Interim Report - Report No 113, 1970

Case No 266 (Portugal) - Complaint date: 23-MAY-61 - Closed

1. 4. The Governing Body recalls that allegations relating to infringement of trade union rights in Portugal have been under examination by the Committee for some years and that it has submitted a number of reports to the Governing Body on the subject. Since the Committee last examined the case new developments have occurred and in these circumstances the Committee considers it appropriate to resume its examination of these allegations.
2. 5. The allegations were originally brought before the Committee by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 23 May 1961. The Portuguese Government initially replied to these allegations in a communication dated 10 October 1961, submitting a number of further observations, in communications dated 26 March 1963, 28 January 1964 and 23 January 1968, respectively. The Committee examined the complaint at its sessions held in May 1962, May 1963, February 1964 and May 1968. At the time when the complaint was brought before the Committee Portugal had not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). In 1964, however, Portugal ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
3. 6. Apart from the general allegation that many of the provisions of Portuguese legislation were contrary to the letter and spirit of Conventions Nos. 87 and 98, the complaint contained a number of subsidiary allegations concerning specific aspects of the Portuguese system of trade unions. In essence these allegations were as follows:
   • (a) under the terms of the legislation then in force only one trade union could be established in any one area for each occupation;
   • (b) the conditions to be fulfilled by trade unions in order that they might obtain ministerial approval of their statutes-an essential prerequisite to their legal existence-were such as to restrict seriously the right to organise;
   • (c) the elected management committee of a trade union required the approval of the Minister of Corporations before the election could be considered legally valid, and even where such committees had received ministerial approval, they could still be replaced by government appointees;
   • (d) trade unions could be suspended or dissolved for a variety of reasons, including that of promoting strikes or stoppages of work, by simple decision of an administrative authority;
   • (e) the Minister of Corporations could require workers to make contributions to the sole trade union allowed to exist in any one area for each occupation; and this even if the workers in question were not union members;
   • (f) the right of workers' and employers' organisations freely to draw up collective agreements was seriously impaired by, in particular, the fact that such agreements once drafted were subject to revision by a government agency (the National Institute of Labour and Social Welfare) and by the fact that before coming into force they had to receive the approval of the Minister of Corporations;
   • (g) a trade union might not become a member of any organisation of an international character or appoint representatives to any international congress or demonstration without the permission of the Government;
   • (h) strikes and lockouts were illegal in Portugal and penalties were prescribed for persons convicted of these " offences ";
   • (i) the right of association was denied to indigenous workers in Portuguese " overseas provinces ".
4. 7. Since the Committee last examined the case in May 1968 a number of changes have been brought about in the Portuguese system of trade unions by the promulgation on 16 May 1969 of Legislative Decree No. 49058. This decree revises a number of earlier enactments examined by the Committee. Apart from effecting certain changes in Legislative Decree No. 23050 of 23 September 1933, which is the basic text on Portuguese trade union law, it also repeals-so far as trade unions are concerned-a number of ancillary Decrees: No. 31946 of 31 March 1942; No. 32820 of 2 June 1943; No. 23340 of 12 December 1933; No. 25116 of 12 March 1935; No. 27228 of 23 November 1936; and No. 42522 of 23 September 1959. Furthermore, on 8 August 1969, Legislative Decree No. 49212 was promulgated. This decree introduces a number of amendments to the system of collective bargaining, conciliation and arbitration and repeals Decrees Nos. 36173 of 6 March 1947, 32749 of 15 April 1943 and 44784 of 7 December 1962, as well as the supplementary legislation thereto.
5. 8. In these circumstances the Committee will now review the various questions raised in the allegations relating to the trade union system in Portugal and its " overseas provinces ". The Committee will begin by examining the general allegation relating to the non-observance of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It will then proceed to examine the specific allegations along the following lines: firstly, the original allegation and the Government's reply will be stated; secondly, the conclusions reached by the Committee on the basis of the original legislation and the information submitted by the Government, as set forth in its earlier reports on the subject will be given; thirdly, the Committee will examine the extent to which the new legislation has changed the system hitherto in force; fourthly, where appropriate, the Committee will state its conclusions on the basis of the new legislation.
   • Allegations relating to the Non-Observance of International Labour Conventions
6. 9. As indicated above, at the time when the complaint was originally brought before the Committee Portugal had not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). As a preface to its allegations relating to trade union legislation in Portugal and Portuguese non-metropolitan territories, the ICFTU claimed that many of the provisions of Portuguese legislation were contrary to the spirit and letter of these Conventions and requested the ILO to call upon the Government of Portugal to amend its legislation accordingly and to invite the Government to ratify the instruments in question.
7. 10. When the question came before the Committee for the first time in 1962 the Government, in its reply, considered it quite improper that the complainant should impugn Portuguese legislation on the basis of a Convention which it had not ratified.
8. 11. The Committee in its observations on this part of the case pointed out that, while it was true that Portugal had not ratified the two Conventions in question, it was nevertheless bound by the more general provisions of the Declaration of Philadelphia, which forms an integral part of the Constitution of the International Labour Organisation. Article 1 of the Constitution, as amended in Montreal in 1946, provides that the Organisation exists for the promotion of the aims and the purposes set forth in the Declaration, which recognises ". the solemn obligation of the International Labour Organisation to further among the nations of the world programmes which will achieve ... the effective recognition of the right of collective bargaining, the co-operation of management and labour in the continuous improvement of productive efficiency, and the collaboration of workers and employers in the preparation and application of social and economic measures ". Under these circumstances the Committee, as it had done in a number of earlier cases, considered it appropriate " that it should, in discharging the responsibility to promote these principles which has been entrusted to it, be guided in its task, among other things, by the provisions relating thereto approved by the Conference and embodied in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which afford a standard of comparison when examining particular allegations, more particularly as Members of the Organisation have an obligation under article 19 (5) (e) of the Constitution to report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of their law and practice in regard to matters dealt with in unratified Conventions, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Conventions ". Thus, while recognising that the provisions of Conventions Nos. 87 and 98 were not binding upon Portugal, the Committee considered that it should examine the specific allegations relating to these Conventions made in the present case with a view to ascertaining the facts and reporting them to the Governing Body.
9. 12. The Government of Portugal ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), in 1964, effect being given to the provisions of this instrument by Legislative Decree No. 45758 promulgated on 12 June 1964. Thus, when the Committee next examined this aspect of the case in May 1968, its observations were confined to the question raised by the non-ratification by Portugal of the Freedom of Association and Protection of the Right LO Organise Convention (No. 87).
10. 13. In this connection the Government stated that, in accordance with the Constitution of the ILO, Convention No. 87, while deserving the greatest respect by Portugal, continues to have the status of a Recommendation for it, as it has not been ratified by Portugal and " does not require it to introduce into its domestic law any provisions corresponding to those of an international instrument, despite its obligations to report at appropriate intervals to the Governing Body on the difficulties preventing ratification ".
11. 14. The Government acknowledged that the principle of freedom of association had been incorporated in the Constitution of the ILO, since the Declaration of Philadelphia was an integral part thereof, and further recognised the possibility of conceding that the Organisation was competent to examine allegations of violation of that principle, even where such allegations did not relate to breaches of obligations arising out of ratification of the Conventions relating to freedom of association.
12. 15. The Government asserted, however, that unless the act of ratifying Convention No. 87 was to be deprived of any legal significance the principle laid down in the Constitution of the ILO must not be confused with the detailed standards contained in that Convention.
13. 16. In conclusion the Government expressed the opinion that, although the recognition of the right of freedom of association, as a general standard, was incumbent on all States Members, there might be different views regarding the method to be followed in order to attain the aim in question.
14. 17. While recognising that the non-ratification by Portugal of Convention No. 87 meant that that country was not under the same obligations as if it were a party to that instrument, the Committee pointed out that, with regard to freedom of association, it was precisely in order to supplement the machinery of supervision established with a view to ensuring the application of ratified Conventions that it had been decided to institute special machinery, of which the Committee on Freedom of Association was an essential element and which-following the principle that " the function of the International Labour Organisation in regard to trade union rights is to contribute to the effectiveness of the general principle of freedom of association as one of the primary safeguards of peace and social justice " -was empowered to examine complaints relating thereto lodged against States Members of the Organisation, whether they had ratified the Conventions relating to freedom of association or not.
15. 18. Under these circumstances and in view of the fact that the Government had furnished its observations on the substance of the case, the Committee felt it appropriate to examine the allegations in the above spirit with a view to reporting to the Governing Body on the subject.

Examination of the Substance of the Case

1. (a) Restriction of the Number of Trade Union Organisations that May Be Formed
2. 1. Allegations and Reply by the Government
3. 19. It was alleged that under Portuguese law only one legally constituted trade union was recognised for each occupation in any one region and that such a situation was contrary to Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which provides that " workers without distinction whatsoever shall have the right to establish and join organisations of their own choosing without previous authorisation ".
4. 20. In its reply the Government expressed the view that Portuguese law was by no means unique in this respect and that in several other countries there existed important restrictions on the number of trade unions that might be established. In some countries there existed a single pattern-a single trade union in each undertaking, a national trade union for each branch of industry and a central council of trade unions at the national level which directed the movement as a whole. In another country only one organisation of workers and one of salaried staff could be set up in one undertaking; and in some countries registration could be refused to a union if its members could conveniently belong to an organisation which was already registered and was representative of the occupation.
5. 2. Conclusions of the Committee at Its Earlier Sessions
6. 21. In dealing with this aspect of the case at its session in May 1962, the Committee examined the relevant provisions of Portuguese legislation and, in particular, sections 1 to 5, 7 and 13 of Legislative Decree No. 23050 of 23 September 1933.
7. 22. The situation under the above-cited legislation may be summarised as follows: sections 1 and 3 of Legislative Decree No. 23050 of 23 September 1933 provide that in each district national trade unions-each with not less than 100 members, unless the Government authorises a smaller number-may be set up, but that the State shall recognise only one union for each occupation within the district. The national trade unions (their branches, according to section 5, may not exercise any rights save through the national trade unions) have a legal monopoly of the right to represent the interests of the whole occupational category concerned in the district (section 13), including members and non-members, and to take part in the system of industrial relations established by law. This would appear not merely to restrict " recognition " to one organisation but to preclude all possibility of any other organisation having any of the characteristics of a trade union being formed in the occupation and district concerned.
8. 23. In examining these provisions the Committee observed that the Portuguese situation could not be compared with that of some other countries, where registration was voluntary, although accompanied by considerable advantages in the sphere of representation of the workers, and did not prevent the establishment and continued existence of non-registered organisations.
9. 24. As regards the position existing in countries where, like Portugal, registration was not voluntary, the Committee noted that when a situation of this sort had come before the ILO Committee of Experts on the Application of Conventions and Recommendations, this Committee had observed that " there is a fundamental difference, with respect to the guarantees of freedom of association and protection of the right to organise between a situation in which a trade union monopoly is instituted or maintained by legislation and the factual situations which are found to exist in certain countries in which all the trade union organisations join together voluntarily in a single federation or Confederation, without this being the direct or indirect result of legislative provisions applicable to trade unions and to the establishment of trade union organisations. The fact that workers and employers generally find it in their interests to avoid a multiplication of the number of competing organisations does not, in fact, appear sufficient to justify direct or indirect intervention by the State and, especially, intervention by the State by means of legislation ".
10. 25. In these circumstances the Committee recommended the Governing Body to draw the attention of the Government to the importance which it has always attached to the generally accepted principle that workers should have the right to establish and join organisations of their own choosing without previous authorisation, and to its view that the provisions of Legislative Decree No. 23050 of 23 September 1933 prohibiting the recognition of more than one trade union in any one occupation in a given district were incompatible with this principle.
11. 26. When the Committee next examined this aspect of the case at its session in May 1968 z, it had before it the communication from the Government dated 23 January 1968 containing a number of detailed observations on the allegation in question.
12. 27. The Government in its reply recalled that membership of trade unions was not compulsory in Portugal and that such membership was not restricted on any ground, whether ideological or social, that trade unions were always established on the initiative of the workers and that they would necessarily follow the orientation given to them by their members. The Government further considered that there would only be violation of the principle of freedom of association if membership were compulsory or if membership of the trade unions were restricted to workers of a particular orientation.
13. 28. The Government went on to state that section 3 of Legislative Decree No. 23050, which laid down the rule that only one union would be recognised for each occupational category and district, " no longer applied ". It then mentioned that Legislative Decree No. 27228 of 1936 enabled multi-district unions to be established and that dozens of unions had since then been set up with a geographical scope very different from that of the district.
14. 29. The Government then quoted some of the Recommendations adopted by the Third National Labour Conference held in 1963, in which reference was made to the desirability of structural changes and of regrouping weaker unions, of introducing more flexible conceptions of " occupations " and " occupational categories ", and of the possibility of providing for the representation of non-organised occupations by existing unions, etc. The Government stated that, in accordance with this orientation and thanks to considerable flexibility in the legislative provisions in question, many unions were now seeking to change their structures, with complete approval on the part of the Government.
15. 30. The Government emphasised that, despite the provisions of Legislative Decree No. 23050, it had always been recognised that a particular occupation could be represented in a given region by more than one union, according to the industry concerned. The Government quoted the example of office employees in the wool industry who had joined the union for that industry rather than unions of office employees, although these also existed in the regions concerned.
16. 31. The Government further stated that the existence of a trade union had not prevented the establishment of other workers' associations in the same region whenever those concerned had considered this desirable; for example, the establishment of the Association of Portuguese Female and Male Nurses in 1965 did not give rise to any opposition despite the fact that a similar union already existed.
17. 32. The Committee concluded from the explanations supplied by the Government regarding this aspect of the case that a certain degree of liberalisation of the system had taken place or was at least contemplated. This liberalisation appeared to have taken the form of a less stringent application of the provisions of Legislative Decree No. 23050, allowing the establishment of trade unions to be authorised on a basis other than that of the district; it seemed also to have resulted in the possibility of a single occupation's being represented by more than one union in a particular region; and it also appeared to have been expressed in the greater flexibility advocated by the National Labour Conference in 1963 with regard to the conceptions of " occupation " and " occupational category ".
18. 33. The Committee noted this trend towards a development of the situation, but it considered that it did not seem possible to deduce from the Government's explanations that the promulgation of Legislative Decree No. 27228 had resulted in the repeal either of Legislative Decree No. 23050 as a whole or of section 3 alone. If reference was made to the text of Legislative Decree No. 27228 it would be noted that under the single section constituting this instrument " the Assistant Secretary of State for Corporations and Social Welfare may authorise the establishment of national trade unions for areas of two or more districts if it is found impossible to organise certain occupations in any other manner ". It emerged from the final clause that it was only where an occupation could not be organised according to the rule of a single union per district that this rule might be waived.
19. 34. The Committee considered that if its interpretation of the situation was correct, it did not appear that it needed to change the conclusions at which it had arrived in its 65th Report, namely that a system under which only one trade union could be recognised for each district and occupation was incompatible with the generally accepted principle that workers should have the right to establish and join organisations of their own choosing.
20. 3. Extent of Changes Introduced by the New Legislation
21. 35. Legislative Decree No. 49058 promulgated on 28 May 1969 effects a number of changes in the provisions of Legislative Decree No. 23050 concerning this aspect of the case. Whereas the original section 1 of Legislative Decree No. 23050 limited national trade unions to combinations of more than 100 workers engaged in the same profession, the new formulation contains no provision regarding the minimum number of workers nor does it lay down that the workers in question should be engaged in the same profession: instead, it makes it possible for a national trade union to encompass (in addition to workers belonging to the same profession) workers belonging to similar or allied trades.
22. 36. In addition, whereas under the old section 3 of the decree there was an absolute prohibition against the establishment of more than one union for each occupation in each district, under the new section 3 one union may represent more than one occupation in the same district or two or more unions may represent the same occupation in the same district. This possibility, however, is subject in both cases to the fulfilment of a number of conditions, the most important of which is the approval of the National Institute of Labour and Social Welfare (the section of the Ministry of Corporations which deals with labours matters). Further, the provisions of the old section 3 restricting the coverage of trade unions to a district and requiring that their head offices be situated in the chief town of the district have been replaced by the provisions of the new section 3, which provide that " the structure, occupational scope and geographical area of trade unions shall be those fixed in their statutes, in harmony with those of the other organisations belonging to the same corporation and in accordance with the needs of the occupations concerned ".
23. 37. On the other hand, the new section 4 establishes that national trade unions shall be sufficiently large and financially solvent to be able to carry out the functions entrusted to them by this decree or in their statutes. Subsection 1 provides that, where classes of workers are debarred from establishing independent unions in accordance with the criteria set forth in the main part of section 4 (referred to above), they shall join the organisation representing the class of workers nearest to them in character, thus forming within the said organisation an occupational section.
24. 4. Conclusions
25. 38. In these circumstances the Committee recommends the Governing Body:
26. (a) to take note that the legislation has been modified in the following respects:
27. (i) the provisions of section 1 of Legislative Decree No. 23050 whereby a trade union could be established only by more than 100 workers engaged in the same profession have been deleted;
28. (ii) the provisions of section 3 have been amended so as to make it possible for trade unions to extend their geographical coverage beyond a district;
29. (iii) section 3 has been further amended in such a way as to make it possible for one trade union to represent more than one occupation in the same district or for two or more trade unions to represent the same occupation in the same district;
30. (b) to draw the attention of the Government to its view that in order to give effect to the generally accepted principle that workers should have the right to establish and join organisations of their own choosing without previous authorisation it would be necessary to take the following steps:
31. (i) to delete the provisions in section 3 whereby the approval of a government agency must be obtained before either one trade union may represent more than one occupation in the same district or two or more trade unions may represent the same occupation in the same district;
32. (ii) to remove the restrictions imposed on trade unions in section 4 whereby only those of a certain minimum size and financial solvency may legally exist.
33. (b) Obligation to Submit Trade Union Rules for Approval by Authorities
34. 1. Allegations and Reply by the Government
35. 39. The complainants alleged that trade union rules were subject, under Legislative Decree No. 23050 of 23 September 1933, to the approval of the Minister of Corporations, who alone was entitled to authorise the legal existence of a trade union, and that the application for approval of rules or amendments to rules had to be accompanied by a report from the National Institute of Labour and Social Security indicating whether approval should be granted or whether changes in the rules should be required. The complainants further alleged that trade union rules were required by the decree to contain a declaration of respect for the principles and purposes of the national community, a renunciation of any and every form of activity, internal or external, which was contrary to the interests of the Portuguese nation, a recognition that the trade union was a factor of active co operation with all the other factors in the economy, and a repudiation of the class war. These provisions, in the view of the complainants, were contrary to Article 3, paragraph 1, of the Freedom of Association and Protection of the Right to Organisation Convention, 1948 (No. 87).
36. 40. The Government stated in its reply that the National Institute of Labour and Social Welfare merely ascertains whether the rules were in conformity with the law and whether a new organisation was financially viable. If so, approval was not refused; against refusal an appeal would lie to the courts. All unions now existing in Portugal, continued the Government, had freely determined their own rules; the Minister's right to approve rules did not carry with it the power to introduce changes therein. The fact that a check was made to ensure that a union's Constitution and rules conformed to statutory provisions was equivalent to what took place in several countries, some of which had ratified the said Convention, and, in the view of the Government, formalities imposed by national laws and regulations as regards the establishment and operation of trade unions were compatible with the Convention so long as they did not infringe the guarantees provided for therein.
37. 41. The Government expressed the view that the provisions concerning the matters that, according to the complainants, had to be set forth in trade union rules merely gave effect to certain accepted principles which in no way affect freedom of association.
38. 2. Conclusions of the Committee at Its Earlier Sessions
39. 42. The Committee prefaced its examination of this part of the case with the observation: " If in certain cases in the past the Committee has come to the conclusion that a requirement that union rules shall comply with national statutory requirements does not constitute a violation of the generally accepted principle that workers' organisations should have the right to draw up their Constitutions and rules in full freedom, it has done so only after it has satisfied itself that such statutory requirements themselves do not infringe the principle of freedom of association and also that approval of the rules by the competent authority is not within the discretionary powers of such authority." In the light of the above observation, the Committee proceeded to an examination of the relevant provisions of Legislative Decree No. 23050.
40. 43. Section 8 of Legislative Decree No. 23050 originally read as follows:
41. 8. The national trade unions shall not be deemed to be formed or to exist legally until their rules have received the approval of the Under-Secretary of Corporations and Provident Institutions: they shall be directly subordinate to the National Institute of Labour and Social Welfare and subject as regards public order to the administrative authorities. Approval of the rules shall be granted by a letter patent, and notice thereof shall be published in the Bulletin of the said Institution. An amendment of the rules shall not be valid unless approved by higher authority.
42. Sole subsection. A special register of national trade unions shall be kept in the National Institute of Labour and Social Welfare, and all the important facts concerning the existence of each trade union and its various branches shall be recorded therein.
43. Sections 15 to 18 of the decree read as follows:
44. 15. The rules of every national trade union shall comprise the following:
45. (a) the name of the trade union, its head office and its aims;
46. (b) a declaration of respect for the principles and purpose of the national community and an express renunciation of any and every form of activity, internal or external, which is contrary to the interests of the Portuguese nation;
47. (c) a recognition of the fact that the trade union constitutes a factor required for active co-operation with all the other factors of the national economic system, and consequently a repudiation of the class war;
48. (d) the method and conditions for the admission of members, their rights and duties, the cases in which they may be expelled and the procedure for expulsion, the payments to which they are liable together with the intervals thereof, and the advantages guaranteed to them;
49. (e) the rules for the establishment of branches, their operations and their contributions to the expenses of the trade union, which shall not in any case exceed 50 per cent of the contributions collected by the branch;
50. (f) the method of appointing the managing committee, and its powers and duties;
51. (g) the rules for the Constitution and proceedings of general meetings, the organisation and powers and duties of the officers of the said meetings, the exercise of the right to vote and the procedure for amending the rules;
52. (h) the procedure for winding up in the event of the dissolution of the trade union.
53. ......................................................................................................................................................
54. 16. The request for the approval of the rules of a new trade union shall be made in the form of an application signed by not less than five founding members who are sui juris; it shall be accompanied by two copies of the rules, one of which shall be signed by all the founding members, stating their addresses and the places and undertakings where they engage in their occupation.
55. (1) The applications and documents mentioned in this section shall be delivered directly to the Under-Secretary of Corporations and Provident Institutions or in return for a receipt to the civil governor for the district where the trade union is to be established. In the latter case the civil governor shall forward them at once to the Under-Secretary of Corporations and Provident Institutions together with all the information which he deems necessary.
56. (2) The request for the authorisation of the branches mentioned in section 5 shall be made in the form of an application signed by the chairman of the managing committee of the trade union concerned and not less than three founding members who are sui juris; it shall be accompanied by two copies of the rules of the proposed branch, one of which shall be signed by all the founding members, in the same manner as for the authorisation of a trade union.
57. 17. The request for the approval of amendments to the rules shall be made in the form of an application signed by the managing committee, and shall be accompanied by two copies of the said amendments (one of which shall be signed by the members of the managing committee), a certified copy of the minutes of the general meeting at which the amendments were adopted, a statement of the number of members who took part in the voting, and a list of the existing members.
58. 18. The application mentioned in section 16 shall be submitted for decision together with a report of the National Institute of Labour and Social Welfare stating:
59. (1) whether the rules contain anything contrary to the National Labour Code, this legislative decree or the general laws;
60. (2) whether the rules comply with the conditions necessary for approval or will not do so until certain amendments have been effected;
61. (3) whether the applicants and founding members are actually engaged in a particular occupation as required, and whether the proposed trade union organisation is justified in view of the economic and social interests of the community.
62. 44. The Committee observed that subparagraphs (a), (d), (f), (g) and (h) of section 15 cited above enumerated a number of formal matters which unions normally deal with in their rules and could not in themselves be regarded as restricting their right to draw up their rules in freedom. Subparagraph (e), however, required a union to limit the payments to the union by its branches to 50 per cent of the contributions received by such branches. The question of how much money a union should receive from its own branches was normally a matter for a union to decide for itself, in its rules, at its own discretion. While the Committee had not been called upon to pronounce on such a provision in the case of union branches, it had expressed the view that a legal restriction of the amount which a federation might receive from its constituent unions might appear to be contrary to the generally accepted principle that workers' organisations should have the right to organise their administration and activities and those of the federations which they form.
63. 45. The Committee also observed that, according to section 18 (3) of Legislative Decree No. 23050 (cited above), the report made by the Institute to the Minister also had to state " whether the proposed trade union organisation is justified in view of the economic and social interests of the community ". As the decree laid down no criteria for determining this matter, it appeared that the decision on this point lay within the discretion of the Minister on the basis of the report made by a body which was in fact a section of the Ministry.
64. 46. The Committee further observed that subparagraphs (b) and (c) of section 15 of Legislative Decree No. 23050 required the inclusion in trade union rules of a declaration of respect for the principles and purpose of the national community, an express renunciation of any and every form of activity, internal or external, which was contrary to the interests of the Portuguese nation, and a recognition of the fact that the trade union constituted a factor required for active co-operation with all the other factors of the national economic system, and consequently a repudiation of the class war.
65. 47. In the view of the Committee, the question at issue here was whether such provisions merely gave effect to a number of accepted principles which did not affect freedom of association-as the Government maintained-or whether they might imply some degree of subordination of the trade unions to the Government's economic policy. This was the test applied by the Committee when it examined somewhat similar provisions in another case. If the situation was as the Government contended, it might be wondered why it had been necessary to enact these provisions at all. The question whether in fact they implied subordination of the trade unions to the Government's policy might be explained by referring to other provisions in the decree. As had already been observed, approval was given to the formation of a trade union only after the National Institute of Labour and Social Welfare had reported, among other things, that the proposed trade union was justified in view of the economic and social interests of the community (section 18 (3) of Legislative Decree No. 23050). Section 9 of the decree stated unequivocally that " national trade unions shall subordinate their respective interests to the interests of the national economic system ". According to section 20, which falls under the head of " dissolution of national trade unions ", the approval of a union's rules shall be withdrawn if, among other things, " it fails to fulfil properly the duties which have been or may hereafter be imposed upon it "a matter the judgment of which appeared to fall within the discretion of the competent authorities. When the decree came into effect, the authorities were given the power under section 24 (1) thereof-again discretionary-where two industrial associations existed in one occupation in a given district, to give priority to one of them-the other having to dissolve after taking into account the past activities of the association and the affinity of its rules with the " spirit " of the decree. Taking all the foregoing into account, the conclusion that the provisions of section 15 (b) and (c) of the decree, as well as the other provisions cited, implied the formal recognition by the trade unions in their rules that they accept a situation in which their freedom of activity in the interests of their members was subordinate to the economic policy of the Government, was inescapable.
66. 48. In all these circumstances the Committee recommended the Governing Body to draw the attention of the Government to its view:
67. ......................................................................................................................................................
68. (i) that the limitation placed by section 15(e) of Legislative Decree No. 23050 on the right of trade unions to determine for themselves what proportion of the contributions received by their own union branches shall be paid to the parent unions is not compatible with the generally accepted principle that workers' organisations should have the right freely to draw up their Constitutions and rules and to organise their administration and activities;
69. (ii) that a situation in which the approval of trade union rules by the administrative authorities as a necessary condition for the legal existence of the organisation is accompanied by a condition that such authorities shall at the same time be satisfied, in their own discretion, that the pro posed organisation is justified in view of the economic and social interests of the community, which appears to be the position subsisting under the provisions of Legislative Decree No. 23050, is not compatible with the generally accepted principle that workers should have the right to establish organisations " without previous authorisation "
70. (iii) that for the reasons... indicated above, the provisions of section 15(b) and (c) of Legislative Decree No. 23050 are not compatible with the generally accepted principles that workers' organisations should have the right to draw up their Constitutions and rules, to organise their activities and to formulate their programmes, that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and that the law of the land should not be such as to impair or be so applied as to impair the effective enjoyment of this right.
71. ......................................................................................................................................................
72. 49. When the Committee re-examined this part of the case in 1968, it had before it a number of observations made by the Portuguese Government regarding this aspect of the complaint as well as a proposed text to replace the provisions of section 15, impugned by the Committee in its 65th Report.
73. 50. In its observations the Government stated that it had agreed in principle to a new text of section 15 of Legislative Decree No. 23050 recently submitted to it by the bodies responsible for putting into effect the conclusions of the National Labour Conferences. The Government went on to state that the proposed wording, in its view, satisfactorily met the observation made regarding the right of trade unions to determine the proportion of contributions which they should receive from their branches and freely to organise their administration and activities.
74. 51. As indicated by the Government, the text proposed in place of the above-quoted provisions of section 15 of Legislative Decree No. 23050 reads as follows:
75. The rules shall contain the regulations necessary for the organisation of the trade union and the achievement of its aims, and in particular those relating to:
76. (a) the name, headquarters and purposes of the organisation;
77. (b) the structure of the union, the method of appointing its governing bodies and their powers;
78. (c) the management of the union and its accounting arrangements;
79. (d) provisions governing admission of members, their rights and duties, and sanctions to apply in the event of failure to comply with the rules of the union;
80. (e) membership fees, contributions, procedure for their periodical review and times of payment;
81. (f) the establishment, operation and dissolution of local branches, women's branches, delegations and groups covering particular occupations or industries;
82. (g) the system of consultation with delegates;
83. (h) the organisation of occupational schools and services;
84. (i) cultural activities;
85. (j) dissolution of the union.
86. 52. The Committee noted that this new draft omitted the provisions of section 15 of Legislative Decree No. 23050 to which the Committee had drawn attention in its 65th Report and expressed the opinion that the deletion of these clauses could constitute an improvement over the previous system. It therefore recommended the Governing Body to express the hope that this view would be taken into account in the adoption of the final text to replace the existing section 15 of Legislative Decree No. 23050.
87. 3. Extent of Changes Introduced by the New Legislation
88. 53. The Committee now observes that Legislative Decree No. 49058 amends section 15 in conformity with the draft examined by the Committee in its 105th Report. On the other hand, section 9, which provides for the subordination of the interests of trade unions to the interests of the national economic system, and section 18 (3), which lays down the requirement that, in order to obtain the approval of its rules, a trade union must be justified in view of the social and economic interests of the community, still remain in force.
89. 4. Conclusions
90. 54. In these circumstances, the Committee recommends the Governing Body:
91. (a) to take note of the following changes effected in section 15 of Legislative Decree No. 23050;
92. (i) the deletion of subparagraph (e) requiring a trade union to limit the payments to the union by its branches to 50 per cent of the contributions received by such branches;
93. (ii) the deletion of subparagraphs (b) and (c), requiring the inclusion in trade union rules of a declaration of respect for the principles and purpose of the national community, an express renunciation of any and every form of activity, internal or external, which was contrary to the interests of the Portuguese nation, and a recognition of the fact that the trade union constituted a factor required for active co-operation with all the other factors of the national economic system, and consequently a repudiation of the class war;
94. (b) to draw the attention of the Government to its view that in order to comply with the generally accepted principles that workers' organisations should have the right to draw up their Constitutions and rules, to organise their activities and to formulate their programmes, that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and that the law of the land should not be such as to impair, or be so applied as to impair, the effective enjoyment of this right, it would be necessary to take the following further steps:
95. (i) to delete the provisions of section 9 of Legislative Decree No. 23050, in accordance with which " national trade unions shall subordinate their respective interests to the interests of the national economic system ";
96. (ii) to delete the provisions of section 18 (3) of Legislative Decree No. 23050, in accordance with which approval of trade union rules can be given only after the National Institute of Labour and Social Welfare has reported that the proposed trade union is " justified in view of the economic and social interests of the community".
97. (c) Restrictions on the Right of Trade Unions to Elect Their Representatives
98. 1. Allegations and Reply by the Government
99. 55. The complainants alleged that, according to Decree No. 25116 of 12 March 1935; the elected management committee of a trade union required the approval of the Minister of Corporations while Decree No. 32820 of 31 March 1942 empowered the Government to appoint management committees to replace the elected committees in the event of " serious and duly demonstrated reasons ".
100. 56. The Government in its reply admitted the existence of these provisions and gave the following reasons for them. The provision regarding approval of management committees was intended, firstly, to check the regularity of the electoral process and, secondly, to preclude domination of the trade unions by the Communist Party or other groups which proposed to attack the country's Constitutional principles or use force to reach their political objectives. The use of the power to appoint management committees, declared the Government, had been guided " by the wish to avoid irregularities in the administrative life of occupational organisations ", any such appointment being an exceptional measure and on a provisional basis, while any abuse of the power might be the subject of appeal.
101. 2. Conclusions of the Committee at Its Earlier Sessions
102. 57. The Committee in considering the Government's contentions pointed out that it had emphasised on several occasions the importance which it had always attached to the principle that workers' organisations should have the right to elect their representatives in full freedom. The question of the need for approval of the results of elections by an administrative authority had to be considered in the light of this principle. There existed in a number of countries legal provisions under which an official who was independent of the public authorities-such as a trade union registrar-might take action, subject to an appeal to the courts, if complaint was made or there were reasonable grounds for supposing that irregularities had taken place in a trade union election, contrary to law or to the rules of the organisation concerned; again, irregularities of this kind might give rise to an action in the ordinary courts. This, however, was quite a different situation from that which arose when the elections were stated, in general terms, to be valid only after having been approved by the administrative authorities.
103. 58. The Committee observed that according to the Government the purpose of Decree No. 25116 was to verify the regularity of the electoral process and to prevent domination of the trade unions by subversive political parties or groups, but it considered that in the absence of clear statutory criteria, the discretion of the authorities appeared to be unfettered.
104. 59. The second issue was that raised by the provision in Decree No. 32820 of 31 March 1942 empowering the Government to appoint management committees to replace elected committees in the event of " serious and duly demonstrated reasons ".
105. 60. The Committee considered that these provisions were extremely wide and appeared to leave it open to the administrative authorities to remove the management committee of a union whenever, in their discretion, they considered that they had " serious and duly demonstrated reasons "; they could in no way be compared with the provisions in certain countries which made it possible for the courts to declare an election invalid for specific reasons defined by law. This was an unfettered power vested in the public authorities. The Committee had already expressed the view that removal from trade union office by an administrative authority, even on the ground of illegal political activity, was a procedure which might give rise to abuses and might infringe the generally recognised right of organisations to elect their representatives in full freedom and to organise their administration and activities. In another case, the Committee had taken the view that the appointment by the government of the country concerned of persons to administer the General Confederation of Labour on the ground that such a measure was rendered necessary by the corrupt administration of the unions would have been " incompatible with freedom of association in a normal period ".
106. 61. In these circumstances the Committee recommended the Governing Body to draw the attention of the Government to the importance which it attached to the principle that workers' organisations should have the right to elect their representatives in full freedom and to organise their administration and activities, and to express the view that the provisions of Decree No. 25116 of 12 March 1935, subjecting the results of trade union elections to governmental approval, and of Decree No. 32820 of 31 March 1942, empowering the Government to appoint management committees to replace the elected committees of trade unions, were not compatible with this principle.
107. 62. When the Committee re-examined this part of the case in 1968 it did so in the light of a number of further observations forwarded by the Portuguese Government in its communication of 23 January 1968.
108. 63. The Government observed first of all that Legislative Decree No. 25116, mentioned by the complainants, which made it compulsory for trade union elections to be approved by the Minister of Corporations and Social Welfare, referred only briefly to this obligation in section 3. The Government pointed out that the provision which did declare ministerial approval of trade union elections to be necessary was section 15, subsection (5) of Legislative Decree No. 23050. The Government explained that the Third National Labour Conference was referring to this provision in its conclusion recommending the Government to change the established system " so as to make it more compatible with the autonomy and efficiency of organisations ".
109. 64. The Government stated that this recommendation had been followed in two drafts prepared for new legislation on trade unions which substantially modified the existing system, in particular by dispensing with compulsory ministerial approval of elections. Under these drafts examination of the results of elections would, as explained by the Government, be carried out in each union by a committee chosen by the general assembly of that union, with provision for appeal to a court of law against the committee's decisions.
110. 65. Even if, as the Government stated, the sole purpose of administrative intervention under the existing system was to verify the proper conduct of elections, the Committee considered that it would be decidedly preferable, as was now contemplated, for such verification to be carried out by bodies elected at trade unions' general assemblies, with the possibility of appeal to a court of law against the decisions of those bodies.
111. 66. In these circumstances the Committee recommended the Governing Body to express the hope that the proposed reform in regard to trade union elections would be carried out in the near future and that the view expressed above would be taken into account.
112. 67. With regard to the second question relating to the appointment by the Government of trade union management committees to replace elected committees in certain cases, the Government stated that studies had been carried out with a view to the amendment of Legislative Decree No. 32820 of 1942. In these studies it was proposed that the only cases in which trade unions could be managed by government-appointed committees " should be those where their management bodies have been suspended by judicial decision ".
113. 68. In this connection the Government quoted the draft of a new text for section 21 of Legislative Decree No. 23050, which would read as follows: " The members of the governing bodies shall be personally liable for the infringement of legislative provisions or union rules and they may be removed from office through proceedings brought before a labour court by any member of the union or by the public prosecutor "; under this draft " The judge may, upon application by the plaintiff or the public prosecutor, order the suspension of the governing bodies for the duration of the proceedings "; the draft further provided that " During such suspension, which shall not exceed the time required for new elections, the union shall be managed by a committee of not fewer than three and not more than five persons ". The Government further stated that the method of appointing the members of provisional committees was being studied.
114. 69. The Committee noted that no final decisions had yet been taken in this connection and therefore considered that it should wait before stating its findings.
115. 3. Extent of Changes Introduced by the New Legislation
116. 70. The Committee notes that Legislative Decree No. 49058 repeals Legislative Decree No. 25116, which formed the basis of the original complaint, and also effects a number of changes in section 15 of Legislative Decree No. 23050, which contained, in the Government's view, the real juridical basis of the system of ministerial approval of trade union elections.
117. 71. Thus, section 15 (5) of Legislative Decree No. 23050, which provided that " the elections of managing committees of national trade unions... shall not be valid until approved by the Under-Secretary of Corporations and Provident Institutions ", has been totally expunged from the new text of section 15. The system of direct ministerial control has been replaced under the new legislation by a system whereby the unions themselves ascertain whether or not candidates presenting themselves for election fulfil the various conditions of eligibility prescribed by law with the possibility of appeal to a labour tribunal against the decisions of the body appointed to verify the credentials of candidates.
118. 72. More precisely, the relevant subsections of the new section 15 provide as follows:
119. ......................................................................................................................................................
120. (5) The verification of the conditions of eligibility (as provided for in the preceding paragraphs) shall be effected by a committee chosen by the board of the general assembly from amongst the members not actually holding any official position in the union and whom the board has found to fulfil the conditions laid down in the aforesaid paragraphs. The composition of the committee shall be posted at the headquarters of the union and shall, within the space of ten days from its appointment, be communicated to the National Institute of Labour and Social Welfare for the purposes of subsection 8 of this section.
121. (6) The credentials committee whenever it considers it necessary or at the demand of the National Institute of Labour and Social Welfare shall require candidates to prove their eligibility through the presentation of documents executed by the appropriate authority. Any member or the National Institute of Labour and Social Welfare may put before the committee any documents which it considers relevant to proving the eligibility or ineligibility of any candidate.
122. (7) The credentials committee shall send to the National Institute of Labour and Social Welfare, within ten days of the date fixed for the election, a list of the candidates presenting themselves for election together with its observations in respect thereof.
123. (8) The decisions of the credentials committee and of the board of the general assembly concerning the composition of the former, as well as the results of the elections, may be challenged with suspensive effect by any member or by the National Institute of Labour and Social Welfare through an action brought before the competent labour court, in accordance with the provisions of the Procedural Code of Labour relative to the contesting of the decisions of general assemblies.
124. 73. As regards the question of the replacement of elected governing bodies by government appointees, Legislative Decree No. 49058 repeals Legislative Decree No. 32820 (the enactment which formed the basis of the original complaint) and also substitutes a new text for the original section 21 of Legislative Decree No. 23050.
125. 74. The new section 21 provides for the suspension and dismissal of members of the governing body of a union through an action brought before the appropriate labour tribunal by any member of the union or by the National Institute of Labour and Social Welfare. Such actions can be brought only on the ground that the member in question has violated the provisions of the revising legislation (Legislative Decree No. 49058), more particularly section 20 and section 10, which provides, inter alia, that trade unions shall carry on their activities at the national level while respecting the higher interests of the nation and the common good. Subsection 7 provides that when, as a result of suspensions or dismissals carried out in accordance with the foregoing paragraphs, the governing body of a union has been reduced to less than half its full complement of members, the union may be managed, until new elections have been held or the members of the management committee suspended in accordance with the terms of subsection 5 have been reinstated, by a management committee endowed with the functions of the different (union) organs and appointed by the National Institute of Labour and Social Welfare from amongst the members of the union. Subsection 8 provides that the committee appointed by the National Institute of Labour and Social Welfare shall organise new elections within a maximum period of six months and that where the committee has been appointed following suspensions carried out in accordance with the terms of subsection 5, time (i.e. the six-month period) begins to run from the moment half the members of the governing body have been removed from office by court decision.
126. 4. Conclusions
127. 75. In these circumstances the Committee recommends the Governing Body:
128. (a) to take note of the following changes introduced into the legislation:
129. (i) Legislative Decree No. 25116 has been repealed and section 15 (5) of Legislative Decree No. 23050 has been amended, the previous system of ministerial approval of the results of trade union elections being replaced by a system of verification of the conditions of eligibility of candidates by credentials committees elected at trade union general assemblies;
130. (ii) Legislative Decree No. 32820 has been repealed and section 21 of Legislative Decree No. 23050 has been amended, the previous system, which permitted the substitution of government appointees for elected governing bodies of trade unions, being replaced by another system, providing for the suspension and dismissal of governing bodies through court action;
131. (b) to draw the attention of the Government to the desirability of the following measures:
132. (i) in order to avoid the danger of serious limitations on the right of workers to elect their representatives in full freedom, plaints brought before labour courts by the National Institute of Labour and Social Welfare in accordance with subsection 8 of the new section 15 challenging the results of trade union elections should not-pending the final outcome of the judicial proceedings-have the effect of suspending the validity of such elections;
133. (ii) in order to avoid a similar danger with regard to the right of workers to elect their representatives in full freedom as well as to the right of trade unions to organise their administration and activities, it would be necessary to delete the provisions contained in the new section 10 enjoining respect for " the higher interests of the Nation and the common good ", on the basis of which labour courts are to decide whether the conduct of trade union officers warrants their dismissal, in view of the fact that these provisions are drafted in terms so wide that they fail to afford any precise criteria for judicial decision.
134. (d) Suspension and Dissolution of Trade Union Organisations by Administrative Authority
135. 1. Allegations and Reply by the Government
136. 76. The complainants alleged that any workers' organisation which deviated from the purpose for which it had been established, or failed to comply with its rules, or did not furnish the Government or other public bodies with information requested of it on matters within its competence, or promoted or assisted strikes or stoppages of work, etc., might be dissolved by withdrawal of its charter by simple decision of the competent authorities under section 20 of Legislative Decree No. 23050.
137. 77. The Government, in its reply, argued that, if the trade unions had to conform to certain principles laid down by law, they could not be allowed to evade these principles after their establishment. According to the Government, an appeal might be made to the courts against the Government's decision-one such appeal having been successfully made by a trade union-so that dissolution was undertaken, in the last resort, by process of law.
138. 2. Conclusions of the Committee at Its Earlier Sessions
139. 78. The full text of section 20 of Legislative Decree No. 23050 at the time the complaint was submitted to the Committee read as follows:
140. 20. The approval of the rules of a national trade union shall be withdrawn, without prejudice to the personal liability of the administrative bodies or to any other penalties which may be applicable, if the trade union deviates from the purposes for which it was established, if it fails to comply with its rules, if it fails to furnish the Government or other public bodies with information which it has been requested to give concerning matters within its competence, if it fails to fulfil properly the duties which have been or may hereafter be imposed upon it, or if it promotes or assists strikes or stoppages of work or contravenes the provisions of this Legislative Decree.
141. 79. When it examined the allegations the Committee indicated that in a considerable number of cases it had emphasised the importance which it attached to the generally accepted principle that workers' and employers' organisations should not be liable to be suspended or dissolved by administrative authority. The Committee also recalled that, in a case in which the question of trade union suspension was examined, it had concluded that, where suspension measures were issued by administrative authority, there might be a danger that they would appear to be arbitrary, even though they were issued only temporarily or for a limited time and as a preliminary to subsequent court action. The Committee considered that the power reserved to the Government under Portuguese legislation went much further than this as the only remedy open to the trade union was one of appeal to the courts against an administrative dissolution-a remedy of which a union might even find it impossible to avail itself at all in the event of an " immediate " dissolution by the administrative authorities in one of the cases covered by section 10 of Legislative Decree No. 23050 of 23 September 1933.
142. 80. In these circumstances the Committee recommended the Governing Body to draw the attention of the Government to the importance which it had always attached to the principle that workers' and employers' organisations should not be liable to be dissolved or suspended by administrative authority and to express the view that the provisions of sections 10 and 20 of Legislative Decree No. 23050 of 23 September 1933 were not compatible with this principle.
143. 81. When the Committee re-examined this allegation in 1968 it had before it a new draft of section 20 of Legislative Decree No. 23050, forwarded by the Government in its communication of 23 January 1968. The proposed text listed the possible grounds for the dissolution of a trade union, namely a decision to that effect by the general assembly of the union or a finding that the organisation has engaged in unlawful activities. The Government added that in the latter case the draft also provided that, during the duration of investigation, the court could decide to suspend the governing bodies. The Government further stated that the procedure for dissolution was being studied.
144. 82. Although the new system proposed appeared at first sight to constitute some improvement compared with the existing situation, the Committee noted that no final decisions had yet been taken in this connection and therefore considered that it should wait before stating its findings.
145. 3. Extent of Changes Introduced by the New Legislation
146. 83. Legislative Decree No. 49058 effects a number of changes in the provisions of Legislative Decree No. 23050 regarding the question of the suspension and dissolution of trade unions by administrative authority.
147. 84. The new text of section 10 contained in Legislative Decree No. 49058 no longer contains any provision on the " immediate dissolution " of trade unions by administrative authority.
148. 85. The new text of section 20 provides that a union may be dissolved either by a resolution adopted by its general assembly or by the decision of the Corporative Council whenever the organisation deviates from the purposes for which it was established or is unable to comply with its legal obligations. Subsection 1 provides that the resolution of the general assembly may be contested and that against the decision of the Corporative Council appeal shall lie to the Supreme Administrative Tribunal. Subsection 2 provides that the dissolution of a national trade union shall involve the liquidation and distribution of its assets. Subsection 3 provides that, if the suspension of the resolution which is being contested or of the putting into effect of the decision appealed against is either not asked for, or (if asked for) is refused, the judge of the labour tribunal in charge of the liquidation proceedings shall restrict the activities of the liquidators to the conservation of the union's assets until the final judgment is delivered.
149. 86. The Committee notes from these provisions that under the present legislation the situation seems to be the following. A trade union may be dissolved by decision either of its general assembly or of the Corporative Council. Against the decision of the latter body, which is a state agency, an appeal may be lodged with the Supreme Administrative Tribunal. Pending this procedure, a liquidator is appointed. A request may be made for the suspension of the implementation of the decision under appeal. If this request either is not made or is refused, the normal activities of the trade union are suspended. It would therefore appear that under the present legislation the adoption by a non-judicial authority (the Corporative Council) of measures amounting to the suspension of trade unions is still possible.
150. 4. Conclusions
151. 87. In these circumstances the Committee recommends the Governing Body:
152. (a) to take note of the changes introduced into section 10 of Legislative Decree No. 23050, whereby the provisions on " immediate dissolution " of trade unions by administrative authority have been removed;
153. (b) to draw the attention of the Government to its view that in order to secure fuller compliance with the principle that trade unions should not be dissolved or suspended by administrative authority it would be necessary to amend the new section 20 of Legislative Decree No. 23050 so that a decision by a non-judicial authority such as the Corporative Council to dissolve a trade union should not become effective until the statutory period has expired without an appeal being lodged against this decision or until it has been confirmed by a decision of the court.
154. (e) Compulsory Trade Union Contributions
155. 1. Allegations and Reply by the Government
156. 88. The complainants alleged that Decree No. 29931 of 15 September 1939 entitled the Minister of Corporations to make the payment of union contributions compulsory for certain categories of workers even where they were not union members.
157. 89. The Government declared that it was general practice for workers belonging to an organised occupation, but not themselves organised, to be obliged to contribute to the expenses of the union to the same extent as the members, as they all benefited from the activities of the union and collective agreements applied to the whole occupation; contributions were received direct by the unions without intervention by official agencies.
158. 2. Conclusions of the Committee at Its Earlier Sessions
159. 90. When it first considered these allegations', the Committee recalled that it had had to examine the question of the automatic deduction of union contributions as a result of legislation in an earlier case. While expressing the general view that the various systems of subsidising workers' organisations have very different consequences according to the form which they assume, the Committee had not formulated definitive conclusions on the matter because of two factors which subsisted in that case-they did not exist in the present case namely that workers could nevertheless demand to be exempted from paying the contributions and that, in any case, the system was about to be changed so as to leave such matters to be determined by collective bargaining.
160. 91. The Committee had also been called upon to examine cases in which the deduction of union dues or other forms of union security arrangements had been instituted not by virtue of legislation but by means of collective agreements or by established practice subsisting between the two parties. In those cases, the Committee had declined to entertain the allegations made, basing its reasoning on the statement in the report of the Committee on Industrial Relations set up by the International Labour Conference in 1949 that the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), could in no way be interpreted as authorising or prohibiting union security arrangements" such questions being matters for regulation in accordance with national practice.
161. 92. In fact, there were many examples of countries in which the law prohibited certain forms of union security arrangements and many others in which the law permitted such arrangements, either formally or by reason of the fact that no legislation on the matter existed at all. But the position was very different where the law imposed union security either in the form of making union membership compulsory or by the making of union contributions payable in such circumstances as to amount to the same thing.
162. 93. The ILO Committee of Experts on the Application of Conventions and Recommendations had regarded a situation in which the individual was denied any possibility of choice between different organisations, by reason of the fact that legislation permitted the existence of only one organisation in the sphere in which he carried on his occupation, as being incompatible with the principles embodied in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), because such provisions establish, by legislation, a trade union monopoly which must be distinguished both from union security clauses and practices and from situations in which trade unions voluntarily form a single federation or Confederation. Such a trade union monopoly existed by virtue of legislation in Portugal (see paragraphs 21 to 34 above). In these circumstances, it would seem that a legal obligation to pay contributions to that monopoly trade union, whether workers were members or not, represented a further consecration and strengthening of that monopoly.
163. 94. In these circumstances the Committee recommended the Governing Body to draw the attention of the Government to its view that the power given to the competent minister under Legislative Decree No. 29931 of 15 September 1939 to impose an obligation on all the workers in the category concerned to pay contributions to the single national trade union which was permitted to be formed in any one occupation in a given area was not compatible with the principle that workers should have the right to join organisations " of their own choosing ".
164. 95. When the Committee re-examined this aspect of the case in its 105th Report, it had before it a number of further observations forwarded by the Government in its communication of 23 January 1968.
165. 96. In its observations the Government pointed out that section 2 of Legislative Decree No. 29931, which empowered the Ministry for Corporations and Social Welfare to make trade union contributions compulsory for certain categories of workers, stipulated that this obligation may be prescribed only " when the circumstances justify it ". The Government stated that in almost all cases the use of this power had depended on the prior conclusion of collective agreements and that the governmental decision " has been no more than the legal form that was required to give effect to agreed stipulations ".
166. 97. The Government added that this policy had made it possible to keep the dues payable by members of a large number of unions at a very low level while ensuring that these unions enjoyed the income and independence needed in order to perform their functions without any form of subsidy.
167. 98. In any event the Government did not see in what way compulsory contributions were an infringement of the principle of freedom of association, since the obligation to contribute was never accompanied by an obligation to join a union, which would have been inconsistent with that principle. The Government explained that it would consider it improper for a union which defended the interests of all the workers, for example in establishing for the benefit of all a collective agreement providing for better remuneration and conditions of work, to be maintained by the contributions of some only. " If all are to enjoy the benefits, then all should share the cost."
168. 99. Not wishing to state its views on the validity of the argument put forward by the Government in the preceding paragraph, the Committee pointed out that, in countries with several unions, a compulsory contribution required by law might assume the character of a tax if it were to benefit a particular union which would thus be favoured over others. In certain circumstances this would be equivalent to infringement of the principles of freedom of association. Of course, where there was a single trade union-as was the case in Portugal, where the single national trade union authorised for each occupational category and district enjoyed the privilege of representing all the wage earners, whether members of the union or not, and of entering into collective agreements on their behalf-compulsory contributions would obviously appear to be a logical corollary of the system. The Committee had, however, considered that this system was not compatible with the principles of freedom of association.
169. 100. What the Committee had wanted to emphasise in its examination of this aspect of the case in its 65th Report was that the legal obligation to contribute to a trade union monopoly, irrespective of membership, represented further recognition and strengthening of the monopoly, which by definition corresponded to a system contrary to the principle that workers should have the right to constitute and join the organisations of their own choosing.
170. 101. Since the Government's explanation did not reveal any change in the situation as analysed in the Committee's 65th Report, the Committee recommended the Governing Body to confirm the conclusions it reached at the time regarding this point, as quoted in paragraph 94 above.
171. 3. Extent of Changes Introduced by the New Legislation
172. 102. Regarding this aspect of the case the Committee notes first of all that Legislative Decree No. 49058 does not effect any changes in Decree No. 29931 which empowers the Minister of Corporations to make the payment of union contributions compulsory for certain categories of workers, even where they are not union members. It does, however, effect certain changes in the provisions of Legislative Decree No. 23050 relating to the ambit and scope of national trade unions with the result that under the new legislation a certain possibility may arise of workers having the choice between two or more unions in the same district. However, as the Committee has already pointed out in its examination of the allegation relating to restrictions on the number of trade unions that may be formed, the old system of one national union for each occupation in each district can be changed only with the approval of a government agency (in this case the National Institute of Labour and Social Welfare) with the result that government control over the trade unions is still maintained in this connection. Thus, should this government agency refuse to authorise the existence of a new trade union, the situation with regard to compulsory contributions would be the same as under the system hitherto in force.
173. 4. Conclusions
174. 103. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to its view that in order to secure fuller compliance with the principle that workers should have the right to constitute and join organisations of their own choosing, it would be necessary to amend Legislative Decree No. 29931 of 15 September 1939, removing the obligation imposed on all the workers in the category concerned to pay contributions to the single national trade union which it was permitted to form in any one occupation in a given area.
175. (f) Supervision of Collective Bargaining and Approval of Collective Agreements by the Public Authorities
176. 1. Allegations and Reply by the Government
177. 104. It was alleged that delegates of the National Institute of Labour and Social Welfare " co-operate in the preparation of collective agreements by supervising the negotiations and drawing up the terms " and that the Institute receives " the draft collective agreement for purposes of revision ", the agreement finally being subject to the approval of the Minister of Corporations (Legislative Decree No. 23048 of 23 September 1933 1). The complainants considered that these provisions were contrary to Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
178. 105. The Government stated that workers' and employers' organisations enjoyed the greatest freedom in negotiating collective agreements and that the intervention of the Institute was aimed at facilitating negotiations, being of an explanatory and conciliatory character, particularly as regards sectors in which the trade unions were less highly developed, and seeking especially to induce employers' organisations to establish better conditions of work. Ministerial approval, declared the Government, "is aimed merely at safeguarding the interests of the national economy, which must evidently condition freedom of association ".
179. 2. Conclusions of the Committee at Its Earlier Sessions
180. 106. When the Committee first examined this aspect of the case z it recalled that in a number of other cases it had emphasised the importance that it had always attached to the fact that the right to bargain freely with employers with respect to conditions of work constituted an essential element in freedom of association, and to the principle that trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.
181. 107. The allegations raised two issues: intervention in the bargaining process and the need for governmental approval of agreements.
182. 108. With regard to the first issue, it was necessary to consider the relevant sections of Legislative Decree No. 36173 of 6 March 1947 respecting collective agreements.
183. 109. Sections 25 to 28 of this decree read as follows:
184. (25) The managements of the corporative bodies shall be responsible for negotiating and signing the collective agreements to which the said bodies are parties.
185. Sole subsection. In the case of trade unions, the negotiation and signature of agreements shall be subject to approval by the appropriate general council or, in default thereof, by the general meeting.
186. (26) The social welfare services and the National Institute of Labour and Social Welfare shall give assistance when collective agreements are made, guiding the negotiations and the drafting of terms.
187. (27) The drafts of all agreements shall be sent to the National Institute of Labour and Social Welfare in triplicate on unstamped paper for inspection by the Second Division, which shall consult the First and Third Divisions of the Institute on matters relating to the corporative organisation and provident institutions respectively.
188. (28) The original of the final text of all agreements shall be written on stamped paper and sent, together with one copy on unstamped paper, to the National Institute of Labour and Social Welfare after signature by the parties.
189. 110. It was to be observed that section 26 of the decree provides that the National Institute " shall give assistance when collective agreements are made, guiding the negotiations and the drafting of terms ", while section 27 required the drafts of all agreements to be sent to the Institute " for inspection ". No provision appeared to limit intervention by the Institute to cases in which its mediation was requested by the parties in the negotiation of agreements or to cases in which an industrial dispute has arisen; section 26 appeared to make its intervention mandatory in all collective negotiations. The Government maintained that its intervention was aimed only at facilitating negotiations and conciliating the parties. It seemed evident, however, that, in giving its mandatory assistance in " guiding the negotiations and the drafting of terms " the Institute was obliged to ensure that the provisions of Legislative Decree No. 36173 and other relevant decrees were observed in the negotiations the object of the Institute, according to section 2 of Legislative Decree No. 23053 of 23 September 1933 which established it, " shall be to ensure the enforcement of ... laws of a social character ... in accordance with the spirit of the political, economic and social renewal of the Portuguese nation ". The legal provisions of a social character, the enforcement of which the Institute shall be obliged to ensure, therefore, appeared to include section 8 (a) of Legislative Decree No. 36173, which provides that " no collective agreement shall contain any clause in any way conflicting with the right reserved to the State of co-ordinating and regulating the economic life of the Nation from above and of supervising the observance of social legislation ", section 32 of Legislative Decree No. 23048 of 23 September 1933 to promulgate the Labour Code, which provides that collective agreements " shall " be concluded by the trade unions and employers' associations and " shall be the embodiment of the solidarity of the various factors in each branch of economic activity, subordinating the interests of the parties to the superior exigencies of the national economic system ", and section 5 of Legislative Decree No. 23049 of 23 September 1933, which provides that in all matters connected with the regulation of employment and wages the compulsory organisations of employers " shall be directly subordinate to the Under-Secretary of Corporations and Provident Institutions ".
190. 111. It therefore appeared that the intervention of the National Institute of Labour and Social Welfare was essentially intended to ensure that the negotiating parties subordinate their interests to the national economic policy pursued by the Government, irrespective of whether they agree with that policy or not, a situation which was not compatible with the generally accepted principles that workers' and employers' organisations should enjoy the right freely to organise their activities and to formulate their programmes, that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and that the law of the land should not be such as to impair or be so applied as to impair the enjoyment of such right.
191. 112. Secondly, it was alleged that the final agreement was not effective until it had been approved by the Minister of Corporations, an approval which, according to the Government, " is merely aimed at safeguarding the higher interests of the economy, which must evidently condition freedom of negotiation ".
192. 113. Section 29 of Decree No. 36173 provides that " no agreement shall take effect until it has been confirmed by the Under-Secretary of State for Corporations and Provident Institutions ".
193. 114. The Committee had drawn attention to one case t in which it had observed that the requirement of previous approval by the governmental authorities before an agreement was valid appeared to be contrary to the whole system of voluntary negotiation envisaged in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and implied a possibility of interference by the public authorities of a nature incompatible with the principle that workers' and employers' organisations should have the right to organise their activities and formulate their programmes and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. In another case the Committee, noting that the legislation required collective agreements, once they were concluded, to be submitted to the competent authorities for their approval and provided that agreements did not enter into force if they were not approved, recommended the Governing Body to draw attention to the incompatibility of such a requirement in normal circumstances with the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations with a view to the regulation of terms and conditions of employment by means of collective agreements.
194. 115. In these circumstances the Committee recommended the Governing Body:
195. ......................................................................................................................................................
196. (a) to draw the attention of the Government to the importance which it has always attached to the principles:
197. (i) that workers' and employers' organisations should have the right to organise their activities and formulate their programmes, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof;
198. (ii) that the right of workers' organisations to bargain freely with employers and employers' organisations with respect to conditions of work constitutes an essential element in freedom of association;
199. (iii) that the public authorities should refrain from any interference which would restrict or impede the lawful exercise of the right to trade unions, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent;
200. (iv) that measures appropriate to national conditions should be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;
201. (b) to draw the attention of the Government to the Governing Body's view that the legislation providing for the intervention of the National Institute of Labour and Social Welfare in collective negotiations and requiring collective agreements to be submitted to the public authorities for approval was not compatible with the principles expressed in (i), (ii), (iii) and (iv) above.
202. ......................................................................................................................................................
203. 116. When the Committee re-examined this part of the case in its 105th Report, it had before it a number of observations forwarded by the Government in its communication of 23 January 1968.
204. 117. The Government stated that, in view of its ratification of Convention No. 98, the standards laid down in that instrument had the force of law for Portugal. " In these circumstances ", it added, " ratification would have the effect of repealing any previous legislative provisions which were inconsistent with those standards."
205. 118. The Government also stated that Portuguese legislation had in fact been profoundly modified even before ratification of the Convention " in order to prevent any conflict with the international instrument ".
206. 119. The Government mentioned a series of enactments from which it appeared that " the application and improvement of collective contracts and agreements, as well as their interpretation and integration " came within the exclusive competence of the " corporative committees ", which were tripartite bodies established by the contracts themselves and in which there had to be equal numbers of workers' and employers' representatives.
207. 120. The Government referred, however, to the presence on these committees of a state representative, namely a delegate of the National Institute of Labour and Social Welfare, who was responsible for guiding the drafting of collective agreements. But the Government added that " this technical guidance, which is of a purely arbitral and auxiliary character, cannot be imposed on any agreement reached by the contracting parties ".
208. 121. It appeared from the Government's explanations and the enactments it mentioned that a certain degree of liberalisation had taken place in comparison with the system existing at the time when the complaint was lodged and that government intervention in regard to collective bargaining was less direct than it had been previously. The Committee noted, however, that such intervention continued, and it expressed the view that " guidance " by a representative of the public authorities in the drafting of collective agreements did not appear consistent with the spirit of Convention No. 98, unless it consisted exclusively in technical aid. This opinion had to be put in even stronger terms if reference was made to Legislative Decree No. 43179 of 23 September 1960, mentioned in the Government's observations, which required not only that each corporative committee should include a representative of the National Institute of Labour and Social Welfare but also that this representative should be the chairman of the committee (sections 1 and 26).
209. 122. The Committee therefore recommended the Governing Body to draw the Government's attention to the fact that intervention by a representative of the public authorities in the drafting of collective agreements, as provided for under Portuguese legislation, was inconsistent with the spirit of Convention No. 98, Article 4 of which provides for the full development and utilisation of machinery for voluntary negotiation between employers and workers, and to draw the above to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
210. 123. With regard to the approval of collective agreements, the Government stated that it believed this to be essential " in view of the need for registration and publication ". " In conclusion ", the Government stated, " it must be stressed that the Ministry, when giving its approval, cannot replace or modify provisions on which the parties have freely agreed."
211. 124. The Committee took note of the Government's indications, from which it appeared that the approval of collective agreements was nothing more than a mere formality consisting of their " registration ". Before expressing its view on this aspect of the case, however, the Committee wished to know whether approval could be refused, and, if so, in what circumstances and for what reasons, and whether there was any possibility of appeal against refusal of approval.
212. 3. Extent of Changes Introduced by the New Legislation
213. 125. The Committee notes that, although Legislative Decree No. 49058 does not deal with the questions previously examined, Legislative Decree No. 49212 effects certain amendments in the legislation on collective bargaining and agreements. This decree repeals Legislative Decree No. 36173 but does not mention Decrees Nos. 23048, 23049, 23053 or 43179, all of which are referred to above.
214. 126. As regards the aspects considered, the new legislation makes the following provisions. Firstly, with regard to the intervention of a representative of the public authorities in the drafting of collective agreements, section 14 of Legislative Decree No. 49212 provides that, failing agreement between the parties, the corporation shall summon the latter to a conciliation meeting, requesting the collaboration, if this is deemed desirable, of the National Institute of Labour and Social Welfare, section 25 provides that this Institute may, during the drafting or amendment of a collective agreement, provide the parties concerned with the necessary co-operation as regards, inter alia, legal advice and the study and analysis of statistics and indices of changes in the cost of living.
215. 127. Secondly, as regards the approval of collective agreements, section 24 provides first of all that the drafts of such agreements, as well as applications for permission to adhere to agreements, draft amendments, the minutes of conciliation meetings, and arbitration awards shall be submitted to the National Institute of Labour and Social Welfare; it then provides that collective agreements, amendments, etc., shall take effect only if approved by the Minister of Corporations and Social Welfare. In connection with these provisions, mention should also be made of section 3, which provides that no collective agreement or arbitration award shall in any way undermine the right reserved to the State of co-ordinating and regulating the economic life of the nation from above, of supervising the observance of social legislation, and of establishing regulations of any kind in respect of economic activities.
216. 128. The Committee notes that the new legislation appears to have lessened considerably the intervention by the National Institute of Labour and Social Welfare in the discussion stage of collective agreements, restricting its activities in particular to providing legal and technical advice to the parties.
217. 129. On the other hand, as concerns the approval of collective agreements, the Committee notes that the provisions of Legislative Decree No. 49212 do not appear to have changed the previous situation, described above in paragraphs 110 and 113. In fact the text of section 3 of this decree is essentially the same as that of section 8 of Legislative Decree No. 36173, whilst the text of section 24 of the new decree is the same, as regards the coming into effect of collective agreements, as section 29 of the repealed decree. Furthermore, the provisions of Decrees Nos. 23053, 23048 and 23049, referred to in paragraph 110, do not appear to have been amended.
218. 4. Conclusions
219. 130. In these circumstances the Committee recommends the Governing Body:
220. (a) to note Legislative Decree No. 49212, whereby the mandatory intervention of the National Institute of Labour and Social Welfare in the drafting of collective agreements, the guidance of negotiations and the drafting of terms is replaced by optional intervention at the request of the corporation with a view, in particular, to providing the parties with legal and technical advice;
221. (b) to draw the Government's attention to the fact that Legislative Decree No. 49212 has not changed the previous situation as regards the requirement of ministerial approval in order that a collective agreement may come into force, and to request the Government once again to state whether the competent minister may refuse this approval and, if so, in what circumstances and on what grounds, and whether there is any possibility of appealing against refusal to approve a collective agreement.
222. (g) Restrictions on the Right of Trade Unions to Affiliate with International Organisations of Workers
223. 1. Allegations and Reply by the Government
224. 131. The complainants alleged that a trade union might not become a member of any organisation of an international character or appoint representatives to any international congress or demonstration without the permission of the Government, on pain of immediate dissolution and of forfeiture by the members of its management committee of their civil rights for a period of two years.
225. 132. The Government argued that it would be a contradiction to prevent anti-national infiltration by subversive political parties or groups at the national level while permitting international affiliations which could lead to similar results, and declared that the requirement imposed is not a prohibition but a restriction, such as existed in a number of other countries.
226. 2. Conclusions of the Committee at Its Earlier Sessions
227. 133. Section 10 of Legislative Decree No. 23050 provides, inter alia, that it shall not be lawful for national trade unions to become members of any organisation of an international character or to appoint representatives to any international congress or demonstration without the permission of the Government.
228. 134. When examining this aspect of the case the Committee recalled that on a number of occasions the Committee had emphasised the importance which it attached to the right of workers' and employers' organisations to affiliate freely with international organisations of workers and employers, a right which is embodied in Article 5 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In one case the issue raised was precisely that of the requirement, as in the present case, of government authorisation for the affiliation of workers' organisations with international organisations of workers. In that case, the Governing Body, on the recommendation of the Committee, had suggested to the Government that it should re-examine certain aspects of its legislation, including the provisions relating to the international affiliation of organisations, in the light of the above-mentioned Convention, with a view to ratifying the Convention. In another case the Committee had emphasised that national legislation should not be applied in such a manner as to contravene the principle that trade union organisations should be able to affiliate freely with international organisations of workers-a right which the Committee has stated to be " almost universally recognised ".
229. 135. In these circumstances the Committee recommended the Governing Body to draw the attention of the Government to the importance which it attached to the generally accepted principle that trade union organisations should have the right to affiliate with international organisations of workers, and to express the view that the requirement of governmental permission for such international affiliation was not compatible with this principle.
230. 136. When the Committee re-examined this part of the case in its 105th Report, it had before it a number of observations forwarded by the Government in its communication of 23 January 1968.
231. 137. The Government, in its observations, did not refer to the question of the affiliation of unions with international occupational organisations, mentioning only representation " in international organisations or congresses ". It stated that such representation was not prohibited but must be authorised by the Government.
232. 138. Referring to the most recent national legislation, the Government stated: " Considering that the structure of Portuguese occupational organisations affords more effective international representation when this is provided through the higher bodies to which trade unions belong, the legislation expressly provides that such representation shall be effected by the bodies in question (corporations), and in such cases no reference is made to any prior authorisation ".
233. 139. There was nothing in the Government's observations to suggest that the situation with regard to the affiliation of trade unions with international workers' organisations or participation in such organisations' work and meetings was now in any way different from what was noted in the Committee's 65th Report.
234. 140. In these circumstances the Committee recommended the Governing Body to confirm the conclusions quoted above.
235. 3. Extent of Changes Introduced by the New Legislation
236. 141. The Committee notes that Legislative Decree No. 49058 replaces section 10 of Legislative Decree No. 23050 with a new text, which reads as follows:
237. 10. Trade unions shall carry on their activities at the national level while respecting the higher interests of the Nation, the common good, the provisions of the law and the function which they are called upon to fulfil in the corporative organisation.
238. Sole subsection. The affiliation of national trade unions with international organisations embracing the same class of worker or their representation in congresses or other international gatherings shall be assured either directly or through the intermediary of the higher corporative organs to which they belong, whichever shall be considered the most appropriate, and subject to the approval, of the National Institute of Labour and Social Welfare.
239. 142. The Committee observes that this new text, apart from providing that international affiliation or representation of trade unions may be effected either directly or through the intermediary of higher corporative bodies, does not change the substance of the earlier legislation, whereby trade unions must still first obtain the approval of a government organ (in this case the National Institute of Labour and Social Welfare) before they can lawfully affiliate with international organisations or take part in international demonstrations or congresses.
240. 4. Conclusions
241. 143. In these circumstances, the Committee recommends the Governing Body to bring the attention of the Government to its view that in order to give full effect to the generally accepted principle that trade union organisations should have the right to affiliate with international organisations of workers it would be necessary to delete the provisions of the new section 10 subjecting the exercise of this right to the discretionary authority of the National Institute of Labour and Social Welfare.
242. (h) Prohibition of Strikes under Portuguese Legislation
243. 1. Allegations and Reply by the Government
244. 144. The complainants alleged that Decree No. 23870 of 18 May 1934 prohibited strikes and lockouts and specified penalties for persons who were convicted of these " offences ". Between October 1959 and February 1960, declared the complainants, 48 workers had been convicted of " strike offences " and condemned to terms of imprisonment of from five months to five years, and on 7 April 1961, 14 workers had been sentenced to three months' imprisonment, with forfeiture of their political rights for three years on the grounds that they had organised a strike in the pyrites mines at Aljustrel in the province of Alentejo; after judgment these 14 workers had been released because they had already been in prison for one year.
245. 145. The Government stated that it was not aware of any directive with respect to strikes laid down in the Conventions relating to freedom of association and that Portuguese legislation provided peaceful machinery for the settlement of labour disputes which had been consistently utilised. In conclusion, the Government declared that the " issue of additional provisions, calculated to afford still more efficient safeguards to the workers in their campaign for social betterment, is now under examination ".
246. 2. Conclusions of the Committee at Its Earlier Sessions
247. 146. When it examined this allegation in its 65th Report the Committee indicated that it had always applied the principle that allegations relating to the exercise of the right to strike were not outside its competence so far as they affected the exercise of trade union rights, and that it had noted on a number of occasions that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests was generally recognised. In this connection the Committee had emphasised the importance which it attached, where strikes were prohibited or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests, and had pointed out that the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned could take part at every stage.
248. 147. In the present case the situation was that strikes and lockouts were entirely prohibited and made the subject of penalties by Legislative Decree No. 23870 of 18 May 1934.8 Thus, participation in a strike was punishable by a fine of from 50 to 1,000 escudos or imprisonment for not more than 12 months; if the act was considered to have been committed for political purposes, the offender was liable to transportation for from 3 to 8 years and a fine not exceeding 2,000 escudos. If the strike was intended to influence the decisions of the public authorities, the penalty was imprisonment for from 2 to 4 years. A second offence, in any case, would carry the maximum penalty.
249. 148. Labour courts had been set up by Legislative Decree No. 24363 of 15 August 1934 and all labour disputes were compulsorily submitted to the labour courts, which were entrusted with conciliation and arbitration functions. Their decisions were binding and enforceable, but appeals lay to the Supreme Administrative Tribunal.
250. 149. The Committee observed, however, that the Government stated that the issue of additional provisions to safeguard further the position of the workers was now under examination. The Committee felt, therefore, that, instead of examining in substance the present procedure for the settlement of disputes in Portugal, it would be more appropriate to await the outcome of this examination, and to recommend the Governing Body at this juncture to draw the attention of the Government to the principles which it considered should be borne in mind in this connection.
251. 150. In these circumstances the Committee recommended the Governing Body:
252. ......................................................................................................................................................
253. (a) to take note, with respect to the machinery for the settlement of disputes provided for under Portuguese legislation, of the Government's statement that " the issue of additional provisions, calculated to afford still more efficient safeguards to the workers in their campaign for social betterment, is now under examination ",
254. (b) to draw the attention of the Government to the fact that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised, and to the importance which the Governing Body attaches to the principles that, where strikes by workers are restricted or prohibited, such restriction or prohibition should be accompanied by the provision of conciliation procedures and of independent and impartial arbitration machinery;
255. (c) to express the hope that the Government will have full regard to this principle in the course of the examination of the situation which it states is now being made with a view to the issue of additional provisions relating to the machinery for the settlement of disputes, and to request the Government to be good enough to keep the Governing Body informed of further developments in this connection.
256. ......................................................................................................................................................
257. 151. When the Committee re-examined this part of the case in its 105th Report, it had before it a number of observations forwarded by the Government in its communication of 23 January 1968.
258. 152. Concerning this aspect of the case the Government began by stating that it was, entirely in favour of the principle expressed in the second part of paragraph (b) of the conclusions quoted above. The Government continued by stating that under new provisions it was the responsibility of the councils of corporations (or at least of some of them) " to deal with matters of general interest to the particular industry and its workers within the terms of reference of the corporation giving it competence in regard to conciliation, where no other bodies have been set up ".
259. 153. The Government considered that this system constituted a rapid procedure for the settlement of collective disputes, " providing for the participation of the persons concerned ". It acknowledged, however, that this system could still be improved and mentioned that studies were proceeding on the possibility of allotting the functions of conciliation to other corporative organs.
260. 154. The Government stated that at present legislation enabled the workers and the undertakings, if they so desired, to ask a jointly constituted corporative organ " for any necessary conciliation and arbitration action ".
261. 155. The Government added that it had endeavoured, by adopting advanced social legislation, to eliminate the causes of potential collective disputes wherever it could. It stated that in recent years no disputes have arisen which would be classified as " collective disputes " and which could have required recourse to " measures other than the normal arrangements for conciliation ".
262. 156. The Committee recommended the Governing Body to take note of the information supplied by the Government with regard to methods of settling collective disputes and to request the Government to be good enough to keep it informed of any development in the situation.
263. 3. Extent of the Changes Introduced by the New Legislation
264. 157. The Committee notes that Legislative Decree No. 49058 does not deal with this aspect of the case. However, Legislative Decree No. 49212 provides for compulsory arbitration if, where collective bargaining or conciliation proceedings have broken down, one of the parties so demands.
265. 4. Conclusions
266. 158. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government once again to its view that the right of workers and their organisations to strike is a legitimate means of defending their occupational interests and that it would therefore be necessary to amend the present legislation, in particular Legislative Decree No. 23870, which prohibits strikes altogether.
267. (i) The Right of Association of Indigenous Workers in the Portuguese " Overseas Provinces "
268. 1. Allegations and Reply by the Government
269. 159. The complaint stated that the metropolitan trade union legislation applied to the overseas territories, but only to persons of European descent and assimilados. The complainants declared that the official census figures published in 1958 showed that in Angola, Mozambique and the other " overseas provinces " there were 131,022 Europeans, 96,207 assimilados and 10,690,451 others. Decree No. 39660 of 20 May 1954 stated, according to the complainants, that trade union membership was not open to the " unassimilated " population, that is, over 99 per cent of the non-European population.
270. 160. The Government declared in its reply that the Native Statute having been repealed, " the whole Portuguese population was subject without distinction to the same political law, which is equal for all without distinction of race, religion or predominant cultural condition ".
271. 2. Conclusions of the Committee at Its Earlier Sessions
272. 161. When the Committee first examined this aspect of the case it noted that according to Decree No. 39660 of 20 May 1954 respecting freedom of association, the formation of associations may, subject to the conditions laid down in the decree and to their rules being approved by the public authorities, be promoted by " all citizens in possession of their civic and political rights ". This decree was still in force; the Native Statute which had been repealed was Legislative Decree No. 39666-also dated 20 May 1954. The Committee considered that the legal position was not clear and therefore recommended the Governing Body to request the Government to explain to what extent, following the repeal of the Native Statute, the indigenous populations of the " overseas provinces " enjoy the right to establish and join trade unions in law and whether they can exercise this right in practice.
273. 162. When the case was again examined by the Committee at its session in May 1963, it had before it a communication from the Government dated 26 March 1963, in which it was stated that, as a result of the repeal of the Native Statute on 6 September 1961, the social legislation previously applicable only to workers other than those classified as natives had become applicable ipso jure to all workers in the " overseas provinces ". The Government drew attention also to the fact that " natives " and " indigenous persons " were not synonymous, the Native Statute having been applied only to protect those whose status implied a situation of reduced responsibility, and that, in practice, even before its repeal, the Statute had not been applied in the case of many indigenous persons whose cultural and social level enabled Portuguese public and private law to be fully applied to them. The Rural Labour Code of 27 April 1962 applied to employment relations without distinction as to sex, race, origin or social condition. The Government declared further that earlier legislative provisions excluding " natives " from the application of Legislative Decree No. 23050 respecting national trade unions no longer had any meaning, and that the basic provision concerning freedom of association contained in article 8, paragraph 14, of the Portuguese Constitution and the provisions of Legislative Decree No. 23050 respecting national trade unions were now in force for all workers in the " overseas provinces ", whatever their origin, race or social condition. The Government concluded that it was thus obvious that the right enjoyed by all inhabitants of the " overseas provinces " to establish trade union organisations legally and to join them can be effectively exercised in practice.
274. 163. The Governing Body, on the recommendation of the Committee, took note of this statement made by the Government.
275. 3. Extent to Which the Trade Union Legislation Is Applied in the Portuguese " Overseas Provinces "
276. 164. The Committee wishes to recall at this stage that the position of all the workers in the Portuguese " overseas provinces " with regard to the trade union legislation, as explained above on the basis of the information supplied by the Government, was confirmed by the Commission appointed under article 26 of the Constitution of the ILO to examine the complaint filed against the Government of Portugal concerning the observance of the Abolition of Forced Labour Convention, 1957 (No. 105), when it indicated that " there is no element of racial discrimination in the law relating to trade unions or in their formal structure ".
277. 165. It follows from this situation under the law that the changes effected in the legislation on trade unions by Legislative Decree No. 49058 and Legislative Decree No. 49212 also concern all the workers in the " overseas provinces " and that therefore the conclusions of the Committee regarding the allegations enumerated above under headings (a) to (h) are equally applicable to workers' organisations in these territories.
278. 166. However, while the legislation on trade unions is now the same in metropolitan Portugal and its " overseas provinces ", the position in practice with regard to the application of this legislation in these territories is still not clear. In this respect the Committee wishes to draw attention to a passage contained in the preamble of the draft of Legislative Decree No. 49058, which, in general terms, points to " some difficulties which have arisen in the meantime in the practical application of several enactments directly or indirectly relating to the trade union law, as well as the problems arising from the extension to the overseas provinces of certain basic texts on labour relations, the repeal of the Native Statute and the extension of the coverage of certain trade unions to the overseas provinces ".
279. 167. In this connection the Committee also observes that the above-mentioned Commission appointed under article 26 of the Constitution of the ILO, although it indicated that it was not in a position to present a full picture of the situation had gathered the distinct impression that " the existing trade unions do not in fact effectively represent the African worker ".
280. 4. Conclusions
281. 168. In these circumstances the Committee recommends the Governing Body:
282. (a) to recall that as a consequence of the repeal of the Native Statute on 6 September 1961:
283. (i) the status of " native workers " has disappeared from Portuguese legislation;
284. (ii) all workers in the Portuguese " overseas provinces ", without distinction, are covered by the same trade union legislation as that applying in metropolitan Portugal;
285. (b) to emphasise that all the recommendations in this report therefore apply without distinction to the Portuguese " overseas provinces ";
286. (c) to stress the fact that the guarantee of equality before the law in trade union matters should be supplemented by measures to promote effective opportunities for all workers in the Portuguese " overseas provinces " to establish and join organisations of their own choosing and to participate fully in the trade union movement.

B. B. The Committee's conclusions

• General Conclusions
  169. 169 The Committee wishes to recall at this stage that the Government has stated in its communication dated 23 January 1968 that it is " prepared to furnish any other elements which might still be considered useful and to facilitate any direct appreciation of Portuguese social realities which the Committee on Freedom of Association itself may wish to undertake ". The Governing Body, at its 172nd Session (May-June 1968), took note with interest of this statement by the Government.

The Committee's recommendations

1. 170. Concerning the case as a whole, the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to the restriction of the number of trade unions that may be formed:
2. (1) to note that the legislation has been modified in the following respects:
   • (i) the provisions of section 1 of Legislative Decree No. 23050 under which a trade union could be established only by more than 100 workers engaged in the same profession have been deleted;
   • (ii) the provisions of section 3 have been amended so as to make it possible for trade unions to extend their geographical coverage beyond a district;
   • (iii) section 3 has been further amended in such a way as to make it possible for one trade union to represent more than one occupation in the same district or for two or more trade unions to represent the same occupation in the same district;
3. (2) to draw the attention of the Government to its view that in order to give effect to the generally accepted principle that workers should have the right to establish and join organisations of their own choosing without previous authorisation it would be necessary to take the following further steps:
   • (i) to delete the provisions in section 3 under which the approval of a government agency must be obtained before either one trade union may represent more than one occupation in the same district or two or more trade unions may represent the same occupation in the same district;
   • (ii) to remove the restrictions imposed on trade unions in section 4 whereby only those of a certain minimum size and financial solvency may legally exist;
   • (b) with regard to the allegations concerning the obligation to submit trade union rules for approval by the authorities:
4. (1) to take note of the following changes effected in section 15 of Legislative Decree No. 23050:
   • (i) the deletion of subparagraph (e), requiring a trade union to limit the payments to the union by its branches to 50 per cent of the contributions received by such branches;
   • (ii) the deletion of subparagraphs (b) and (c), requiring the inclusion in trade union rules of a declaration of respect for the principles and purpose of the national community, an express renunciation of any and every form of activity, internal or external, which was contrary to the interests of the Portuguese nation, and a recognition of the fact that the trade union constituted a factor required for active co-operation with all the other factors of the national economic system, and consequently a repudiation of the class war;
5. (2) to draw the attention of the Government to its view that, in order to comply with the generally accepted principles that workers' organisations should have the right to draw up their Constitutions and rules, to organise their activities and to formulate their programmes, that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and that the law of the land should not be such as to impair, or be so applied as to impair, the effective enjoyment of this right, it would be necessary to take the following further steps:
   • (i) to delete the provisions of section 9 of Legislative Decree No. 23050, in accordance with which " national trade unions shall subordinate their respective interests to the interests of the national economic system ";
   • (ii) to delete the provisions of section 18 (3) of Legislative Decree No. 23050, in accordance with which approval of trade union rules can be given only after the National Institute of Labour and Social Welfare has reported that the proposed trade union is " justified in view of the economic and social interests of the community ";
   • (c) with regard to the allegations concerning restrictions on the right to elect their representatives:
6. (1) to take note of the following changes introduced into the legislation:
   • (i) Legislative Decree No. 25116 has been repealed and section 15 (5) of Legislative Decree No. 23050 has been amended, the previous system of ministerial approval of the results of trade union elections being replaced by a system of verification of the conditions of eligibility of candidates by credentials committees elected at trade union general assemblies;
   • (ii) Legislative Decree No. 32820 has been repealed and section 21 of Legislative Decree No. 23050 has been amended, the previous system, which permitted the substitution of government appointees for elected governing bodies of trade unions, being replaced by another system, providing for the suspension and dismissal of members of governing bodies through court action;
7. (2) to draw the attention of the Government to the desirability of the following measures:
   • (i) in order to avoid the danger of serious limitations on the right of workers to elect their representatives in full freedom, plaints brought before labour courts by the National Institute of Labour and Social Welfare in accordance with subsection 8 of the new section 15 challenging the results of trade union elections should not-pending the final outcome of the judicial proceedings-have the effect of suspending the validity of such elections;
   • (ii) in order to avoid a similar danger with regard to the right of workers to elect their representatives in full freedom as well as the right of trade unions to organise their administration and activities, it would be necessary to delete the provisions contained in the new section 10 enjoining respect for " the higher interests of the Nation and the common good ", on the basis of which labour courts are to decide whether the conduct of trade union officers warrants their dismissal, in view of the fact that these provisions are drafted in terms so wide that they fail to afford any precise criteria for judicial decision;
   • (d) with regard to the allegations concerning suspension and dissolution of trade union organisations by administrative authority:
8. (1) to take note of the changes introduced into section 10 of Legislative Decree No. 23050, whereby the provisions on " immediate dissolution " of trade unions by administrative authority have been removed;
9. (2) to draw the attention of the Government to its view that in order to secure fuller compliance with the principle that trade unions should not be dissolved or suspended by administrative authority it would be necessary to amend the new section 20 of Legislative Decree No. 23050 so that a decision by a non judicial authority such as the Corporative Council to dissolve a trade union should not become effective until the statutory period has expired without an appeal being lodged against this decision or until it has been confirmed by a decision of the court;
   • (e) with regard to the allegations concerning compulsory trade union contributions:
     • to draw the attention of the Government to its view that in order to secure fuller compliance with the principle that workers should have the right to constitute and join organisations of their own choosing, it would be necessary to amend Legislative Decree No. 29931 of 15 September 1939, removing the obligation imposed on all the workers in the category concerned to pay contributions to the single national trade union which it was permitted to form in any one occupation in a given area;
   • (f) with regard to the allegations concerning supervision of collective bargaining and approval of collective agreements by the public authorities:
10. (1) to note Legislative Decree No. 49212, whereby the mandatory intervention of the National Institute of Labour and Social Welfare in the drafting of collective agreements, the guidance of negotiations and the drafting of terms is replaced by optional intervention at the request of the corporation with a view, in particular, to providing the parties with legal and technical advice;
11. (2) to draw the Government's attention to the fact that Legislative Decree No. 49212 has not changed the previous situation as regards the requirement of ministerial approval in order that a collective agreement may come into force, and to request the Government once again to state whether the competent minister may refuse this approval and, if so, in what circumstances and on what grounds, and whether there is any possibility of appealing against refusal to approve a collective agreement;
    • (g) with regard to the allegations concerning restrictions on the right of trade unions to affiliate with international organisations of workers:
      • to bring the attention of the Government to its view that in order to give full effect to the generally accepted principle that trade union organisations should have the right to affiliate with international organisations of workers it would be necessary to delete the provisions of the new section 10 of Legislative Decree No. 23050 subjecting the exercise of this right to the discretionary authority of the National Institute of Labour and Social Welfare;
    • (h) with regard to the allegations concerning the prohibition of strikes under Portuguese law:
      • to draw the attention of the Government once again to its view that the right of workers and their organisations to strike is a legitimate means of defending their occupational interests and that it would therefore be necessary to amend the present legislation, in particular Legislative Decree No. 23870, which prohibits strikes altogether;
    • (i) with regard to the allegations relating to the right of indigenous workers in Portuguese " overseas provinces " to organise:
12. (1) to recall that as a consequence of the repeal of the Native Statute on 6 September 1961:
    • (i) the status of " native workers " has disappeared from Portuguese legislation;
    • (ii) all workers in the Portuguese " overseas provinces ", without distinction, are covered by the same trade union legislation as that applying in metropolitan Portugal;
13. (2) to emphasise that all the recommendations in this report therefore apply without distinction to the Portuguese " overseas provinces ";
14. (3) to stress the fact that the guarantee of equality before the law in trade union matters should be supplemented by measures to promote effective opportunities for all workers in the Portuguese " overseas provinces " to establish and join organisations of their own choosing and to participate fully in the trade union movement.
    • Geneva, 25 February 1970. (Signed) Roberto AGO, Chairman.