Report in which the committee requests to be kept informed of development - Report No 214, March 1982

Case No 1042 (Portugal) - Complaint date: 28-MAY-81 - Closed

301. The complaint of the National Federation of Public Employees' Trade Unions, a federation belonging to the General Confederation of Portuguese Workers (CGTP-IN), reached the ILO in a telegram dated 28 May 1981. The complainant federation supplied additional information in support of its complaint in communications dated 2 and 17 June 1981. The Government, for its part, sent its observations in a communication dated 6 November 1981.

1. 301. The complaint of the National Federation of Public Employees' Trade Unions, a federation belonging to the General Confederation of Portuguese Workers (CGTP-IN), reached the ILO in a telegram dated 28 May 1981. The complainant federation supplied additional information in support of its complaint in communications dated 2 and 17 June 1981. The Government, for its part, sent its observations in a communication dated 6 November 1981.
2. 302. Portugal has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

1. 303. In its initial communication the National Federation of Public Employees' Trade Unions, comprising 28 trade union organisations representing approximately 300,000 of the total 370,000 public employees, reported the arrest of three of its trade union leaders.
2. 304. In its further communications, the complainant federation explains that the court proceedings initiated against the leaders relate to a labour dispute between it and the Government which had arisen allegedly because the latter refused to negotiate the salaries of public employees. The complaint therefore alleges a violation of Articles 7 and 8 of the Labour Relations (Public Service) Convention (No. 151), which was ratified by Portugal by Act No. 17/80 of 15 July 1980, and of articles 58(3) and (4) and 270(2) of the Portuguese Constitution. It also alleges a violation of Convention No. 98, specifying that, even if a literal interpretation is given to Article 6 of the Convention, under the Portuguese Constitution public employees enjoy the right to collective bargaining in the internal legal system. Consequently, in accordance with article 19(8) of the ILO Constitution, that right may not be denied them.
3. 305. The documentation attached to the complaint shows that representatives of the public employees been asking to be received by the Government since November 1980 in order to negotiate salary increases which they wanted to come into force on 1 January 1981.
4. 306. Despite a number of steps taken by the trade unions, the first meeting was held only on 20 February 1981. During that meeting, according to the complainant the Minister of Administrative Reform told the trade unions that a sum of 13.62 million contes would be allocated to public employees, for a salary rise, an increase in seniority benefits beginning in January and an increase in allowances. These proposals were confirmed by the Minister on 27 February, especially the fact that the increases would be made retroactive to January.
5. 307. However, according to the complainant, on 13 March the Minister went back on his proposals. He only envisaged salary increases on 1 May according to one of the three following solutions- from 16.6 to 19 per cent or from 17 to 20 per cent or from 18 to 21 per cent, according to the occupational category. In addition, he is said to have refused any increase in seniority benefits.
6. 308. On 20 March, the Government's proposals were further reduced, to reach a total cost of only 10.83 million. Lastly, on 6 April 1981, the total cost was cut to 10.61 million and the Government, after having notified the trade unions, adopted Act No. 101-A-81 of 14 May 1981 to fix the new salaries of public employees, whereby its proposals were approved unilaterally.
7. 309. The complainant federation states that the negotiations were broken off starting on 20 March 1981. However, on 13 May 1981 three of the leaders of a trade union delegation expecting to be received by the Minister of Administrative Reform - since the trade unions had requested a hearing 54 days before - were arrested by the police. They were charged with disobedience whereas, according to the complainant, they had merely wished to defend and promote the interests of their union's members and exercise their right to collective bargaining in accordance with the rights to which they are entitled under the Constitution.
8. 310. In concluding, the complainant states that the Government did not seek the participation of the trade unions in fixing the salaries of public employees for 1981. The procedure it adopted was an authoritarian procedure which caused negotiations to be broken off, led to the labour dispute in question and prevented an impartial solution being found that would secure the confidence of the various parties concerned.
9. 311. In a subsequent communication, the complainant federation states that the three imprisoned trade union leaders were acquitted by the Lisbon Criminal Police Court on 4 June 1981 but adds that the public prosecutor has appealed against the decision. Part of the text of the court's decision is attached to the communication.

B. The Government's reply

1. 312. The Government states that it wishes to clarify the facts regarding the decision handed down in the case of the three trade union leaders. On 11 May several trade union leaders belonging to the negotiating Committee began to wait outside the office of the Minister of Administrative Reform so that they might be received by him as they had requested earlier.
2. 313. However, at about 3.00 p.m. on 13 May 1981, the Government explains, the Lisbon police, having found some 20 persons gathered in the street outside the Ministry, with two light loudspeaker vans, ordered the demonstrators to disperse since the Civil Governor of Lisbon had not been informed of the meeting by the organisers as is required by law. The trade unionists carried on a noisy demonstration outside the ministry of social Reform, broadcasting slogans and music through the loudspeakers, thus disrupting the normal operation of the Ministry's services. Since three persons refused to comply with the order, the police arrested them, independently of their status as trade unionists, on the charge of aggravated disobedience in accordance with Legislative Decree No. 406/74 and section 287 of the code of Criminal Procedure.
3. 314. The Government explains that these three persons were conducted to the police station and summoned to appear before the police court on 14 May 1981. It states that they were released until the proceedings were to begin. On 14 May, the case was adjourned by the court until 18 May, at the request of the counsels for the defence, and the accused were again allowed to go free. The trial began on 18 May and, after ten hearings to clarify the facts, finished on 4 June 1981. The Government confirms that the accused were acquitted and that the public prosecutor has appealed against the court's decision. It. states that the appeal does not relate to the trade union activities or status of the persons concerned. It has communicated the full text of the decision handed down in the case and gives the assurance that it will keep the Committee informed of the outcome of the appeal.
4. 315. Regarding the alleged violation of the Portuguese Constitution and of Article 7 of Convention No. 151, the Government, in its communication of 6 November 1981, states that the Convention has not yet come into force since its ratification was registered only on 9 January 1981. As the complainant federation itself recognises, the Convention will become compulsory for Portugal only 12 months later, i.e. on 9 January 1982.
5. 316. The Government nevertheless wishes to reply to the assertion that the Convention supplements Portugal's legal and Constitutional system which recognises the right to collective bargaining of all workers without exception, including public employees, in accordance with articles 58(3) and (4) and 270(2) of the Constitution.
6. 317. In this connection, the Government states that, in its opinion, the question whether public employees have the right to collective bargaining under the Constitution must be considered in the light of article 58 of the Constitution, which provides that trade unions have the right to collective bargaining (paragraph 3) and that rules for the adoption of collective agreements are to be defined by legislation (paragraph 4). The existing legislation on collective agreements (Legislative Decree No. 510/01/79 of 29 December 1979), however, expressly excludes collective labour relations in the public services, which, in accordance with section 1(2) of this Decree, are to be governed by a special Act. The Government observes, lastly, that the complainant federation invokes the provisions of article 270(2) of the Constitution concerning the public service system, to the effect that no public servant or person employed by the State may suffer any prejudice or enjoy any advantage for political reasons. However, the Constitution excludes trade union rights from the field of political rights on the other hand, the Government adds, the complainant federation has failed to invoke the provisions of article 270(1) establishing the principle that public servants and persons employed by the State are engaged exclusively in the service of the public interest, as well as article 167(m) which, along the same lines, defines the statutory character of the public service system, stipulating that its scope and operation are matters coming within the exclusive province of the Assembly of the Republic.
7. 318. Furthermore, the Government recalls that Article 6 of Convention No. 98 provides that the Convention does not deal with the situation of public servants, which is the reason why Convention. No. 151 concerning labour relations in the public service was adopted. Consequently, according to the Government, the complainant federation is wrong to invoke Convention No. 98 and Article 19(8) of the ILO Constitution.
8. 319. Lastly, the Government rejects the allegation that it does not intend to apply in good faith Convention No. 151, which it has ratified, and the allegation that it endeavoured to prevent the negotiation and participation of the employees concerned in establishing conditions of employment in the public service and set up obstacles to the use of machinery for settling labour disputes.
9. 320. The Government considers that it is being called to account for its intentions and not its deeds since it has promised to submit to the National Assembly shortly and in any case within the time-limits required by ratification of Convention No. 151, a bill for the purpose of complying with the provisions of the Convention.
10. 321. As regards the alleged obstacles to negotiation, the Government states that it did not prevent negotiation or block the machinery for settling disputes for the simple reason that until the relevant bill is adopted no such negotiation or machinery exists. As a matter of fact, however, the Government called upon the representatives of several trade unions concerned to participate in regulating the conditions of employment for public employees and, in particular, in discussing the new scale of salaries. Discussions did take place but, owing to budgetary difficulties, the salaries were fixed at a level which did not meet with the agreement of the trade union bodies. The dialogue with the public employees' trade unions is going ahead normally and, since 8 July 1981, various questions concerning their salaries have been under discussion. In conclusion, the Government assures the Committee that it intends to adopt the necessary standards to bring national legislation and practice into line with the provisions of Convention No. 151, which will come into force in Portugal on 9 January 1982.

C. The Committee's conclusions

1. 322. The Committee notes that this case relates to difficulties encountered by the complainant federation, to which most of the public employees' trade union organisations belong, in connection with collective bargaining. These difficulties led to a demonstration on the public thoroughfare, resulting in the arrest of three trade union leaders.
2. 323. According to the complainant federation, the Government adopted an authoritarian procedure and unilaterally broke off negotiations. According to the Government, on the other hand, it received the representatives of the trade union organisations as they had previously requested.
3. 324. Whatever the case, the Committee can only note that the decision relating to salary increases for public employees was not endorsed by the complainant federation, which is the most representative organisation in the sector.
4. 325. In these circumstances, the Committee, while regretting that the salary increases for 1981 were fixed by a unilateral decision of the Government without ensuring the confidence of the trade unions, expresses the hope that such a situation may be avoided in future. It recalls that, in accordance with the principles set forth in Article 8 of Convention No. 151, when a labour dispute arises in the public sector efforts should be made to find a solution before any decision is adopted. In the Committee's view, the settlement of disputes arising in connection with determining conditions of employment should be sought through negotiation between the parties or through independent and impartial machinery established in such a manner as to secure the confidence of the parties involved.
5. 326. In this particular case, the Committee notes that, according to the Government's own statements, the existing legislation does not yet provide for any procedure for the settlement of disputes in the public service. However, the Government has given the assurance that it will adopt the necessary standards for bringing national legislation and policy into line with the provisions of Convention No. 151, which Portugal has ratified and which came into force in the country on 9 January 1982.
6. 327. The Committee takes note of this statement and trusts that the provisions of the special Act to govern collective labour relations in the public service will grant public employees the guarantees provided for by Convention No. 151 concerning procedures for determining conditions of employment and settling disputes in such a manner as to secure the confidence of the parties involved. The Committee considers it useful to bring this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
7. 328. As regards the arrested trade union leaders, the Committee notes that they were promptly tried and acquitted by the court. It also observes that they were not held in custody pending trial. However, the public prosecutor has appealed against the court's decision.
8. 329. In these circumstances, the Committee wishes to remind the Government that the right to organise demonstrations without disturbing public order is an essential trade union right. It does not seem in the present case that the demonstration in question was in the least violent, and the decision handed down by the court would seem to indicate that there was no legitimate reason for the order given to disperse the demonstrators.
9. 330. Accordingly, the Committee considers it useful to recall that the arrest of trade union leaders may entail serious obstacles to the exercise of trade union rights, especially when the sole aim of those leaders is to be heard by the public authorities for the purpose of defending and promoting the rights of their unions' members. The Committee therefore requests the Government to keep it informed of the outcome of the appeal lodged by the public prosecutor.

The Committee's recommendations

1. 331. In these circumstances, the Committee recommends the Governing Body to adopt the following conclusions:
   • (a) Regarding the Government's refusal to negotiate salaries in the public service for 1981, the Committee regrets that the salary increases were fixed by a unilateral decision of the Government without ensuring the confidence of the trade unions concerned and expresses the hope that such a situation may be avoided in future.
   • (b) Regarding the special Act to govern collective labour relations in the public service, the Committee, having taken note of the assurances given by the Government, trusts that this Act will grant public employees the guarantees provided for by Convention No. 151 concerning the procedures for determining conditions of employment and settling disputes in such a way as to secure the confidence of the parties concerned. The Committee thinks it useful to draw this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
   • (c) Regarding the arrested trade union leaders, the Committee notes that they were acquitted by the Lisbon police court and that they were not held in custody pending trial. However, the Committee also notes that the public prosecutor has appealed against the court's decision. The Committee therefore considers it useful to remind the Government that the arrest of trade union leaders may entail serious obstacles to the exercise of trade union rights, especially when those leaders act to defend and promote the rights of their unions' members. The Committee accordingly requests the Government to keep it informed of the outcome of the appeal lodged by the public prosecutor.