Interim Report - Report No 65, 1962

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

1. 6. The complaint of the I.C.F.T.U is contained in a communication addressed directly to the I.L.O on 23 May 1961. The Government forwarded its observations on the complaint in a communication dated 10 October 1961.
2. 7. Portugal has not ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), 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).

Allegations relating to Non-Observance of International Labour Conventions

1. 8. The I.C.F.T.U, as a preface to its allegations relating to trade union legislation in Portugal and Portuguese non-metropolitan territories, claims that many of the provisions of that legislation are contrary to the spirit and letter 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). The I.C.F.T.U requests the I.L.O to call upon the Government of Portugal to amend its legislation accordingly and to invite the Government to ratify the two Conventions.
2. 9. The Government declares in the first place that it has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and is, therefore, not bound by its provisions; in the Government's view it is quite improper for a complainant to attack Portuguese legislation in terms of an unratified Convention. The Government considers that the Committee should judge complaints in the light of events which may take place in a given country, but that the procedure should not be used as a reason for examining legislation in a country which has not ratified a Convention, especially when the statutory provisions impugned have for long been familiar to the International Labour Organisation.
3. 10. The Committee observes that the complainants link their allegations with the provisions 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), while the Government expresses the view that it is the function of the Committee to pronounce upon factual events rather than upon the conformity of a country's legislation with Conventions which it has not ratified. While the two Conventions have not been ratified by Portugal, the Committee, as it did in Case No. 211 relating to Canada, considers it appropriate to point out that the Declaration of Philadelphia, which now constitutes an integral part of the Constitution of the International Labour Organisation and whose aims and purposes are among those for the promotion of which the Organisation exists, as mentioned in article 1 of the Constitution as amended in Montreal in 1946, 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". In these circumstances, the Committee, as it did in the earlier cases cited above, considers 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 the 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". Portugal is one of the governments which have complied with this obligation at the request of the Governing Body in respect 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). The Committee therefore considers that, while recognising that the provisions of the said Conventions are not binding upon Portugal, it should examine the allegations relating to these Conventions made in the present case with a view to ascertaining the facts and reporting them to the Governing Body.
4. 11. The Government also contends that the procedure should not be invoked in order to impugn legislation the provisions of which have long been familiar to the International Labour Organisation. In Case No. 138, relating to the United States and Greece, when it had before it allegations relating to events which had occurred several years beforehand, the Committee observed that " while no formal rules fixing any particular period of prescription are embodied in the procedure for the examination of complaints alleging infringements of trade union rights, the general principle of prescription cannot be disregarded and, where a complaint is presented with respect to matters which occurred as many as ten years prior to the date of the complaint, not only may it be more difficult for a government to reply in detail to the allegations but it may even be unreasonable in some cases to expect it to be able to furnish a fully satisfactory reply. In such cases it would be appropriate to expect a proper explanation by the complainant as to why the presentation of the complaint has been so long delayed-as might be afforded, for example, if a complainant had been under duress, or if officers of a complaining organisation had long been in custody, or if the evidence in substantiation of a complaint had only recently come to light. The Committee therefore considers that, in the absence of a reasonable explanation for such long delay, it should pay particular attention to this fact in deciding whether it is appropriate for it to examine the merits of the complaint, for the reason that it may be difficult to decide in some cases how much reliance is to be placed on the evidence, or even on the bona fides, of a complainant who sees fit to let several years elapse before presenting a complaint based on matters which could have been alleged at a much earlier date." But these considerations are applicable only when allegations are made as to factual events which have occurred long before. But, as the Committee observed in Case No. 143 relating to Spain, examined at its 18th Session (October 1957), the position is not the same with respect to allegations which " do not relate to facts which it may now be difficult to verify but to the texts of laws which are still in force and which are alleged to have a continuing application". In that case, therefore, while considering it purposeless to formulate conclusions with regard to the dissolution of trade union organisations in Spain in 1939 and the following years in view of the time which had since elapsed, the Committee considered it appropriate to examine on their merits allegations according to which certain persons were still serving sentences passed many years before because they were leaders or members of the dissolved organisations or attempted to reconstitute those organisations, while persons who attempted to reconstitute organisations other than the official organisations were still liable to penal sanctions. As the allegations in the present case do not relate to factual events which occurred a long time ago but to legislation which is still in force and is still applied, the Committee considers that no valid reason subsists to cause it to decline to examine such allegations on their merits.
5. Allegations relating to the Legislation of Portugal
6. 12. The allegations relate to the general system of trade unionism in Portugal-the system of " corporations " introduced by the Constitution of 1933 and brought into force by decrees promulgated in 1933 and 1934. The specific allegations are considered separately below.
7. (a) Allegations relating to Restriction of the Number of Organisations That May Be Formed
8. 13. It is alleged that under the legislation only one legally constituted trade union for each occupation in any region is recognised. The complainant considers this to be 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.
9. 14. The Government expresses the view that the said Convention sacrifices the effectiveness of trade union action to an abstract concept of freedom of association, which should not necessarily involve the establishment of multiple organisations in one and the same occupation and for the same region. " What is really important for the defence of occupational interests ", contends the Government," is not the formation of many small associations, but free establishment of associations which really represent the categories concerned, and which have the authority and prestige indispensable to progress in the regulation of industrial relations." The Government considers that its policy is justified not only by ideological reasons but by practical requirements and the need for defence against communism, because the Communists in their own countries impose iron discipline in the trade union as in other fields but seek to foment disturbance in trade unions in other countries, which the trade unions in developing countries find it harder to resist than do the strong, established trade unions of more highly industrialised countries.
10. 15. The Portuguese trade unions, argues the Government, have legal personality, are independent of the State and are established by the persons concerned, on their own free initiative, at the district, intermediate or national level; once a union has been set up for a certain occupation or group of occupations in a certain area, no other union of the same kind can be recognised in that area. The Government points out that in Australia and New Zealand registration can be refused to a union if its members can conveniently belong to an organisation which is already registered and is representative of the occupation, that in Egypt only one organisation of workers and one of salaried staff can be set up in one undertaking, and that, in the U.S.S.R and the People's Democracies, as noted in Freedom of Association, a workers' education manual published by the I.L.O in 1959, there exists 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 directs the movement as a whole. Hence, the Government points out, "Portugal's situation is thus not unique ". In some countries, declares the Government, a factual trade union monopoly has been established by degrees; the claim that nothing prevents the establishment of rival organisations in such countries is true in theory only, and workers who do not join the established unions may suffer grave prejudice. The Government claims that in Portugal workers are free to join or not to join trade unions, without being prejudiced, and that the country now has 327 trade unions, 128 trade union groups, 21 federations and six Confederations, with a membership of 913,815 and representing 1,359,514 workers employed in commerce, industry and services.
11. 16. The object of Portuguese policy is not to limit freedom of association, declares the Government, but to ensure adequate representation of employers' and workers' organisations in the corporations and, through these, in the Corporative Chamber, a parliamentary body consisting of representatives of local authorities, bodies representing cultural, economic and other " social interests ", and employers' and workers' organisations, who have the right to express their views on all proposed legislation and to participate directly in the election of the President of the Republic. To discharge such representative functions, only organisations limited to one for each occupation and region can be effective.
12. 17. Finally, declares the Government, a multiplicity of organisations in the same occupation raises insurmountable difficulties in the field of collective bargaining. Only the single union can represent the workers strongly and effectively; competition between rival unions would be at the expense of the interests of the workers.
13. 18. Sections 1 to 5 of Legislative Decree No. 23050 of 23 September 1933 read as follows
14. 1. A national trade union (sindicato nacional) shall mean a combination of more than 100 persons engaged in the same occupation, the aim of which is the study and protection of its occupational interests from the moral, economic and social points of view. It shall consist of persons who work for another or who are engaged in a liberal profession, and shall be constituted in accordance with the principles laid down in this Legislative Decree.
15. Sole subsection. The Constitution of a national trade union by a number of persons less than that laid down in this section may be authorised by way of exception.
16. 2. Every national trade union shall be bound to adopt a style and title which is not likely to cause confusion with any other trade union already in existence.
17. 3. National trade unions of salaried or wage-earning employees shall be formed according to districts, in each of which the State shall not recognise more than one national trade union for any given occupational category as a public body. The head offices of the trade unions shall be situated as a rule in the chief town of the district; nevertheless, authorisation may be given for their organisation and operation in any other locality where the number and importance of the employees in the category concerned justify this. National trade unions shall use the following style: National trade union of (occupation) for the district of...
18. Sole subsection. A single national trade union shall be formed for each liberal profession, with its head office in Lisbon and the right to set up district branches subject in all matters to the authority of the trade union. The national trade unions of advocates, medical practitioners and engineers shall be entitled to adopt the title of " Order ".
19. 4. The occupations in the chief town of each district which do not comprise a sufficient number of persons for the formation of a national trade union shall be affiliated to the trade union most nearly allied to them. They shall be entitled to form separate groups subject in all matters to the authority and higher unity of the trade union. Trade unions of salaried or wage-earning employees which include in their organisation one or more of the said groups shall indicate this in their title by the expression " and allied trades ".
20. 5. In the chief towns of communes the various occupations shall form branches of the trade unions concerned whenever the number of persons engaged therein exceeds twenty; nevertheless, such branches shall not exercise the right of representation or any other right conferred upon them by law otherwise than through the trade unions.
21. Section 7 of the decree reads as follows:
22. 7. National trade unions shall form federations and Confederations, which shall be the intermediate bodies of the corporation concerned, in accordance with the National Labour Code and the Corporations Code.
23. Section 13 of the decree reads as follows:
24. 13. National trade unions shall have the following privileges and powers:
25. 1. they shall be bodies corporate and entitled to exercise all the legal rights arising from this status, including that of representing the occupational interests of the category in question, and the right to sue and be sued;
26. 2. they shall be entitled to own the urban property strictly necessary for their offices, management and similar services, or (with the authorisation of the Government) any other property the income from which is used exclusively to increase the moneys of the provident institutions set up by the trade unions;
27. 3. they shall be entitled to dispose according to the rules of the proceeds of members' subscriptions and all other income;
28. 4. they shall be entitled to promote the organisation of producers' and consumers' co-operative societies among some or all of their members in accordance with the laws in force;
29. 5. they shall draw up collective contracts in accordance with the National Labour Code and the Corporations Code.
30. 19. 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 small 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. This would seem to be confirmed by the fact that section 24 required all industrial associations of wage-earning and salaried employees in existence prior to its promulgation to comply with the decree. The Government itself points out in its reply that " there are in Portugal 327 trade unions ", all of which " represent " the workers-all of which, therefore, are national trade unions within the meaning of the decree.
31. 20. The Government has compared these legislative provisions with those subsisting in Australia, New Zealand, the United Arab Republic (Egypt) and the U.S.S.R, and with the situation existing in countries in which a factual trade union monopoly has been established by degrees. At the outset it may be observed that the Portuguese situation cannot be compared with that in Australia and New Zealand, where registration is voluntary, although accompanied by considerable advantages in the sphere of representation of the workers, and does not prevent the establishment and continued existence of non-registered organisations. Without expressing any opinion with regard to the legislation of Australia and New Zealand, therefore, the Committee considers that the said legislation is not relevant to the present case.
32. 21. With regard to the situation in the United Arab Republic (Egypt), the I.L.O. Committee of Experts on the Application of Conventions and Recommendations has had occasion to consider the contention of the Government of that country that the prohibition under its national legislation of the formation of more than one general trade union by persons employed in any given occupation, trade or craft in the same region responds to the need to avoid disputes and splits in the trade union movement-precisely the argument advanced by the Government of Portugal in the present case with regard to the legislative position in Portugal. The Committee of Experts observed, as it had already done in the case of other countries, that, while it may be to the advantage of the workers to avoid a multiplicity of trade union organisations, unification of the trade union movement must not be imposed through state intervention by legislative means, as such an intervention runs counter to the rule laid down in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that workers and employers have the right to establish and join organisations " of their own choosing " (Article 2) and shall be enabled to " exercise freely the right to organise " (Article 11).
33. 22. The Committee of Experts had, on earlier occasions, compared the situation in the U.S.S.R with the factual situation in certain other countries-situations also referred to by the Government of Portugal in reply. The Committee of Experts 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."
34. 23. It would seem, therefore, that the legislative provisions in Portugal restricting the recognition of a union when another exists in the same region or occupation are indeed, as the Government points out, comparable with similar provisions existing in the United Arab Republic (Egypt) and the U.S.S.R, and are, therefore, "not unique". While agreeing that the situation in these respects in Portugal is similar to that subsisting in the United Arab Republic (Egypt) and the U.S.S.R, and also noting that Portugal, unlike the two other countries mentioned, has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee nevertheless considers that it must fulfil the duty entrusted to it of reporting to the Governing Body the extent to which the Portuguese legislative provisions in question are compatible or incompatible with the generally accepted principles relating to freedom of association.
35. 24. The Committee on Freedom of Association itself has emphasised on many occasions a 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. In particular, in Case No. 103 (United Kingdom-Southern Rhodesia), the Committee expressed the view that a provision in a proposed enactment according to which a registrar might enrol an applicant union for any particular industry in any particular area if satisfied that no other union was enrolled or registered for that industry in that area would be incompatible with this principle.
36. 25. In these circumstances the Committee recommends 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 are incompatible with this principle.
37. (b) Allegations relating to Approval of Trade Union Rules by the Authorities
38. 26. The complainants allege that trade union rules are subject, under Legislative Decree No. 23050 of 23 September 1933, to the approval of the Minister of Corporations, who alone is entitled to authorise the legal existence of a trade union, and that the application for approval of rules or amendments to rules must be accompanied by a report from the National Institute of Labour and Social Security (the section of the Ministry of Corporations which deals with labour matters) indicating whether approval should be granted or whether changes in the rules should be required. The complainants allege also that trade union rules are 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 is contrary to the interests of the Portuguese nation, a recognition that the trade union is 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, are contrary to Article 3, paragraph 1, of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
39. 27. The Government declares that the National Institute of Labour and Social Security merely ascertains whether the rules are in conformity with the law and whether a new organisation is financially viable. If so, approval is not refused; against refusal an appeal would lie to the courts. All unions now existing in Portugal, states the Government, have freely determined their own rules; the Minister's right to approve rules does not carry with it the power to introduce changes therein. The fact that a check is made to ensure that a union's Constitution and rules conform to statutory provisions is equivalent to what takes place in several countries, some of which have 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 are compatible with the Convention so long as they do not infringe the guarantees provided for therein.
40. 28. The Government expresses the view that the provisions as to the matters stated by the complainants to be required to be set forth in trade union rules merely give effect to certain accepted principles which in no way affect freedom of association.
41. 29. 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. It is therefore necessary to consider the relevant provisions of Legislative Decree No. 23050.
42. 30. Section 8 of Legislative Decree No. 23050 reads as follows:
43. 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 Labour and Provident Institution 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.
44. Sole subsection. A special register of national trade unions shall be kept in the National Labour and Provident Institution, and all the important facts concerning the existence of each trade union and its various branches shall be recorded therein.
45. Sections 15 to 18 of the decree read as follows:
46. 15. The rules of every national trade union shall comprise the following:
47. (a) the name of the trade union, its head office and its aims;
48. (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;
49. (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;
50. (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;
51. (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;
52. (f) the method of appointing the managing committee, and its powers and duties;
53. (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;
54. (h) the procedure for winding up in the event of the dissolution of the trade union.
55. ......................................................................................................................................................
56. 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.
57. (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.
58. (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, i n the same manner as for the authorisation of a trade union.
59. 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.
60. 18. The application mentioned in section 16 shall be submitted for decision together with a report of the National Labour and Provident Institution stating
61. 1. Whether the rules contain anything contrary to the National Labour Code, this Legislative Decree or the general laws;
62. 2. Whether the rules comply with the conditions necessary for approval or will not do so until certain amendments have been effected;
63. 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.
64. 31. It is to be observed that subparagraphs (a), (d), (f), (g) and (h) of section 15 cited above enumerate a number of formal matters which unions normally deal with in their rules and cannot in themselves be regarded as restricting their right to draw up their rules in freedom. Subparagraph (e), however, requires 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 shall receive from its own branches is normally a matter for a union to decide for itself, in its rules, in its own discretion. While the Committee has not been called upon to pronounce on such a provision in the case of union branches, it has expressed the view that a legal restriction of the amount which a federation may receive from its constituent unions may 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.
65. 32. In the present case the Committee recommends the Governing Body to draw the attention of the Government to its view that the limitation placed 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.
66. 33. The Government maintains that the verification made by the National Institute of Labour and Social Security is for the purpose of ensuring that the statutory provisions have been complied with. According to section 18 (3) of Legislative Decree No. 23050 cited above, however, the report made by the Institute to the Minister is not confined to this point; it also has to state " whether the proposed trade union organisation is justified in view of the economic and social interests of the community ". As the Decree lays down no criteria for determining this matter, it would appear that the decision on this point lies within the discretion of the Minister on the basis of the report made by a body which is in fact a section of the Ministry.
67. 34. The Committee therefore recommends the Governing Body to draw the attention of the Government to its view 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 proposed 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 ".
68. 35. Subparagraphs (b) and (c) of section 15 of Legislative Decree No. 23050 cited above require 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 is contrary to the interests of the Portuguese nation, and 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.
69. 36. The question at issue here is whether such provisions merely give effect to a number of accepted principles which do not affect freedom of association-as the Government maintains-or whether they may 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 Case No. 11 relating to Brazil. If the situation is as the Government contends, it may be wondered why it was necessary to enact these provisions at all. The question of whether in fact they imply subordination of the trade unions to the Government's policy may be explained by referring to other provisions in the decree. As already observed, approval is given to the formation of a trade union only after the National Institute of Labour and Social Security has reported, among other things, that the proposed trade union is 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 states 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 appears 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, imply 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 is subordinate to the economic policy of the Government, is inescapable.
70. 37. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to its view that 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. (c) Allegations relating to Restrictions on the Right of Trade Unions to Affiliate with International Organisations of Workers
72. 38. It is alleged that a trade union may 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.
73. 39. The Government argues that it would be a contradiction to prevent anti-national infiltration by subversive political parties or groups at the national level (see paragraph 44 below) while permitting international affiliations which could lead to similar results, and declares that the requirement imposed is not a prohibition but a restriction, such as exists e.g. in Brazil, Honduras, India and Turkey.
74. 40. Section 10 of Legislative Decree No. 23050 of 23 September 1933 reads as follows:
75. 10. National trade unions shall exercise their functions exclusively in the national sphere and with the utmost consideration for the higher interests of the nation; for this reason it shall not be lawful for them 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. Further, they shall not without such permission make any pecuniary contribution for the maintenance of foreign organisations, nor receive any donations or loans from such organisations.
76. Sole subsection. Any contravention of the provisions of this section shall entail the immediate dissolution of the trade union and forfeiture of political rights for two years by the members of the administrative bodies thereof.
77. 41. On a number of occasions' the Committee has emphasised the importance which it attaches 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 the case relating to Brazil (Case No. 11), 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, suggested to the Government that it should re-examine certain aspects of its legislation, including the provisions relating to international affiliation of organisations, in the light of the above-mentioned Convention, with a view to ratifying the Convention. Again, in Case No. 248 relating to Senegal, the Committee 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 ".
78. 42. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the importance which it attaches 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 is not compatible with this principle.
79. (d) Allegations relating to Interference with the Right of Trade Unions to Elect Their Representatives
80. 43. It is alleged that, according to Decree No. 25116 of 12 March 1935, the elected management committee of a trade union requires the approval of the Minister of Corporations, while Decree No. 32820 of 31 March 1942 empowers the Government to appoint management committees to replace the elected committees in the event of " serious and duly demonstrated reasons ".
81. 44. The Government admits the existence of these provisions and gives the following reasons for them. The provision regarding approval of management committees is intended, firstly, to check the propriety of the electoral process, and, secondly, to preclude domination of the trade unions by the Communist party or other groups which propose to attack the country's Constitutional principles or use force to reach their political objectives. The use of the power to appoint management committees, declares the Government, has 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 may be the subject of appeal.
82. 45. The Committee has emphasised on several occasions the importance which it has 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 requires to be considered in the light of this principle. There exist in a number of countries legal provisions whereby an official who is independent of the public authorities-such as a trade union registrar-may take action, subject to an appeal to the courts, if complaint is made or there are reasonable grounds for supposing that irregularities have taken place in a trade union election, contrary to law or to the rules of the organisation concerned; again, irregularities of this kind may give rise to an action in the ordinary courts. This, however, is quite a different situation from that which arises when the elections are stated, in general terms, to be valid only after being approved by the administrative authorities. Indeed, the provisions of Decree No. 25116 have already been noted by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations as affording an example of provisions of national legislation which are not compatible with the principle embodied in Article 3, paragraph 2, of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that the public authorities should refrain from any interference which would restrict or impede the lawful exercise by organisations of their right to elect their representatives in full freedom.
83. 46. The Government maintains that the purposes of Decree No. 25116 are to verify the propriety of the electoral process and to prevent domination of the trade unions by subversive political parties or groups. In the absence of clear statutory criteria, however, the discretion of the authorities appears to be unfettered.
84. 47. The Committee considers, therefore, that the requirement in Portugal of governmental approval of the results of trade union elections is not compatible with the principle of freedom of election enunciated above.
85. 48. The second issue is 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 ". The Government states that such a measure is exceptional and taken on a provisional basis, its purpose being " to avoid irregularities in the administrative life of occupational organisations ".
86. 49. These provisions are extremely wide and appear to leave it open to the administrative authorities to remove the management committee of a union whenever, in their discretion, they consider that they have "serious and duly demonstrated reasons"; they can in no way be compared with the provisions in certain countries which make it possible for the courts to declare an election invalid for specific reasons defined by law. This is an unfettered power vested in the public authorities. The Committee has already expressed the view that removal from trade union office by an administrative authority, even on the ground of illegal political activity, is a procedure which may give rise to abuses and may infringe the generally recognised right of organisations to elect their representatives in full freedom and to organise their administration and activities. In Case No. 140 relating to Argentina, the Committee took the view that the appointment by the Government of that country of persons to administer the General Confederation of Labour of Argentina on the ground that such a measure was rendered necessary by the corrupt administration of the unions would be " incompatible with freedom of association in a normal period ".
87. 50. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the importance which it attaches 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, are not compatible with this principle.
88. (e) Allegations relating to the Dissolution of Organisations by Administrative Authorities
89. 51. It is alleged that any workers' organisation which deviates from the purpose for which it was established, or fails to comply with its rules, or does not furnish the Government or other public bodies with information requested of it on matters within its competence, or promotes or assists strikes or stoppages of work, etc., may be dissolved by withdrawal of its charter by simple decision of the competent authorities (section 20 of Legislative Decree No. 23050 of 23 September 1933).
90. 52. The Government argues that, if the trade unions must conform to certain principles laid down by law, they cannot be allowed to evade these principles after their establishment. According to the Government an appeal may be made to the courts against the Government's decision-one such appeal having been successfully made by a trade union--so that dissolution is undertaken, in the last resort, by process of law.
91. 53. The full text of section 20 of Legislative Decree No. 23050 reads as follows:
92. 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.
93. 54. In a considerable number of cases the Committee has emphasised the importance which it attaches to the generally accepted principle that workers' and employers' organisations should not be liable to be suspended or dissolved by administrative authority. In the present case the Government contends that the administrative decision to dissolve a trade union can be appealed against in the courts. In Case No. 11 relating to Brazil the Committee had to examine allegations relating to the suspension of the Brazilian Confederation of Labour by administrative action, the organisation having subsequently been dissolved as a result of proceedings initiated in the competent court. The Government of Brazil contended that the suspension by administrative action was simply a preliminary step in the judicial dissolution procedure which offered all the guarantees of law to those concerned. The Committee pointed out that it is a generally accepted principle that the suspension or dissolution of an employers' or workers' organisation should be pronounced only by the courts and, while observing that dissolution was pronounced ultimately by the competent court, drew attention to the fact that, where suspension measures are issued by administrative authority, there may be a danger that they will appear to be arbitrary, even though they are issued only temporarily or for a limited time and as a preliminary to subsequent court action. But the power reserved to the Government under Portuguese legislation goes much further than this. In the case of Brazil the administrative authority could only suspend and not dissolve the organisation; dissolution could ensue only if the authorities themselves and not the trade union in the role of an appellant-instituted proceedings in the courts. In the present case the only remedy open to the trade union is 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 case 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 (see paragraph 40 above).
94. 55. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the importance which it has 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 are not compatible with this principle.
95. (f) Allegations relating to Compulsory Union Contributions
96. 56. It is alleged that Decree No. 29931 of 15 September 1939 entitles the Minister of Corporations to make the payment of union contributions compulsory for certain categories of workers even where they are not union members.
97. 57. The Government declares that it is 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 benefit from the activities of the union and collective agreements apply to the whole occupation; contributions are received directly by the unions without intervention by official agencies.
98. 58. The Committee was called upon to consider the question of automatic deduction of union contributions as a result of legislation in Case No. 121 relating to Greece. 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 did not formulate definitive conclusions on the matter because of two factors which subsisted in that case-they do not subsist 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.
99. 59. The Committee has also been called upon to examine cases in which 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 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.
100. 60. In fact there are many examples of countries in which the law prohibits certain forms of union security arrangements and many others in which the law permits such arrangements, either formally or by reason of the fact that no legislation on the matter exists at all. But the position is very different where the law imposes 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.
101. 61. The I.L.O. Committee of Experts on the Application of Conventions and Recommendations has regarded a situation in which an individual is denied any possibility of choice between different organisations, by reason of the fact that legislation permits the existence only of one organisation in the sphere in which he carries 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 exists by virtue of legislation in Portugal (see paragraphs 12 to 25 above). In these circumstances, it would seem that a legal obligation to pay contributions to that monopoly trade union, whether workers are members or not, represents a further consecration and strengthening of that monopoly.
102. 62. In these circumstances the Committee recommends 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 is permitted to be formed in any one occupation in a given area is not compatible with the principle that workers should have the right to join organisations " of their own choosing ".
103. (g) Allegations relating to Supervision of Collective Bargaining and Approval of Collective Agreements by the Public Authorities
104. 63. It is alleged that delegates of the National Institute of Labour and Social Security " 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). The complainants consider that these provisions are contrary to Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
105. 64. The Government states that workers' and employers' organisations enjoy the greatest freedom in negotiating collective agreements and that the intervention of the Institute is aimed at facilitating negotiations, being of an explanatory and conciliatory character, particularly as regards sectors in which the trade unions are less highly developed, and seeking especially to induce employers' organisations to establish better conditions of work. Ministerial approval, declares the Government, " is aimed merely at safeguarding the higher interests of the national economy, which must evidently condition freedom of negotiation ".
106. 65. In a number of cases the Committee has emphasised the importance that it has always attached to the fact that the right to bargain freely with employers with respect to conditions of work constitutes 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.
107. 66. The allegations raise two issues: intervention in the bargaining process and the need for governmental approval of agreements.
108. 67. With regard to the first issue, it is necessary to consider the relevant sections of Legislative Decree No. 36173 of 6 March 1947 respecting collective agreements.
109. 68. Sections 25 to 28 of this decree read as follows:
110. 25. The managements of the corporative bodies shall be responsible for negotiating and signing the collective agreements to which the said bodies are parties.
111. 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.
112. 26. The social welfare services and the National Labour and Welfare Institution shall give assistance when collective agreements are made, guiding the negotiations and the drafting of terms.
113. 27. The drafts of all agreements shall be sent to the National Labour and Welfare Institution in triplicate on unstamped paper for inspection by the Second Division, which shall consult the First and Third Divisions of the Institution on matters relating to the corporative organisation and provident institutions respectively.
114. 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 Labour and Welfare Institution after signature by the parties.
115. 69. It is 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 requires the drafts of all agreements to be sent to the Institute " for inspection ". No provision appears to limit intervention by the Institute to cases in which its mediation is requested by the parties in the negotiation of agreements or to cases in which an industrial dispute has arisen; section 26 appears to make its intervention mandatory in all collective negotiations. The Government maintains that its intervention is aimed only at facilitating negotiations and conciliating the parties. It would seem evident, however, that, in giving its mandatory assistance in " guiding the negotiations and the drafting of terms ", the Institute is obliged to ensure that the provisions of Legislative Decree No. 36173 and other relevant decrees are 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, would appear to include section 8 (a) of Legislative Decree No. 36713, 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 ".
116. 70. It would therefore appear that the intervention of the National Institute of Labour and Social Security is essentially for the purpose of ensuring 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 is 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.
117. 71. Secondly, it is alleged that the final agreement is not effective until it has 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 ".
118. 72. 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 Social Welfare ".
119. 73. In Case No. 151 relating to the Dominican Republic the Committee 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 Case No. 143 relating to Spain, 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.
120. 74. In these circumstances the Committee recommends the Governing Body:
121. (a) to draw the attention of the Government to the importance which it has always attached to the principles:
122. (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;
123. (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;
124. (iii) that the public authorities should refrain from any interference which would restrict or impede the lawful exercise of the right of 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;
125. (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;
126. (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 Security in collective negotiations and requiring collective agreements to be submitted to the public authorities for approval is not compatible with the principles expressed in (i), (ii), (iii) and (iv) above.
127. (h) Allegations relating to Prohibition of Strikes
128. 75. It is alleged that Decree No. 23870 of 18 May 1934 prohibits strikes and lockouts and specifies penalties for persons who are convicted of these " offences ". Between October 1959 and February 1960, declare the complainants, 48 workers were convicted of " strike offences " and condemned to terms of imprisonment of from five months to five years, while on 7 April 1961 14 workers were 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 pyrite mines at Aljustrel in the province of Alemejo; after judgment these 14 workers were released because they had already been in prison for one year.
129. 76. The Government states that it is not aware of any directive with respect to strikes laid down in the Conventions relating to freedom of association and that Portuguese legislation provides peaceful machinery for the settlement of labour disputes which has been consistently utilised. In conclusion, the Government declares 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 ".
130. 77. The Committee has always applied the principle that allegations relating to the exercise of the right to strike are not outside its competence in so far, but only in so far, as they affect the exercise of trade union rights', and has 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 is generally recognised. In this connection the Committee has emphasised the importance which it attaches where strikes are 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 occupational interests, and has pointed out that the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage.
131. 78. In the present case the situation is that strikes and lockouts are entirely prohibited and made the subject of penalties by Legislative Decree No. 23870 of 18 May 1934. Thus, participation in a strike is punishable by a fine of from 50 to 1,000 escudos or imprisonment for not more than 12 months; if the act is considered to have been committed for political purposes, the offender is liable to transportation for from three to eight years and a fine not exceeding 2,000 escudos. If the strike is intended to influence the decisions of the public authorities the penalty is imprisonment for from two to four years. A second offence, in any case, shall carry the maximum penalty.
132. 79. Labour courts were set up by Legislative Decree No. 24363 of 15 August 1934. As noted S by the Committee on Freedom of Employers' and Workers' Organisations (the " McNair Committee ") set up by the I.L.O, all labour disputes are compulsorily submitted to the labour courts, which are entrusted with conciliation and arbitration functions. Their decisions are binding and enforceable, but appeals lie to the Supreme Administrative Tribunal.
133. 80. The Committee observes, however, that the Government states that the issue of additional provisions to safeguard further the position of the workers is now under examination. The Committee feels, 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 considers should be borne in mind in this connection.
134. 81. In these circumstances the Committee recommends the Governing Body:
135. (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 ";
136. (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 principle 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;
137. (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.
138. 82. The Government has not replied to the specific allegations relating to workers sentenced in respect of " strike offences " between October 1959 and February 1960 and on 7 April 1961 (see paragraph 75 above). The Committee therefore recommends the Governing Body to request the Government to furnish its observations on this aspect of the case.
139. (i) Allegations relating to Denial of the Right of Association to Indigenous Workers in Portuguese Overseas Provinces
140. 83. It is alleged that the metropolitan trade union legislation applies to the Overseas Provinces, but only to persons of European descent and assimilados. The complainants declare that the census figures published in the 1958 edition of the Anudrio estatistico do Ultramar show 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 states, according to the complainants, that trade union membership is not open to the unassimilated " population, that is, over 99 per cent of the non-European population.
141. 84. The Government contends that " in this regard, the position of the Portuguese Government is entirely in accordance with Article 15 of the Indigenous and Tribal Populations Convention, 1957 (No. 107), which Portugal has ratified. This provides that each Member shall, within the framework of national laws and regulations, adopt special measures to ensure the effective protection, with regard to recruitment and conditions of employment, of workers belonging to the populations concerned so long as they are not in a position to enjoy the protection granted by law to workers in general ". The Government declares further that the Native Statute has been repealed, so that " the whole Portuguese population is now subject to the same political law, which is equal for all without distinction of race, religion or predominant cultural condition ".
142. 85. Portugal having ratified the Convention on 22 November 1960, it did not come into force for that country until 22 November 1961, so that the Government will not be requested to furnish a report on the application of the Convention, in accordance with article 22 of the Constitution of the International Labour Organisation, until October 1962. Accordingly, the only information at present before the Committee in this connection is the Government's statement that the position in the Portuguese Overseas Provinces is in accordance with Article 15 of the Convention.
143. 86. In view of the Government's statement that, the Native Statute having been repealed, the whole Portuguese population is subject without distinction to the same political law, the exact position at the present time is not clear. 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 is still in force; the Native Statute which has been repealed was Legislative Decree No. 39666-also dated 20 May 1954. It would seem necessary therefore to request the Government to be good enough to clarify the position of the indigenous population with respect to the enjoyment of the right to organise in law and in practice following this repeal.
144. 87. In these circumstances the Committee recommends 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 now enjoy the right to establish and join trade unions in law and whether they can now exercise this right in practice.

The Committee's recommendations

1. 88. In all the circumstances the Committee recommends the Governing Body:
   • (a) to decide, with respect to the allegations relating to the restriction of the number of organisations that may be formed, 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 are incompatible with this principle;
   • (b) to decide, with respect to the allegations relating to the approval of trade union rules by the authorities, to draw the attention of the Government to its view:
   • (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;
   • (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 proposed 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 ";
   • (iii) that for the reasons indicated in paragraphs 35 to 37 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;
   • (c) to decide, with respect to the allegations relating to restrictions on the right of trade unions to affiliate with international organisations of workers, to draw the attention of the Government to the importance which it attaches 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 is not compatible with this principle;
   • (d) to decide, with respect to the allegations relating to interference with the right of trade unions to elect their representatives:
   • (i) to draw the attention of the Government to the importance which it attaches to the principle that workers' organisations should have the right to elect their representatives in full freedom and to organise their administration and activities;
   • (ii) to express the view that the provisions of Legislative Decree No. 25116 of 12 March 1935, subjecting the results of trade union elections to governmental approval, and the provisions of Legislative Decree No. 32820 of 31 March 1942, empowering the Government to appoint management committees to replace the elected committees of trade unions, are not compatible with this principle;
   • (e) to decide, with respect to the allegations relating to the dissolution of organisations by administrative authorities:
   • (i) to draw the attention of the Government to the importance which the Governing Body has always attached to the principle that workers' and employers' organisations should not be liable to be dissolved or suspended by administrative authority;
   • (ii) to express its view that the provisions of sections 10 and 20 of Legislative Decree No. 23050 of 23 September 1933 are not compatible with this principle;
   • (f) to decide, with respect to the allegations relating to compulsory union contributions, 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 is permitted to be formed in any one occupation in a given area, is not compatible with the principle that workers should have the right to join organisations " of their own choosing ";
   • (g) to decide, with respect to the allegations relating to supervision of collective bargaining and approval of collective agreements by the public authorities:
   • (i) to draw the attention of the Government to the importance which the Governing Body has always attached to the principles:
2. (1) that workers' and employers' organisations should have the right to organise their activities and to formulate their programmes, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof;
3. (2) 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;
4. (3) that the public authorities should refrain from any interference which would restrict or impede the lawful exercise of the right of 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;
5. (4) 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;
   • (ii) 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 Security in collective negotiations and requiring collective agreements to be submitted to the public authorities for approval is not compatible with the principles expressed in (1), (2), (3) and (4) above;
   • (h) to decide, with regard to the allegations relating to the prohibition of strikes:
   • (i) 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 ";
   • (ii) 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 principle 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;
   • (iii) 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;
   • (iv) to request the Government to furnish its observations on the specific allegations relating to workers sentenced in respect of " strike offences " between October 1959 and February 1960 and on 7 April 1961 to which reference is made in paragraph 75 above;
   • (v) to decide, with respect to the allegations relating to the denial of the right of association to indigenous workers in Portuguese Overseas Provinces, to request the Government to explain to what extent, following the repeal of the Native Statute, the indigenous populations of the Overseas Provinces now enjoy the right to establish and join trade unions in law and whether they can now exercise this right in practice.
     • Geneva, 28 May 1962. (Signed) Roberto AGO, Chairman.