Report in which the committee requests to be kept informed of development - Report No 70, 1963

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

1. 145. The complaint of the I.C.F.T.U is contained in a communication addressed to the I.L.O on 23 May 1961. The Government forwarded its observations on the complaint by a communication dated 10 October 1961.
2. 146. Portugal has 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).

147. When the Committee examined the case at its meeting in May 1962 it submitted to the Governing Body the conclusions contained in its 65th Report, which was approved by the Governing Body on 29 June 1962, at the end of its 152nd Session. The recommendations of the Committee, contained in paragraph 88 of its 65th Report, were definitive with regard to most of the allegations. With regard, however, to certain allegations relating to the prohibition of strikes and to the denial of the right of association to indigenous workers in Portuguese Overseas Provinces, the Committee submitted an interim report, containing certain conclusions and requests for further information and observations which are cited below. The Government replied to this request by a communication dated 26 March 1963.

1. 148. The present report is confined to the allegations referred to in the preceding paragraph, these being the only allegations the examination of which has not already been concluded.
2. Allegations relating to Denial of the Right of Association to Indigenous Workers in Portuguese Overseas Provinces
3. 149. 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.
4. 150. The Government contended in its communication dated 10 October 1961 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 declared 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 ".
5. 151. At its meeting in May 1962 the Committee observed that, 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 would 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 was the Government's statement that the position in the Portuguese Overseas Provinces is in accordance with Article 15 of the Convention.
6. 152. 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 did not seem clear to the Committee. 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. It seemed necessary therefore to the Committee 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.
7. 153. In these circumstances the Committee 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 now enjoy the right to establish and join trade unions in law and whether they can now exercise this right in practice.
8. 154. In its communication dated 26 March 1963 the Government states that, as the result of the repeal of the Native Statute on 6 September 1961, the social legislation previously applicable only to persons other than those classified as natives has become applicable ipso jure to all workers in the Overseas Provinces. The Government draws 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 was not 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 applies to employment relations without distinction as to sex, race, origin or social condition.
9. 155. The Government declares that earlier legislative provisions excluding " natives" from the application of Legislative Decree No. 23050 respecting national trade unions no longer have 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 are now in force for all workers in the Overseas Provinces, whatever their origin, race or social condition. It is thus obvious, concludes the Government, that the right enjoyed by all inhabitants of the Overseas Provinces to establish legally and to join trade union organisations can be effectively exercised in practice.
10. 156. In these circumstances the Committee recommends the Governing Body to take note of the Government's statement that, since the repeal in September 1961 of Legislative Decree No. 39666 of 20 May 1954 (the " Native Statute "), 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 of 23 September 1933 respecting national trade unions are now in force for all workers in Overseas Portugal, whatever their origin, race or social condition.
11. Allegations relating to the Prohibition of Strikes under the Legislation of Portugal
12. 157. 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 Alentejo; after judgment these 14 workers were released because they had already been in prison for one year.
13. 158. The Government stated in its communication dated 10 October 1961 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 ".
14. 159. The Committee observed, at its meeting in May 1962, that it 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.
15. 160. 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, carries the maximum penalty.
16. 161. Labour courts were set up by Legislative Decree No. 24363 of 15 August 1934. As noted e 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.
17. 162. The Committee observed further, however, that the Government had stated, in its communication dated 10 October 1961, that the issue of additional provisions to safeguard further the position of the workers was then 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 that juncture to draw the attention of the Government to the principles which it considered should be borne in mind in this connection.
18. 163. In these circumstances the Committee recommended the Governing Body in paragraph 81 of its 65th Report:
19. ......................................................................................................................................................
20. (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 "
21. (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;
22. (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.
23. 164. Observing that the Government had 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 157 above), the Committee recommended the Governing Body to request the Government to furnish its observations on this aspect of the case.
24. 165. In its communication dated 26 March 1963 the Government states that the question of making further provision to safeguard the position of the workers (see paragraph 158 above) is still under examination. It was the subject of long discussion at the Second National Labour Conference of the Corporative and Social Welfare Organisation in October 1962, where the general consensus of opinion was that conciliation and arbitration machinery should be established, within the existing corporations, for the settlement of collective labour disputes. These conclusions were submitted to the Government and the best means of giving effect to them is now being considered.
25. 166. The Government states that the allegation that 48 workers were convicted of strike offences between October 1959 and February 1960 is not true. According to the Government 13 persons were tried by the Lisbon Criminal Court in that period, three being acquitted and ten being sentenced to three-and-a-half months' or 19 months' imprisonment, with suspension of their political rights for from three to five years. The Government declares that it was proved before the court that all these persons had been members of the illegal Portuguese Communist Party and that in 1958, after the presidential elections, they had attempted, for political purposes, to incite the rural and industrial workers to go on strike, had distributed subversive propaganda against the security of the State and had held clandestine meetings for the same purpose. Hence, concludes the Government, they were not convicted of striking in order to defend the trade union rights of the workers.
26. 167. The Government denies that the 14 Aljustrel miners (see paragraph 157 above) were held in prison for one year for having caused strikes in the mines, stating that they were arrested on 9 April 1960 and released on 11 July 1960 until their trial on 6 April 1961, when each was sentenced to three months' imprisonment (regarded as having been served during their preventive detention), with loss of political rights for three years. The Government adds that the disturbances in question took place while an inquiry by the labour inspectorate into the complaints of the mineworkers was being carried out.
27. 168. With regard to the legislative aspects of the matter already considered at its meeting in May 1962, the Committee notes the further information now furnished by the Government with regard to the examination of proposals to safeguard further the position of the workers in connection with the settlement of disputes. The Committee still feels, therefore, that, before 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 once again to the principles which it considers should be borne in mind in this connection.
28. 169. In these circumstances the Committee recommends the Governing Body:
29. (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 question of the issue of additional provisions to safeguard further the position of the workers was the subject of discussion at the Second National Labour Conference of the Corporative and Social Welfare Organisation in October 1962, which submitted certain conclusions to the Government concerning the establishment of conciliation and arbitration machinery, and that the best means of giving effect to those conclusions is now being considered;
30. (b) to draw the attention of the Government once again 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;
31. (c) to express again 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 still 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.
32. 170. It is now clear from the Government's latest reply that 14 workers at Aljustrel, in April 1961, and ten workers elsewhere, between October 1959 and February 1960, were sentenced to various terms of imprisonment for offences connected with striking or incitement to strike. In the latter case the Government maintains that the incitement to strike was occasioned by political motives and was also linked with other political activity of an unlawful and subversive character. In any event the prosecutions are related to the provisions noted above which make all strikes in Portugal the subject of penalties. The fact that strikes are indeed prohibited is one of the aspects of the present situation with regard to the procedure for the settlement of disputes in Portugal the examination of which, in substance, the Committee has deferred pending the outcome of the examination of the legislation now being conducted by the Government. It would seem appropriate, therefore, to recommend the Governing Body to take note of the fact that the Committee has deferred its further examination of the allegations relating to prosecutions for strike offences until the outcome of the said examination is known.
33. 171. In so doing, however, there is one aspect of the matter to which it is desirable to draw the attention of the Government while its examination of the legislation is still being undertaken.
34. 172. In its reply dated 26 March 1963 the Government states that, in respect of all the convictions for strike offences which have taken place, the sentences have carried with them the consequence of loss of political rights by the persons concerned for from three to five years. This has a special significance in Portugal. Under section 15 (1) of Legislative Decree No. 23050 of 23 September 1933 to reorganise the national trade unions, no person shall be a member of a union unless he is in full possession of his political rights; under section 15 (3) the same condition governs eligibility for membership of a union management committee.
35. 173. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to its view that the fact that a worker who has been convicted of an offence under the legislation relating to strikes loses his political rights, with the result that he may not be a member of a trade union or a member of its management committee, is incompatible with the generally accepted principles that workers without distinction whatsoever should have the right to join organisations of their own choosing, that workers' organisations should have the right to elect their representatives in full freedom and that the law of the land should not be such as to impair, nor should it be so applied as to impair, the enjoyment of those rights.

The Committee's recommendations

1. 174. In all the circumstances the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to denial of the right of association to indigenous workers in Portuguese Overseas Provinces, to take note of the Government's statement that, since the repeal in September 1961 of Legislative Decree No. 39666 of 20 May 1954 (the " Native Statute "), 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 of 23 September 1933 respecting national trade unions are now in force for all workers in Overseas Portugal, whatever their origin, race or social condition;
   • (b) with regard to the allegations relating to the prohibition of strikes which are not outside the competence of the Committee, in so far, but only in so far, as they affect the exercise of trade union rights:
   • (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 question of the issue of additional provisions to safeguard further the position of the workers was the subject of discussion at the Second National Labour Conference of the Corporative and Social Welfare Organisation in October 1962, which submitted certain conclusions to the Government concerning the establishment of conciliation and arbitration machinery, and that the best means of giving effect to those conclusions is now being considered;
   • (ii) to draw the attention of the Government once again 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 again 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 still 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 note that the Committee has deferred its further examination of the allegations relating to prosecutions for strike offences until the outcome of the examination referred to above is known;
   • (v) to draw the attention of the Government, however, to its view that the fact that a worker who has been convicted of an offence under the legislation relating to strikes loses his political rights, with the result that he may not be a member of a trade union or a member of its management committee, is incompatible with the generally accepted principles that workers without distinction whatsoever should have the right to join organisations of their own choosing, that workers' organisations should have the right to elect their representatives in full freedom and that the law of the land should not be such as to impair, nor should it be so applied as to impair, the enjoyment of these rights.