in the strict sense of the term to be determined by an independent body. The Committee therefore requested the Government to supply information on the effect given in practice to this new provision of the law.

In this respect, the Committee notes the Government's statement that during the period covered by the report it had to intervene on two occasions to determine minimum services when notice was given of strikes and that since a complaint has been made to the Committee on Freedom of Association by the General Union of Workers on the determination of minimum services in the event of a strike (Case No. 1782), it will expand its comments on this subject in that context.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report.

The Committee recalls that for many years its comments have referred to the need to bring into conformity with the Convention and national practice the following provisions of national legislation (which require too high a number of workers and employers to establish a representative organization): section 8(2) of Legislative Decree No. 215/B/75, which requires 10 per cent or 2,000 of the workers concerned, and section 7(2) of Legislative Decree No. 215/C/75, which requires one-quarter of the employers concerned to establish a representative organization; section 8(3) of Legislative Decree No. 215/B/75, which requires one-third of the trade unions of a region or category, and section 7(3) of Legislative Decree No. 215/C/75, which requires a minimum of 30 per cent of employers' associations to establish a group or a federation.

The Committee notes the Government's indication in its report that: (1) sections 8(2) and (3) of Legislative Decree No. 215/B/75 and section 7(2) and (3) of Legislative Decree No. 215/C/75 are no longer in force due to their incompatibility with the Constitution and international Conventions, on the grounds that the Portuguese legal system includes the concept of implicit derogation, which has the same value as explicit derogation; and (2) that the provisions in question will be expressly repealed when the legislation is revised, which is not currently envisaged.

In these conditions, the Committee once again draws the Government's attention to the need to explicitly amend the provisions in question and requests it to transmit with future reports any draft text which it envisages adopting in this respect.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the adoption of Act No. 30/92 of 20 October, to amend Act No. 65/77 respecting the right to strike. In this connection, the Committee notes that minimum services may be determined by collective agreement or by agreement with the representatives of the workers. Nevertheless, the Committee notes that in cases in which the parties do not reach an agreement, the determination of these services is made by the Minister of Employment and Social Security together with the Minister competent for the sector in question.

The Committee considers that it would be preferable for minimum services, in those public services which are not considered to be essential in the strict sense of the term, to be determined by an independent body in the event of disagreement between the parties. The Committee therefore requests the Government to supply information in future reports on the effect given in practice to this new provision of the law.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the Government's report, the attached documentation and the comments of the Confederation of Portuguese Business.

The Committee recalls that for many years its comments have referred to the need to bring into conformity with national practice and the Convention the following provisions of national legislation (which require too high a number of workers and employers to establish a representative organization): section 8(2) of Legislative Decree No. 215/B/75, which requires 10 per cent or 2,000 of the workers concerned and section 7(2) of Legislative Decree No. 215/C/75 which requires one-quarter of the employers concerned to establish a representative organization; section 8(3) of Legislative Decree No. 215/B/75 which requires one-third of the trade unions of a region or category and section 7(3) of Legislative Decree No. 215/C/75 which requires a minimum of 30 per cent of employers' associations to establish a group or a federation. The Committee notes the Government's indication in its report that the above provisions have not yet been amended since, according to the Attorney-General of the Republic, they are not applied in practice.

The Committee therefore considers that the provisions in question, which establish too high a number of members for the establishment of organizations of workers and employers, should be amended to bring the legislation into conformity with the Convention and it once again requests the Government to supply copies in future reports of any text which improves the situation in this respect.

The Committee is also sending a direct request to the Government.

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

With reference to its previous requests to bring into conformity with national practice and the Convention the provisions of national legislation which impose too high a number of workers and employers to establish representative organisations, the Committee notes from the Government's report that the situation as regards the legislation remains unchanged (section 8(2) of Legislative Decree No. 215/B/15 which requires 10 per cent or 2,000 of the workers concerned; section 7(2) of Legislative Decree No. 215/C/75 which requires one-quarter of the employers concerned to establish a representative organisation; section 8(3) of Legislative Decree No. 215/B/75 which requires one-third of the trade unions of a region or category; and section 7(3) of Legislative Decree No. 215/C/75 which requires a minimum of 30 per cent of employers' associations to establish a group or a federation).

In this connection, the Committee recalls that it had already acknowledged that the public prosecutor of the Republic had declared these provisions to be unconstitutional, that the prosecutor's statement had been approved by the Ministry of Labour in an Order of 6 November 1979 and that the competent departments of the Ministry of Labour registered the statutes of occupational associations of employers and workers without verifying the number of persons attending their constituent assemblies.

The Committee also noted the Government's assurances that the matter would be taken into account at the formal level during the revision of the legislation.

The Committee once again requests the Government to supply copies in future reports of the amended texts when they are adopted.

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

The Committee takes note of the Government's report and the enclosed documents.

Articles 2 and 5 of the Convention. In its previous direct request, the Committee asked the Government to amend its legislation so as to bring it into conformity with the Convention and also with practice because, according to earlier information from the Government, following the statement made by the public prosecutor which was approved by the Minister of Labour in an Order of 6 November 1979, the provisions requiring too high a number of workers and employers for the creation of organisations have been pronounced unconstitutional and are no longer applied.

The provisions in question provide for too high a number required for the establishment of workers' or employers' organisations (10 per cent or 2,000 of the workers concerned (section 8.2 of Legislative Decree No. 215/B/75) and one-quarter of the employers concerned (section 7(2) of Legislative Decree No. 215/C/75)) and of groups or federations (one-third of the trade unions of a region or category (section 8(3) of Legislative Decree No. 215/B/75), and 30 per cent of employers' associations (section 7(3) of Legislative Decree No. 215/C/75)).

The Committee notes from the Government's report that the suggestions made by the Committee of Experts will be taken into consideration in preparing the Bill on trade unions.

The Committee therefore calls the attention of the Government yet again to the importance it attaches to the right of workers and employers to establish organisations of their own choosing and to the right of occupational organisations to form federations and confederations in full freedom. It observes, in particular, as it has indicated in its 1983 General Survey on Freedom of Association and Collective Bargaining, that legislation laying down too high a number of members for the establishment of a union, or unions for the establishment of a federation, should be amended to ensure that the numbers in question are limited to a reasonable level, so as to avoid hampering the formation of the organisations (see paragraph 123 of the General Survey). In the opinion of the Committee, legislation that required, for example, fewer than 50 workers for the establishment of a union would be compatible with the provisions of the Convention.

However, the Convention places no obstacle in the way of a distinction being made between the most representative union and the others, provided that this distinction is limited to the recognition of certain rights - principally in regard to representation for the purposes of collective bargaining, consultation by governments, or designating representatives to international organisations, to the most representative trade unions, determined in accordance with objective and pre-established criteria. In any event, however, minority organisations should be allowed to function and at least to have the right to make representations on behalf of their members and to represent them in cases of individual grievances (see paragraph 141 of the General Survey).

The Committee again requests the Government, in its next report, to provide information on the measures taken to bring its legislation into conformity with the Convention and to provide a copy of any draft legislation drawn up to this end.