Interim Report - Report No 125, 1971

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

1. 66. The complaints are contained in two communications addressed to the Director-General of the ILO by the International Confederation of Free Trade Unions (ICFTU) and the World Federation of Trade Unions (WFTU) dated 18 December 1970 and 8 January 1971 respectively. A number of documents were enclosed with the communication of the ICFTU in support of its complaint. The texts of these communications were forwarded to the Government of Portugal, which, in a communication dated 24 April 1971, sent its observations on the allegations contained in the complaints.
2. 67. 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).
3. 68. Further, the Committee examined the comments furnished by the Government concerning the recommendations adopted by the Governing Body in Case No. 266 (Portugal), contained in the 113th Report of the Committee. The observations of the Committee regarding these comments are to be found as an appendix to the present report.

A. A. The complainants' allegations

• Allegations relating to the Suspension from Office of Trade Union Officers
  69. 69 In its communication of 18 December 1970 the ICFTU criticised the provisions of Legislative Decree No. 502/70 (published on 14 October 1970), especially those concerning the suspension and removal from office of trade union officials, stating that these provisions ran counter to the conclusions reached by the Committee when it examined the trade union situation in Portugal in the context of Case No. 266 (see 113th Report, paragraphs 73-75). This Decree, added the complainants, was promulgated as a regulation under Legislative Decree No. 49058 (promulgated on 28 May 1969). On 15 November 1970, the complaint continued, a number of Portuguese unions sent a note to the Prime Minister containing criticisms of certain provisions of Legislative Decree No. 502/70. Exception was taken by these unions to the provisions contained in the following sections of this enactment: section 3, which provides that when a member of a trade union organisation, or the National Institute for Labour and Social Welfare, has grounds to believe that an officer of the trade union organisation has seriously impaired his rights or the rights, interests or principles which the organisation must respect, further or defend, he (it) may request the labour court to suspend that officer until a final judicial decision is given on the removal of the officer; section 5, which provides that if the suspension is requested by the National Institute for Labour and Social Welfare such a request must be preceded by an inquiry carried out by the Inspectorate of Corporate Organisations; section 6, providing that the judge must order the suspension within 48 hours if the formal requirement of section 5 has been fulfilled; section 7, which establishes that the trade union official may file an appeal against the decision to the same judge, but only on the grounds that the formal requirement has not been fulfilled. In the above-mentioned note the unions alleged that these provisions gave the administrative authorities scope for excessive intervention in the judicial field. The judge, they claimed, was required to reach his decision without being able to inquire into the substance of the complaint against the trade union official concerned.
  70. 70 A specific instance of dismissal of trade union officials was cited both by the ICFTU and the WFTU. This case concerned the National Trade Union of Technicians, Metallurgists and Metal Workers of the Lisbon district, which, on 8 June 1970, elected a new executive. Among the new directors were Antonio dos Santos Junior (Chairman), Carlos Augusto das Neves Alves (Secretary) and Luis Manuel Ferreira Faustino (Treasurer). On 13 November 1970, the complaint continues, the Labour Tribunal suspended these three persons, the pretext being that they had refused to sign a collective agreement with the Portuguese Air Transport Company, negotiated by the previous executive. Furthermore, they were accused of having issued a communiqué destined for persons employed by the above airline company, the language used having been full of " class spirit ", and running counter to the corporative principles on which the Portuguese State reposes.
  71. 71 In this connection the ICFTU communicated copies of a memorandum from the Ministry of Corporations and Social Welfare addressed to the press and dealing with this matter, a reply to this memorandum signed by the three suspended officers and a communiqué published by the national union concerned. In its communication of 8 January 1971 the WFTU referred to this incident, adding that the reason behind the offensive on the part of the Portuguese Government was that the metal workers, through their union, had submitted the draft of a new contract of employment on account of the continual deterioration in their living and working conditions, and the Government had not agreed to the workers' proposals. Both complainants state that the action of the Government constituted a flagrant breach of the principles of freedom of association.
  72. 72 In its communication dated 24 April 1971 the Government contended that the assertion that Portuguese trade union legislation permitted the removal from office of trade union officers by administrative authority was manifestly erroneous. In fact, stated the Government, subsections 5 and 6 of section 21 of Legislative Decree No. 23050, as amended by Legislative Decree No. 49058, explicitly vest exclusive competence in this respect in the labour courts, and the procedure is entirely in conformity with Article 4 of Convention No. 87 since the parties concerned are afforded all the guarantees inherent in normal judicial proceedings. Hence, the Government continued, officials suspended as a precautionary measure by the labour courts are entitled to appeal to the Supreme Administrative Tribunal.
  73. 73 With regard to the case of the suspension of the three officers of the National Trade Union of Technicians, Metallurgists and Metal Workers of the Lisbon district, the Government stated that the officers in question were becoming dissociated from the membership of the union and were in fact engaged in subversive activities, having been found in possession of a memorandum calling for revolutionary action. The suspension of these officers was ordered by the competent labour court and the proceedings for their removal from office were at present the subject of an appeal to the Supreme Administrative Tribunal. The Government stated that the judgments handed down in respect of these proceedings would, in due course, be made known to the Committee.
  74. 74 The Committee had previously observed (113th Report, paragraph 74) that section 21 of Legislative Decree No. 23050, as amended, provided for the suspension and dismissal of members of the governing body of a union through an action brought before the appropriate labour tribunal by any member of the union or by the National Institute of Labour and Social Welfare. Such actions, it noted, could be brought only on the ground that the member in question had violated the provisions of Legislative Decree No. 49058, more particularly section 20 and section 10, which provide, inter alia, that trade unions shall carry on their activities at the national level while respecting " the higher interests of the nation and the common good ". The Committee, on this question, had recommended the Governing Body to draw the attention of the Government to the desirability of deleting the provisions of section 10 in view of the fact that they were drafted in terms so wide that they failed to afford any precise criteria for judicial decision (paragraph 170 (c) (ii) of the 113th Report).
  75. 75 The Committee notes the Government's explanation that such a provision must be interpreted and understood within the context of the basic provisions governing the organisation of the economic and social system of Portugal and the principles upon which this is based. The Government states that a provision such as that referred to above does no more than place trade union activities within the context of the principles enshrined in the Constitution and the National Labour Code, which serve as a basis for the interpretation of the law and for court proceedings. Furthermore, states the Government, " it does not appear possible to view national unity otherwise than as a simple unity of purpose, a welding together of actions and relations oriented towards the common good of the nation, and it is in this sense that the reference made in section 1 of the National Labour Code to the aims and interests of the nation should be construed ". " In particular, " adds the Government " as far as the corporative system is concerned it is of interest to draw attention on the one hand to the autonomy of the corporative bodies vis-à-vis the State, and on the other hand to the existence of a power of co-ordination which, acting to a certain extent as a counterweight to this autonomy, makes it possible for the State to unite the efforts of all for the benefit of the common good of the nation."
  76. 76 The Committee observes that where the suspension of trade union officers is required by the National Institute of Labour and Social Welfare, such suspension is ordered by a judicial authority. This authority, however, apparently cannot review the grounds for the suspension as established by an administrative inquiry carried out by the inspectorate. It would seem that the sole function of the judge is to issue the order of suspension upon receipt of the request from the Institute together with the results of the inquiry. His role would therefore appear to be confined to ensuring that the formality of the inquiry has been fulfilled.
  77. 77 The Committee has taken the view in the past that the principles established in Convention No. 87 do not prevent supervision or control of the internal acts of a trade union to ascertain whether those internal acts violate the law of the land; at the same time the law of the land must not be such as to infringe the principles of freedom of association. However, the Committee has also considered that it is of the greatest importance that, in order to guarantee an impartial and objective procedure, control should be exercised by the relevant judicial authority. In view of the circumstances set out in the preceding paragraph the Committee is of the opinion that in the present case such judicial control is inadequate in respect of the suspension of trade union officers.
  78. 78 In addition, the Committee considers that the legislation should contain provisions which lay down criteria sufficiently precise to enable the judicial authority to determine whether a trade union officer has been guilty of such acts as would justify his suspension or dismissal from office. The Committee continues to believe that provisions such as those contained in section 10 of Legislative Decree No. 49058 are vague and afford no such precise criteria for objective judicial decision.
  79. 79 In these circumstances, the Committee recommends the Governing Body to draw the attention of the Government to the above considerations and to point out 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.
  80. 80 In the case of the appeal proceedings taken by the three trade union officers of the National Trade Union of Technicians, Metallurgists and Metal Workers of the Lisbon district to the Supreme Administrative Tribunal, the Committee recommends the Governing Body to request the Government to supply copies of the judgments in this case with statements of the grounds upon which these judgments are based.
• Allegations Relating to Collective Bargaining
  81. 81 The ICFTU alleged in its communication that, on 15 November 1970, twenty-three Portuguese trade unions met in general assembly to consider Legislative Decree No. 492/70 (published on 22 October 1970) which, the complainants stated, was promulgated to fill the gaps and shortcomings in Legislative Decree No. 49212 concerning the conclusion of collective agreements. Its provisions, the complaint alleged, virtually eliminate all freedom in the negotiation of collective contracts. The complaint added that the assembly's comments on this legislation were sent to the Minister of Corporations and Social Welfare on the same day (15 November 1970). A copy of these comments was enclosed with the complaint. Both these decrees, stated the complainants, represented an interference by the State in the free negotiation of collective agreements and, in both the letter and the spirit, ran counter to Convention No. 98, ratified by Portugal. The WFTU in its letter dated 8 January 1971 also referred to the restriction of the right to bargain collectively due to the fact that the National Labour and Social Welfare Institute continued to bring inadmissible pressure to bear upon the parties. Recently, the complaint alleged, the time limits to be observed in the renewal of collective agreements had been extended, thereby giving the Government further scope to intervene. The requirement that all agreements should be approved by the Ministry before they could be enforced conferred upon the Ministry the authority to decide whether an agreement was valid or not.
  82. 82 Amongst the comments submitted to the Ministry by the trade unions' assembly mentioned above were allegations concerning the requirements of administrative approval for collective agreements. It was also alleged that under section 12 of Legislative Decree No. 49212, as amended, a maximum of 105 days was allowed for employers to reply to claims made by workers. When this reply was received the collective bargaining process must be concluded within six months, although this period could be extended by a further period not exceeding six months by the National Institute of Labour and Social Welfare.
  83. 83 In its reply the Government stated that section 10 of Legislative Decree No. 49212 (as amended by Legislative Decree No. 492/70 of 22 October 1970) provided that " the National Labour and Social Welfare Institute may render any necessary assistance to the parties involved in the conclusion of a collective agreement or its revision, or to the bodies responsible for conciliation and arbitration, in particular with respect to legal assistance and the study and analysis of statistical data and indices of cost-of-living trends ". It was in this light, stated the Government, that one should view its intervention, which took place only at the request of the parties concerned and did not restrict their freedom of action in any way. As for the possibility of extending the time limits to be observed in negotiations and for the issue of arbitration awards, the Government added that provision for such a possibility was made in the legislation of most countries.
  84. 84 In its reply the Government also stated that, as regards the approval of collective agreements by the Minister, under municipal law this practice continued to be adopted since it was indispensable for the purposes of the registration and publication of collective agreements. Similar provisions, contended the Government, were to be found in the legislation of other countries. In any case, added the Government, the requirement of ministerial approval never empowered the Minister to replace or amend texts that had been freely agreed upon by the parties.
  85. 85 Should approval of a collective agreement prove to be impossible by reason of some irregularity or inequity therein, the National Labour and Social Welfare Institute could return the agreement for amendment, or if the agreement contained any illegalities the Government might be obliged to issue a ministerial order regulating the work in question. Where the Government had recourse to issuing regulations or orders it always endeavoured, stated the Government, to align the terms it used with those agreed upon or set forth in conciliation awards which were the most favourable to the workers. The refusal to approve an agreement, the Government added, could always be appealed against to the Supreme Administrative Tribunal.
  86. 86 The Committee notes with interest the explanations supplied by the Government in this connection. The Committee notes, however, that Legislative Decree No. 492/70 reaffirms the principle established by the previous legislation as regards the requirement of ministerial approval in order that a collective agreement may come into force. It also notes that section 3 of Legislative Decree No. 49212 establishes as a ground for refusing approval the existence in a collective agreement of a clause which interferes with " the right reserved to the State to co-ordinate and have the over-all control of the economic life of the nation ". In the opinion of the Committee, such a provision involves the risk of seriously restricting the voluntary negotiation of collective agreements.
  87. 87 Moreover, considering that, in Portugal, workers are unable to go on strike in support of their claims, the Committee is of the opinion that it would be desirable for the Government to examine the possibility of reducing the period within which employers must reply to workers' claims, as well as the period laid down for the conclusion of collective agreements, in order to encourage and promote the development of voluntary negotiation.
  88. 88 The Committee accordingly recommends the Governing Body to draw the attention of the Government to the above considerations and to invite the Government to consider the possibility of amending its legislation in order to encourage the full utilisation of machinery for voluntary collective bargaining.
• Allegations relating to Freedom of Assembly
  89. 89 In its communication of 18 December 1970 the ICFTU alleged that action had been taken by the authorities to prevent trade unions from holding meetings. It stated that, at the general assembly referred to above, consideration was given to the decision of the authorities to prevent the holding of assemblies and meetings convened, in accordance with the law and with their statutes, by several trade unions. A letter of protest, stated the complainants, was accordingly signed and sent to the Prime Minister. A copy of this letter was also enclosed with the communication of the complainants. Copies were also sent of circulars issued by the Bank Employees' Union and National Union of Commercial Employees of the Lisbon district protesting against the action taken by the authorities to prevent a number of trade union organisations from holding meetings. These circulars contained the text of communications addressed, inter alia, to the Minister of Corporations and Social Welfare, giving specific examples of cases where these trade union organisations were prohibited by the authorities from exercising their right of assembly. The banning by the authorities of meetings and assemblies convened by unions to discuss conditions of life and work was, the complaint alleged, yet another breach of Convention No. 87.
  90. 90 The Government, in its reply to this aspect of the complaint, stated that where the authorities had intervened to authorise in advance the holding of assemblies, they had done so in accordance with the general provisions governing all public meetings. In doing so, added the Government, the authorities fully respected the principles of freedom of association. Governments were required to decide whether, in certain circumstances, meetings-including trade union meetings-might constitute a threat to public order and security and to take such precautionary measures as they considered appropriate.
  91. 91 The Committee has often in the past expressed the view that the right to hold meetings in freedom 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. In recommending the Governing Body to draw the attention of the Government to this principle, it also recommends the Governing Body to request the Government to supply detailed information concerning the circumstances which, in the Government's view, justified the refusal to authorise the trade union meetings referred to in the complaint.

The Committee's recommendations

1. 92. In all these circumstances, 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 paragraphs 77 and 78 above, and to point out the desirability of reconsidering the legislation concerning the suspension or dismissal from office of trade union officers, in order to avoid the danger of serious limitations on 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 copies of the judgments in the appeal to the Supreme Administrative Tribunal of the three trade union officers of the National Trade Union of Technicians, Metallurgists and Metal Workers of the Lisbon district, with statements of the grounds upon which these judgments are based;
   • (b) with regard to the allegations relating to collective bargaining,
     • to draw the attention of the Government to the considerations set out in paragraphs 86 and 87 above, and to invite the Government to consider the possibility of amending its legislation in order to encourage the full utilisation of machinery for voluntary collective bargaining;
   • (c) with regard to the allegations relating to freedom of assembly,
   • (i) 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;
   • (ii) to request the Government to supply detailed information concerning the circumstances which, in the Government's view, justified the refusal to authorise the meetings referred to in the complaint;
   • (d) to take note of this interim report, it being understood that the Committee will submit a further report once it has received the additional information requested from the Government under clauses (a) (ii) and (c) (ii) of this paragraph.
     • Geneva, 26 May 1971. (Signed) Roberto AGO, Chairman.

Z. ANNEX

• APPENDIX
• Case No. 266 (Portugal)
  1. 1 In its 113th Report, entirely devoted to its last examination of Case No. 266 (Portugal), the Committee re-examined the trade union situation in Portugal in the light of new legislation which had recently been promulgated, dealing with the matter essentially under the same chapter headings as had been used in connection with the original complaint presented by the International Confederation of Free Trade Unions in 1961
  2. 2 In its 113th Report the Committee took up each of the points arising out of its earlier examinations, recalling the allegations made and the Government's replies with respect thereto, recalling also the conclusions it had reached on earlier occasions, assessing the implications of the changes in the legislation and making observations and recommendations.
  3. 3 By a communication dated 1 May 1970 the Government furnished its comments upon the observations made and the conclusions reached by the Committee concerning each of the questions raised. These comments are analysed below.
  4. 4 It should however be pointed out before proceeding further that throughout its reply the Government insists upon the fact that it is not bound by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which it has not ratified, but only, in this connection, by the general principles embodied in the Declaration of Philadelphia.
  5. 5 The Government declares, inter alia, in this respect that " since it has already been shown that Portuguese legislation does, in fact, respect the principles proclaimed in Philadelphia, there can be no reason to consider the complaint any further, on the grounds that the system adopted in Portugal is not that expressly provided for in a Convention (not ratified by Portugal) used solely for purposes of comparison ".
  6. 6 It would appear to be desirable at this point for the Committee to clear up what seems to be a misunderstanding. It was not in fact the intention of the Committee in its 113th Report to accuse Portugal of failure to carry out international obligations formally incumbent upon it under ratified Conventions. It endeavoured to evaluate the situation which existed in law and in practice and to indicate the measures which in its view needed to be taken to ensure full respect for freedom of association by Portugal, basing its conclusions on criteria deriving from the generally accepted principles on the subject.
  7. 7 It should be recalled in this connection that the Committee has always considered that it should, in discharging the responsibility which has been entrusted to it to promote the principles embodied in the Declaration of Philadelphia " 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 ".
  8. 8 It is in the spirit indicated in the two preceding paragraphs that the Committee has examined in the past the case which it has before it, and it is in this spirit also that it intends to pursue its examination. It feels bound to recall in this connection that it was precisely in order to supplement the machinery of supervision established with a view to ensuring the application of ratified Conventions that it was decided to institute special machinery, of which the Committee on Freedom of Association is an essential element and which - following the principle that " the function of the International Labour Organisation in regard to trade union rights is to contribute to the effectiveness of the general principle of freedom of association as one of the primary safeguards of peace and social justice " - is empowered to examine complaints relating to freedom of association lodged against States Members of the Organisation, whether they have ratified the Conventions relating to it or not.
  9. 9 Under these circumstances, and in view of the fact that the Government has furnished its observations on the substance of the case, the Committee feels it appropriate, in the light of the considerations set forth above, to resume its examination of the case.
• Examination of the Substance of the Case
  • (a) Restriction of the Number of Trade Union Organisations That May Be Formed
    10. 10 When it last examined the case the Committee reached the following conclusions in respect of this point:
  • ...the Committee recommends the Governing Body:
  • (a) to take note that the legislation has been modified in the following respects:
  • (i) the provisions of section 1 of Legislative Decree No. 23050 whereby a trade union could be established only by more than 100 workers engaged in the same profession have been deleted;
  • (ii) the provisions of section 3 have been amended so as to make it possible for trade unions to extend their geographical coverage beyond a district;
  • (iii) section 3 has been further amended in such a way as to make it possible for one trade union to represent more than one occupation in the same district or for two or more trade unions to represent the same occupation in the same district;
  • (b) to draw the attention of the Government to its view that in order to give effect to the generally accepted principle that workers should have the right to establish and join organisations of their own choosing without previous authorisation it would be necessary to take the following steps:
  • (i) to delete the provisions in section 3 whereby the approval of a government agency must be obtained before either one trade union may represent more than one occupation in the same district or two or more trade unions may represent the same occupation in the same district;
  • (ii) to remove the restrictions imposed on trade unions in section 4 whereby only those of a certain minimum size and financial solvency may legally exist.
    11. 11 In its observations the Government stresses that the principle of freedom of association, as enshrined in the Declaration of Philadelphia, " would not seem to provide grounds for requirements of the kind recommended by the Committee, since the Declaration nowhere lays down as a general rule that there must be no regulation of trade union affairs, and since the principle in question is in no wise affected by the legislation in force ".
    12. 12 In answer to point (b) (i), quoted above, the Government points out that section 3 of Legislative Decree No. 23050, as amended, expressly requires that attention be paid to " the will of the workers, clearly manifest ", and demands for this purpose that " those concerned be given a hearing ". Accordingly, in the Government's view, intervention by the National Institute of Labour and Social Welfare is necessary to prevent the whole system from falling into disorder as would happen " if other interests were not at the same time taken into consideration". The trade unions, states the Government, are part of a complicated corporative structure within which workers and employers have to be given equal representation. It adds that in addition trade unions have public responsibilities which should be safeguarded when parallel bodies are established. Lastly, the Government declares that it is through intervention by the National Institute of Labour and Social Welfare that the Government can protect the unions against possible interference from employers' organisations.
    13. 13 As for section 4, the Government declares that " this contains, not a restriction, but a requirement of an almost formal kind, designed to ensure that the workers are effectively represented ". In the Government's view such a clause in no way restricts organisation on the basis of occupations, since subsections 2 and 3 render possible the setting up of nuclei organised in whatever manner those concerned may feel most suitable, with the added advantage of enjoying common services. " In brief, " declares the Government " this is a system the possibility of which is provided by law to make the organisation of workers easier and not more difficult, and to ensure that such associations enjoy financial independence ".
    14. 14 The concluding paragraph of the Government's observations on this aspect of the case is worded as follows: " The Portuguese Government has now begun consideration of the first reports on the results achieved by this new legislation, so different from that previously in force. It takes the view that there is no call whatever for any change in the new system, which allows full freedom of association ".
    15. 15 As concerns those of the Government's comments analysed in paragraph 12 above, it is indeed conceivable that the corporative system in operation in Portugal might make necessary some kind of supervision on the part of the National Institute of Labour and Social Welfare so as to ensure that the machinery functions in the manner and for the purposes intended. While all the effects of the system are not necessarily harmful (in particular as concerns protection against interference from employers' organisations), the Committee observes nevertheless that the effect of the legislation in force is to make the forming of trade unions subject to prior authorisation from a government agency, which is inconsistent with the generally accepted principles of freedom of association.
    16. 16 With regard to those of the Government's observations analysed in paragraph 13, the Committee considers that measures designed to ensure the financial independence of trade unions can be evaluated only within the context of and in the light of the trade union system under which they operate. With this viewpoint in mind, the Committee feels bound to point out that, notwithstanding the provisions of subsections 2 and 3 of section 4, mentioned in paragraph 10 above under point (b) (ii), any trade union " nuclei " that may be set up still form part of the existing trade unions as defined by the legislation, and that the effect of this legislation is nevertheless to curtail, through the restrictions it imposes, the right of workers to establish and join organisations " of their own choosing ", which, yet again, is inconsistent with the generally accepted principles of freedom of association.
    17. 17 Lastly, the Committee notes the Government's statement implying that it has no intention of amending its legislation to meet any of the points raised in this section.
    18. 18 In these circumstances, the Committee notes the explanations furnished by the Government, expresses its regret that the Government does not deem it appropriate to consider altering its legislation in this respect and, for the reasons stated in paragraphs 15 and 16 above, adheres to the conclusions reached previously as quoted under point (b) in paragraph 10 above.
  • (b) Obligation to Submit Trade Union Rules for Approval by the Authorities
    19. 19 When it last examined the case the Committee reached the following conclusions in respect of this point:
  • ... the Committee recommends the Governing Body:
  • (a) to take note of the following changes effected in section 15 of Legislative Decree No. 23050:
  • (i) the deletion of subparagraph (e) requiring a trade union to limit the payments to the union by its branches to 50 per cent of the contributions received by such branches;
  • (ii) the deletion of subparagraphs (b) and (e), requiring the inclusion in trade union rules of a declaration of respect for the principles and purpose of the national community, an express renunciation of any and every form of activity, internal or external, which was contrary to the interests of the Portuguese nation, and a recognition of the fact that the trade union constituted a factor required for active co-operation with all the other factors of the national economic system, and consequently a repudiation of the class war;
  • (b) to draw the attention of the Government to its view that in order to comply with the generally accepted principles that workers' organisations should have the right to draw up their Constitutions and rules, to organise their activities and to formulate their programmes, that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and that the law of the land should not be such as to impair, or be so applied as to impair, the effective enjoyment of this right, it would be necessary to take the following further steps:
  • (i) to delete the provisions of section 9 of Legislative Decree No. 23050, in accordance with which " national trade unions shall subordinate their respective interests to the interests of the national economic system ";
  • (ii) to delete the provisions of section 18(3) of Legislative Decree No. 23050, in accordance with which approval of trade union rules can be given only after the National Institute of Labour and Social Welfare has reported that the proposed trade union is " justified in view of the economic and social interests of the community ".
    20. 20 In its observations the Government points out that Convention No. 87 makes no claim to be a code of regulations governing trade union rights, but merely sets forth, very briefly, certain basic principles, States remaining free to provide in their legislation for such formalities as they may consider most likely to ensure the proper working of occupational organisations. " If this is true for countries which have ratified Convention No. 87 ", continues the Government, " it must be even truer for those which, like Portugal, have not ratified, and merely have to show respect for the general principles enshrined therein ". The Government further points out that Convention No. 87 itself, in Article 8, contains a specific proviso calling for respect for the law of the land, " which may be embodied in national rules and regulations ".
    21. 21 The Government declares that it is for these reasons that Portuguese legislation has continued on these lines by laying down, in the new section 15 of Legislative Decree No. 23050, the general principle that occupational organisations shall be free to decide on their rules, embodying in sections 9 and 18 the requirement that there shall first be a check to ensure that the union concerned does not intend to infringe the general standards established for the defence of the nation's economy. The Government goes on to state that the same prerequisite is established for the setting up of employers' organisations, being designed in this case to ensure that there shall be no breach of basic rules embodied in legislation governing such things as monopolies, trusts, illicit agreements, collective agreements, minimum wages, social security, working hours, and so on.
    22. 22 " Thus it is " declares the Government " that approval of trade union rules is a formality equivalent to the registration practised in many countries." The Government " is prepared to admit that the wording of sections 9 and 18 might conceivably be improved. This is a point which will certainly be taken care of in due course. But in view of the way in which these provisions have always been interpreted, it was not felt necessary, when introducing amendments by means of Legislative Decree No. 49058, to make any textual changes ".
    23. 23 To illustrate its point, the Government states that since 1933 (when Legislative Decree No. 23058 was promulgated) " no single case of prohibition has ever been recorded. This in itself should suffice to show that the Government has ever been mindful of the provisions to which reference has been made ". The Government adds that under the ordinary law the parties concerned are free to lodge an appeal with the competent courts against any decision which goes against them.
    24. 24 It would appear from the explanations furnished by the Government that occupational organisations which it is intended to set up are allowed to draw up their rules in full freedom and that the required approval of these rules by the National Institute of Labour and Social Welfare is a mere formality equivalent to registration.
    25. 25 There would admittedly be no infringement of freedom of association if the abovementioned requirement were purely formal in character and were intended merely to correct possible drafting errors, easily put right, or if its purpose were simply to check whether the rules complied with legislative provisions which were themselves in conformity with the principles of freedom of association.
    26. 26 It would be otherwise, however, if this requirement conferred upon the public authorities more extensive powers of judgment and authorised them to refuse to approve a union's rules, and so to prohibit the founding of an organisation, in pursuance of statutory provisions which constituted in themselves an infringement of the principles of freedom of association.
    27. 27 It does appear that the concepts of " the interests of the national economic system " and " the economic and social interests of the community ", as stated in sections 9 and 18 of Legislative Decree No. 23050, are generalisations so vague as to allow for interpretation in broad terms which are clearly fraught with danger.
    28. 28 It is obvious, since the essential aim of a trade union should be to defend and further the interests of its members-which do not necessarily always coincide with what the public authorities consider to be the interests of the community as a whole-that a broad interpretation of the concepts mentioned in the preceding paragraph and a requirement that regard be specifically had thereto in the drawing up of trade union rules might run counter to the generally accepted principle that trade unions should be able to draw up their rules in full freedom, and subsequently to perform without hindrance their function of defending the interests of their members.
    29. 29 It would not appear from the Government's statements that this is in fact the intention behind the provisions objected to, and in practice no case of refusal to approve the rules has ever been recorded.
    30. 30 In these circumstances, bearing in mind that the Government itself (see paragraph 22) admits that the wording of the sections in question might be improved, the Committee takes note of the explanations furnished by the Government. It considers that it would be desirable for the Government to examine the possibility of amending its legislation in such a way as to remove all ambiguity as to the interpretation and the true scope of the provisions in question and, with this end in view, of deleting the provisions of section 9 and section 18 (3) of Legislative Decree No. 23050 to which reference is made under points (b) (i) and (ii) quoted in paragraph 19 above.
  • (c) Restrictions on the Right of Trade unions to Elect Their Representatives
    31. 31 When it last examined the case the Committee reached the following conclusions in respect of this point:
  • ... the Committee recommends the Governing Body:
  • (a) to take note of the following changes introduced into the legislation:
  • (i) Legislative Decree No 25116 has been repealed and 15 (5) of Legislative Decree No. 23050 has been amended, the previous system of ministerial approval of the results of trade union elections being replaced by a system of verification of the conditions of eligibility of candidates by credentials committees elected at trade union general assemblies;
  • (ii) Legislative Decree No. 32820 has been repealed and section 21 of Legislative Decree No. 23050 has been amended, the previous system, which permitted the substitution of government appointees for elected governing bodies of trade unions, being replaced by another system, providing for the suspension and dismissal of governing bodies through court action;
  • (b) to draw the attention of the Government to the desirability of the following measures:
  • (i) in order to avoid the danger of serious limitations on the right of workers to elect their representatives in full freedom, plaints brought before labour courts by the National Institute of Labour and Social Welfare in accordance with subsection 8 of the new section 15 challenging the results of trade union elections should not-pending the final outcome of the judicial proceedings-have the effect of suspending the validity of such elections;
  • (ii) in order to avoid a similar danger with regard to the right of workers to elect their representatives in full freedom as well as to the right of trade unions to organise their administration and activities, it would be necessary to delete the provisions contained in the new section 10 enjoining respect for " the higher interests of the Nation and the common good ", on the basis of which labour courts are to decide whether the conduct of trade union officers warrants their dismissal, in view of the fact that these provisions are drafted in terms so wide that they fail to afford any precise criteria for judicial decision.
    32. 32 In its observations the Government states that the suggestions made in the Committee's report " relate to procedural matters and are of course open to discussion should difficulties arise. For the time being, however, they are of no interest, since the courts have not yet had to consider any such problem ". " Be that as it may, " continues the Government " they do not have to be considered part and parcel of this complaint, since they do not run counter to the general principle " set forth in the Declaration of Philadelphia.
    33. 33 In these circumstances, as the Government has furnished no new evidence on the substance of the question, the Committee feels bound to abide by its earlier conclusions; quoted under (b) in paragraph 31 above.
  • (d) Suspension and Dissolution of Trade Union Organisations by Administrative Authority
    34. 34 When it last examined the case the Committee reached the following conclusions in respect of this point:
  • ...the Committee recommends the Governing Body:
  • (a) to take note of the changes introduced into section 10 of Legislative Decree No. 23050, whereby the provisions on " immediate dissolution " of trade unions by administrative authority have been removed;
  • (b) to draw the attention of the Government to its view that in order to secure fuller compliance with the principle that trade unions should not be dissolved or suspended by administrative authority it would be necessary to amend the new section 20 of Legislative Decree No. 23050 so that a decision by a non-judicial authority such as the Corporative Council to dissolve a trade union should not become effective until the statutory period has expired without an appeal being lodged against this decision or until it has been confirmed by a decision of the court.
    35. 35 In its comments the Government states that " a trade union can today be wound up only if its own appropriate organ so decides, or, should government action be required, by virtue of a decision taken by the Council of Ministers; in the latter event, an appeal can always be made to the courts, and the legal ruling (when the parties so request) has suspensive effect. This was the system adopted by the enactment of Legislative Decree No. 49058. There can be no doubt but that it is fully in harmony with the general principles enshrined in the ILO Constitution. It might well be that were Portugal to ratify Convention No. 87, Article 4 of the latter would force it to reject the second reason for dissolution under the existing legislation despite its great soundness. But the Committee on Freedom of Association has recognised ... that since Portugal has not ratified Convention No. 87, it cannot be expected to shoulder the obligations which would be incumbent on it if it had. And it is in these terms that Legislative Decree No. 49058 provides for action by the Corporative Council (in fact, a Council of Ministers), subject to safeguards whereby a union can carry on its normal activities as before, whenever it seeks the authorisation of the competent court to do so and this authorisation is accorded ".
    36. 36 The Committee has taken note with interest of the explanations furnished by the Government concerning this aspect of the case, especially as regards the suspensive effect of appeals to the courts against decisions of the Corporative Council as to dissolution. The Committee nevertheless points out in this connection that it would appear from the Government's statements that the suspensive effect becomes operative only if the courts accede to a request made to that effect by the parties concerned.
    37. 37 The Committee considers that the suspensive effect should operate automatically, firstly, throughout the period during which an appeal may be lodged and, secondly, until the final judgment is pronounced in the event of an appeal against a decision for the winding up of a union, and this was the meaning it intended to convey in the observation quoted under point (b) in paragraph 34 above.
  • (e) Compulsory Trade Union Contributions.
    38. 38 When it last examined the case the Committee reached the following conclusions in respect of this point:
  • ... the Committee recommends the Governing Body to draw the attention of the Government to its view that in order to secure fuller compliance with the principle that workers should have the right to constitute and join organisations of their own choosing, it would be necessary to amend Legislative Decree No. 29931 of 15 September 1939, removing the obligation imposed on all the workers in the category concerned to pay contributions to the single national trade union which it was permitted to form in any one occupation in a given area.
    39. 39 In its observations the Government states that the statutory system whereby workers who are not members of a union are required to pay union dues is by no means an essential feature of the Portuguese corporative system. It was introduced during the last world war in an attempt to cope with the economic problems caused by that conflict, and according to the Government has been maintained for purely practical reasons. The Government admits, however, that " compulsory payment of union dues might invalidate the principle that a man should be free to join the union of his choice ".
    40. 40 In these circumstances, while taking note of the explanations furnished by the Government, the Committee, guided by the criteria which it has always observed in evaluating a particular situation, cannot do otherwise than abide by the conclusion quoted in paragraph 38 above, for the reasons stated in that conclusion.
  • (f) Supervision of Collective Bargaining and Approval of Collective Agreements by the Public Authorities
    41. 41 When it last examined the case the Committee reached the following conclusions in respect of this point:
  • ... the Committee recommends the Governing Body:
  • (a) to note Legislative Decree No. 49212, whereby the mandatory intervention of the National Institute of Labour and Social Welfare in the drafting of collective agreements, the guidance of negotiations and the drafting of terms is replaced by optional intervention at the request of the corporation with a view, in particular, to providing the parties with legal and technical advice;
  • (b) to draw the Government's attention to the fact that Legislative Decree No. 49212 has not changed the previous situation as regards the requirement of ministerial approval in order that a collective agreement may come into force, and to request the Government once again to state whether the competent minister may refuse this approval and, if so, in what circumstances and on what grounds, and whether there is any possibility of appealing against refusal to approve a collective agreement.
    42. 42 In its observations the Government states that the examination of a collective agreement by the Ministry of Corporations is designed to ensure that the agreement does not run counter to public order or to the rules enacted to defend the workers' minimum rights. " Ministerial approval cannot entail the replacement of, or changes to, texts freely agreed upon between the parties concerned." The Government points out that provision is not even made for refusal of approval in Legislative Decree No. 49212, which merely lays down, in sections 2 and 3, rules which collective agreements must not infringe. " It follows " concludes the Government " that only if a collective agreement runs counter to such rules can approval be refused. And since refusal, if it occurs, can only be by ministerial decision, an appeal against this decision can always be lodged with the Supreme Administrative Tribunal in accordance with the general provisions of the law."
    43. 43 The Committee thanks the Government for the explanations that it has furnished concerning this aspect of the case and takes note of them with interest. It nevertheless draws the attention of the Government to the risk of limiting the voluntary negotiation of collective agreements by provisions such as those of section 3 of Legislative Decree No. 49212, which allows the presence of a clause interfering with " the right reserved to the State to co-ordinate and have the over-all control of the economic life of the nation " to be taken as a ground for refusing approval.
  • (g) Restrictions on the Right of Trade Unions to Affiliate with International Organisations of Workers
    44. 44 When it last examined the case the Committee reached the following conclusions in respect of this point:
  • ... the Committee recommends the Governing Body to bring the attention of the Government to its view that in order to give full effect to the generally accepted principle that trade union organisations should have the right to affiliate with international organisations of workers it would be necessary to delete the provisions of the new section 10 [of Legislative Decree No. 230501 subjecting the exercise of this right to the discretionary authority of the National Institute of Labour and Social Welfare.
    45. 45 In its comments the Government declares that intervention by the National Institute of Labour and Social Welfare is intended merely as a means of ensuring that the same interests are not represented twice over (by the corporation and by the unions). The Government adds that by intervening, the Institute should be able to ensure that representation through some monolithic organisation shall not exclude the individual representation of smaller bodies. The Government points out that the corporate State is organised in the form of a pyramid, which explains why, when conflict threatens, the State has to intervene with a view to ensuring the most appropriate and the most equitable settlement.
    46. 46 In addition to giving these explanations, the Government points out once again that since Portugal has not ratified Convention No. 87 it does not consider itself bound by Article 5 of that Convention. It further observes that, from the simple principles enshrined in the Declaration of Philadelphia, it cannot possibly be deduced " that the bodies have the right to affiliate with international organisations, much less supposing this right to exist, that it must be free of certain legal conditions. In saying this the Portuguese Government by no means wishes to assert that what is said in Article 5 is unjustifiable. It simply wishes to affirm that Portuguese legislation, if in this regard it departs somewhat from a ruling which deserves respect, is not for that reason to be considered a breach thereof ". The Government concludes by stating that it sees no reason to amend the legislation now in force.
    47. 47 The Committee expresses its regret at the Government's attitude and stands by the opinion it expressed earlier, to the effect that it would be more consistent with the generally accepted principle that trade union organisations should have the right to affiliate freely with international occupational organisations to delete the provisions of the new section 10 of Legislative Decree No. 23050 subjecting the exercise of this right to the discretionary authority of the National Institute of Labour and Social Welfare.
  • (h) Prohibition of Strikes under Portuguese Legislation
    48. 48 When it last examined the case the Committee reached the following conclusions in respect of this point:
  • ... the Committee recommends the Governing Body to draw the attention of the Government once again to its view that the right of workers and their organisations to strike is a legitimate means of defending their occupational interests and that it would therefore be necessary to amend the present legislation, in particular Legislative Decree No. 23870, which prohibits strikes altogether.
    49. 49 In its observations the Government recalls that conciliation and arbitration machinery exists in Portugal for the solution of collective labour disputes, and that Legislative Decree No. 49212, in particular, lays down detailed rules and fixes time limits in this respect.
    50. 50 The Government argues that the system operated in Portugal is justified on the ground that " all Portuguese legislation is based on the following principle, defended in the International Labour Organisation: whenever strikes are forbidden or subject to restrictions, the workers must be offered adequate safeguards for the defence of their interests. Swift and impartial arbitration procedures, involving participation by all concerned at every stage, must be devised ".
    51. 51 The Portuguese Government would appear to have misunderstood the Committee's viewpoint in that it apparently takes to be the rule what the Committee regards as an exceptional measure. In fact, the rule, in the Committee's view, is that the right to strike, where exercised for the defence and furtherance of the workers' interests, should be recognised to be a legitimate means of action for workers and their organisations. It is only in special cases such as those of essential services and of the civil service that the Committee has admitted that there is justification for not according the right to strike, and it is with these cases only in mind that it has emphasised that-the workers being deprived of an essential means of action which would normally be open to them-conciliation and arbitration procedures should be so designed as to compensate for the lack of such a means of action.
    52. 52 In view of the above, the Committee cannot do otherwise than maintain the position it adopted earlier and reaffirms the conclusion quoted in paragraph 48 above.