Interim Report - Report No 129, 1972

Case No 654 (Portugal) - Complaint date: 18-DEC-70 - Closed

1. 147. The case was last examined by the Committee at its 58th Session (May 1971), when it submitted to the Governing Body an interim report which is contained in paragraphs 66 to 92 of its 125th Report.
2. 148. At its 59th Session (November 1971) the Committee adjourned its examination of the case as the information which it had requested from the Government arrived too late for the Committee to be able to examine it in detail.
3. 149. The Government communicated its replies to the Committee's request in a letter dated 29 October 1971.
4. 150. Portugal has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but not the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. A. The complainants' allegations

• Allegations relating to the Suspension from Office of Trade Union Officers
  151. 151 At its meeting in May 1971 the Committee had requested the Government to supply copies of the judgements in the appeal to the Supreme Administrative Tribunal of the three trade union officers who had been suspended from their functions in the National Union of Technicians, Metallurgists and Metalworkers of the Lisbon District (viz. Antonio dos Santos Junior (Chairman), Carlos Augusto das Neves Alves (Secretary) and Luis Manuel Ferreira Faustino (Treasurer)), and the grounds upon which these judgements were based (paragraph 92 (a) (ii) of its 125th Report).
  152. 152 In this connection, it will be recalled that the complainants had alleged that the suspension from office of these trade union officers was one instance of the manner in which trade union officers could be dismissed under the provisions of Legislative Decree No. 502/70. The Committee had noted that, under this law, suspension of a trade union officer could be ordered by a judicial authority following a request by the National Institute of Labour and Social Welfare. It observed, however, that the sole function of the judge was to issue an order of suspension on receipt of such a request after ensuring that the administrative inquiry carried out by the inspectorate had been fulfilled, and that the judicial authority could not, apparently, review the grounds for the suspension. The Committee accordingly took the view that such judicial control was inadequate to ensure an impartial and objective procedure in the case of suspension of trade union officers.
  153. 153 The Government refers, in its communication dated 29 October 1971, to section 2 of Legislative Decree No. 502/70 concerning the removal from office of trade union officers who do not fulfil the eligibility requirements laid down in section 15 of Legislative Decree No. 23050 of 23 September 1933, as amended by Legislative Decree No. 49058 of 14 June 1969. In addition, the Government points out that the procedure for the suspension of trade union officers, as provided for in Legislative Decree No. 502/70, must of necessity be carried out as speedily as possible but that, in any case, the persons concerned do not cease to be guaranteed appropriate means of defence and the possibility of registering their opposition. The Government adds that even where the suspension is requested by the Institute of National Labour and Social Welfare, the judge may not issue an order without carrying out a preliminary inquiry to ascertain the identity of the official concerned, the eligibility requirements with which he has failed to comply, and the facts and circumstances of the case.
  154. 154 The Committee observes that the complaints contain no allegations concerning section 2 of Legislative Decree No. 502/70 relating to the procedure for the dismissal of trade union officers who do not fulfil eligibility requirements. The allegations formulated by the complainants relate to sections 3, 5, 6 and 7 of this Decree, which deal with requests either by a member of the trade union organisation or by the Institute of National Labour and Social Welfare for the suspension of a trade union officer on the grounds that he has seriously impaired his rights, or the rights, interests or principles which the organisation must respect, further or defend, and the procedure for such suspension. In such cases questions other than those concerning eligibility are involved and the procedure following thereon would appear to be different from that applicable in dismissals sought under section 2 of the Decree. The Committee notes the Government's statement that, in cases of requests for the suspension of a trade union officer, the person concerned is guaranteed the means of defence and the possibility of registering his opposition. The terms of section 7 of the Decree, however, make it clear that while the trade union official may file an appeal against the decision of the judge to suspend him from office, this may be done only on the grounds that the formal requirement laid down in section 5 (inquiry to be carried out by the Inspectorate of Corporate Organisations) has not been complied with. Further, the Government's statement that the judge must carry out a preliminary inquiry before issuing any order would appear to relate to the procedure under section 2 of the Decree, and not to the procedure for suspension of a trade union official requested by the Institute, where the judge must order the suspension within 48 hours, provided the formal requirement of section 5 has been fulfilled.
  155. 155 The Government also states in its communication dated 29 October 1971 that, as regards the three trade union officers mentioned in the complaint, the proceedings began on 13 November 1970, when the trade unionists were called upon to take cognisance of an order of suspension which had been pronounced by the Judge of the Sixth Division of the Labour Court of Lisbon. The trade unionists opposed this judgement but, states the Government, this opposition was judged to be unfounded. The Government adds that after the expiry of the statutory time-limit, the Institute of National Labour and Social Welfare initiated proceedings for their removal from office. The defendants, according to the Government, replied within the time-limit, but without having observed the necessary formalities, and judgement was consequently pronounced immediately. An appeal against this judgement was now, states the Government, pending before the Supreme Administrative Tribunal.
  156. 156 The Committee continues to be of the opinion that the provisions of Legislative Decree No. 502/70 concerning the suspension of a trade union officer and the procedure involved, in so far as these provisions appear to permit of the suspension from office of a trade union officer by a judge upon receipt of a request from the Institute and upon confirmation that the formality of an administrative inquiry has been fulfilled, do not provide adequate judicial control to ensure an impartial and objective procedure in the case of the suspension of trade union officers.
  157. 157 In these circumstances, the Committee recommends the Governing Body to draw the attention of the Government to the above considerations and to point out once again the desirability of reconsidering the legislation concerning the suspension or dismissal from office of trade union officers, in order to safeguard the right of workers to elect their representatives in full freedom as well as the right of trade unions to organise their administration and activities. The Committee also recommends the Governing Body to request the Government to supply the texts of the various judgements already issued by the Labour Court in the case of the three trade union officers mentioned in paragraph 152 above, as well as the text of the judgement of the Supreme Administrative Tribunal as soon as it is available, together with the grounds on which these judgements were based.
• Allegations relating to Collective Bargaining
  158. 158 When the Committee previously examined the allegations by the complainants concerning collective bargaining, and the observations thereon by the Government, it concluded that the principle as regards the requirement of ministerial approval before a collective agreement could come into force, reaffirmed by Legislative Decree No. 492/70, and the grounds on which such approval might be refused (viz. the existence in an agreement of a clause which interfered with " the right reserved to the State to co-ordinate and have the over-all control of the economic life of the nation " (section 3 of Legislative Decree No. 49212)) involved the risk of seriously restricting the voluntary negotiation of collective agreements. The Committee also pointed out to the Government the desirability of examining the possibility of reducing the period laid down by Legislative Decree No. 49212, as amended by Legislative Decree No. 492/70 (up to 105 days), within which employers must reply to workers' claims as well as for the conclusion of collective agreements (six months, which may be extended for another six months at most), in order to encourage and promote the development of voluntary negotiation.
  159. 159 With regard to the requirement of ministerial approval, the Government states that it considers the explanations previously given by it in this connection to be sufficiently clear and precise; in its opinion, the existence of such a requirement is understood to be permitted, or at least not prohibited, by Convention No. 98. As for the statutory time-limits within which employers must reply to workers' claims and for the conclusion of collective agreements, the Government states that experience to date has not shown that it would be advisable to shorten these.
  160. 160 It is only in exceptional cases, states the Government, that the time-limit of 45 days-being the time-limit for replying to a proposal for the conclusion or revision of a collective agreement-may be extended by agreement with the party initiating the proposal or, failing agreement, by decision of the Institute of National Labour and Social Welfare. This possibility is designed to meet the needs of collective bargaining by allowing time to invite bodies with similar or identical interests to take part in the negotiations. Furthermore, adds the Government, although there is a time-limit of six months for the conclusion of a collective agreement either party may request conciliation proceedings, which may not exceed 60 days. If the matter is not settled at that stage it goes to arbitration; the final decision must be issued within 60 days, a time which in exceptional cases may be extended by a like period.
  161. 161 The Committee notes the comments made by the Government in this connection. The Committee, however, can only emphasise that, as regards the requirement of ministerial approval before a collective agreement can come into effect, such a requirement is not in full conformity with the principles of voluntary negotiation laid down in Convention No. 98. The Committee has pointed out on a number of occasions in the past that, in the case of certain collective agreements the terms of which appear to conflict with considerations of general interest, it might be possible to envisage a procedure whereby the attention of the parties could be drawn to these considerations to enable them to examine the matter further, it being understood that the final decision thereon should rest with the parties. The setting up of a system of this kind would be in conformity with the principle that trade unions should enjoy the right to endeavour to improve, by means of collective bargaining, the conditions of living and of work of their members and that the authorities should abstain from any interference which might limit this right. The Committee accordingly recommends the Governing Body to draw the attention of the Government to the above considerations and to emphasise that any requirement of ministerial approval before a collective agreement can come into effect is not in full conformity with the principles of voluntary negotiation laid down in Convention No. 98.
  162. 162 With regard to the statutory time-limits within which employers must reply to proposals by workers and within which collective agreements must be concluded, the Committee regrets that the Government is of the opinion that it would not be advisable to shorten these. The Committee can only recommend the Governing Body to express once again the view that it would be desirable for the Government to examine the possibility of reducing the above-mentioned periods in order to encourage and promote the development of voluntary negotiation.
• Allegations relating to Freedom of Assembly
  163. 163 When the Committee, at its session in May 1971, examined the allegations formulated by the complainants relating to the right of freedom of assembly (125th Report, paragraphs 89 to 91), it requested the Governing Body to draw the attention of the Government to the principle that the right to hold meetings is an integral part of the right of trade unions to function freely and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. It also requested the Governing Body to ask the Government for detailed information concerning the circumstances which, in the Government's view, justified the refusal to authorise the meetings referred to in the complaint.
  164. 164 At its session in May 1971 the Committee took note of certain circulars, issued by the Bank Employees' Union and the National Union of Commercial Employees, containing the text of a communication giving specific examples of cases where trade unions had been prohibited from exercising their right of assembly. This communication had been sent to the Minister of Corporations and Social Welfare, among other authorities, and stated that on 30 and 31 August 1970, and again on 6 September 1970, the Wool Products Trade Union of Lisbon had been prevented by the authorities from holding a meeting with its members to discuss the terms of a proposed collective agreement. On 8 September 1970 the National Union of Commercial Employees was prevented by the authorities from holding a meeting it had arranged for 11 September. The Committee had also been informed that on 10 October 1970 the Governor of Lisbon had prohibited a general meeting called by the Metalworkers of Lisbon to discuss the revision of a collective agreement. In all these cases the meetings, according to the complainants, had been called by the established executive bodies of the unions in question. Further, according to the complainants, the authorities exercised pressure on the owners of the premises in which the meetings were to be held to induce them to withdraw contracts of lease which they had already signed with the unions concerned.
  165. 165 In its communication dated 29 October 1971, the Government stresses that it is a matter for the Government to decide whether meetings, including trade union meetings, may in special circumstances endanger public order and security. The Government indicates that in the cases where the meetings were prohibited, those meetings had been convened by bodies which were not competent to do so, and that it was intended to admit persons who had no connection with the organisations which intended holding the meetings. The Government also suggests that attempts were made to hold meetings outside the headquarters of the organisations in question without having given 48 hours' notification to the competent administrative authority. Such notice was compulsory to ensure that adequate precautions might be taken to control crowds and traffic, since the meetings in question were timed to coincide with the beginning and end of theatre and cinema performances.
  166. 166 The Committee regrets that the Government, in its communication, makes no specific reply to the concrete allegations supplied by the complainants concerning cases where meetings of trade unions were prohibited. From these allegations it appears to the Committee that the meetings in question were convened by the established executive bodies of the trade unions concerned, that the purpose of these meetings was the discussion of legitimate trade union matters, and that in at least one case the authorities were aware in advance that a trade union meeting was to take place. The Committee also understands from the information at its disposal that arrangements had been made by the unions concerned to lease premises in which the meetings were to take place.
  167. 167 In view of these considerations, and in the absence of specific replies by the Government to the factual charges made, the Committee can only recommend the Governing Body to regret the interference by the authorities in the holding of the meetings referred to in the complaint and to draw once again the attention of the Government to the principle that freedom from government interference in the holding and proceedings of trade union meetings constitutes an essential element of trade union rights and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.

The Committee's recommendations

1. 168. In all these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to the suspension from office of trade union officers;
   • (i) to draw the attention of the Government to the considerations set out in paragraph 156 above and to point out once again the desirability of reconsidering the provisions of Legislative Decrees Nos. 502/70 and 49058/69 concerning the suspension or dismissal from office of trade union officers, in order to safeguard the right of workers to elect their representatives in full freedom as well as the right of trade unions to organise their administration and activities;
   • (ii) to request the Government to supply the texts of the various judgements already issued by the Labour Court in the case of the three trade union officers mentioned in paragraph 151 above, as well as the text of the judgement of the Supreme Administrative Tribunal as soon as it is available, together with the grounds on which these judgements were based;
   • (b) with regard to the allegations relating to collective bargaining:
   • (i) to draw the attention of the Government to the considerations set forth in paragraphs 161 and 162 above, to emphasise that any requirement of ministerial approval before a collective agreement can come into effect involves a risk of limiting the full development and utilisation of voluntary negotiation laid down in Convention No. 98 and to stress the principle that, in any procedure established by law concerning collective bargaining, the parties to the agreement should be free to take the final decision in the matter;
   • (ii) to express once again the view that it would be desirable for the Government to examine the possibility of reducing the periods within which employers must reply to proposals by workers and within which collective agreements must be concluded, in order to encourage and promote the development of voluntary negotiation;
   • (c) with regard to the allegations regarding freedom of assembly: in view of the considerations set forth in paragraphs 166 and 167 above, to draw once again the attention of the Government to the principle that freedom from government interference in the holding and proceedings of trade union meetings constitutes an essential element of trade union rights, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof; and
   • (d) to take note of the present interim report, it being understood that the Committee will submit a further report to the Governing Body when it has received the information requested in subparagraph (a) (ii) of this paragraph.