Definitive Report - Report No 217, June 1982

Case No 1087 (Portugal) - Complaint date: 23-OCT-81 - Closed

1. 187. The complaints of the General Confederation of Portuguese Workers (CGTP-IN) and the Trade Union Federation of Textile, Wool and Garment Workers are contained in communications dated 23 and 27 October 1981, respectively. The World Federation of Trade Unions (WFTU) sent a telegram relating to the matter on 5 November 1981. The Federation of Textile Workers and the CGTP-IN forwarded further information in support of their complaints on 23 November and 10 December 1981. Finally, the World Confederation of Labour (WCL) endorsed the complaints on 20 January 1982.
2. 188. The Government supplied its observations in communications dated 22 January, 11, 18 and 19 February and 31 March 1982.
3. 189. Portugal has ratified 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).

A. The complainants' allegations

1. 190. In this case, all of the complainant organisations allege an infringement of the right of free collective bargaining by the employers who, they claim, took advantage of national legislation to obtain an over-all agreement with an unrepresentative trade union, the Democratic Union of Textile Workers (SINDETEX), affiliated to the General Union of Workers (UGT), and thereby to undermine the rights previously acquired by the workers under collective agreements in the textile sector.
2. 191. The Trade Union Federation of Textile, Wool and Garment Workers supplies detailed information explaining that it represents 90 per cent of the workers in this sector, which employs 220,000 workers and accounts for a third of the jobs in the manufacturing industry. Describing generally the situation since 1974, it states that it participated in the collective bargaining procedures in 1975, and that the agreements adopted then were revised in 1977, 1979 and 1980.
3. 192. In this case, it objects to the provisions of Legislative Decree No. 519-Cl/79 which imposes a minimum duration on collective agreements starting from the date of their publication in the Official Gazette and not, as it would have wished, from the date of the conclusion of the agreement. It explains that as the lodging, publication and promulgation of agreements are administrative acts, the Government would hold up the implementation procedure as long as possible in order to comply with the employers' wishes. Thus, the last revision of the agreement of 23 June 1980 was not published until 15 September and not promulgated until 20 October 1980.
4. 193. More specifically, the Federation, in its communication of 23 November 1981, states that as early as 14 May 1981 it had proposed to the employers' associations that wages should be brought up to date, meal allowances introduced and working hours reduced from 45 to 44. The employers, however, refused these proposals on the ground that ten months had not elapsed since the promulgation of the agreement, stating that it would only negotiate after that period had elapsed.
5. 194. At the same time, the employers negotiated collective agreements with a rival trade union, SINDETEX, depriving the workers of some 100 acquired rights and benefits and expressly stating in one clause that the new agreements were more favourable than the previous ones, a clause which, under section 15 of the legislative Decree mentioned above, the complainant Federation explains, results in revoking the rights acquired by the workers.
6. 195. The complainant Federation adds that, when direct negotiations finally began with the employers on 4 September 1981, the latter at first refused to negotiate on working hours, meal allowances and the general organisation of work, claiming that Portuguese legislation did not permit negotiation on those questions that year. Subsequently, changing tactics, they attempted to impose on all the workers the conditions concluded with the SINDETEX. Meanwhile, the employers and the SINDETEX had induced the Government to extend their agreements to the entire sector. As the complainant Federation refused to comply with the employers' wishes on this point, the negotiations were broken off, conciliation by the Ministry of Labour failed and the mediation requested by the complainant Federation was refused by the employers.
7. 196. The announcement by the Secretary of State for labour on 13 October 1981 that he was going to extend to the entire sector the agreements signed by the employers and the SINDETEX prompted a peaceful strike, at Covilha in particular. In its communication of 10 December 1981, the complainant Federation specifies that the strike pickets observed the law and merely persuaded the undecided workers of the reasons for the strike without resorting to violence against the strike breakers. However, according to the complainants' communications, the Government reacted by sending hundreds of police into the textile works who, the complainant Federation states, struck women, children, old men, and even telephone workers who were repairing telephone lines.
8. 197. In conclusion, the complainants consider that the following restrictions were imposed on rights and benefits acquired in the field of freedom of association by the extension of the agreements announced in the Decrees published in the Official Gazette on 21 November 1981, a photocopy of which is attached to the documentation: the reduction of time off for trade union delegates to the minimum fixed by the law, the reduction of paid hours spent in general meetings by workers in enterprises, restriction of the right of access to trade union premises in the enterprise and of representatives to workers' meetings, and withdrawal of the negotiating status granted to the trade union works Committee. The resulting disadvantages also relate to the increase in the length of the working week in the wool and weaving subsector from 42 hours 30 minutes to 45 hours, to the elimination of the need to obtain the prior agreement of the trade union works Committee before introducing any change in working hours, and to restrictions of acquired rights in health and safety, occupational medicine, the thirteenth month payment, labour discipline and the working conditions of homeworkers.
9. 198. The complainant Federation also objects to the fact that the preamble to the Decrees extending the agreements makes no reference to its legal opposition to these texts.

B. The Government's reply

1. 199. The Government acknowledges that the textile sector accounts for 26 per cent of the total number of employed workers, which explains the interest it takes in this branch of the economy, particularly at times of crisis and unemployment. It adds that it is in this sector that the largest number of labour disputes has taken place, with some arising from the negotiation of collective agreements. This is not unrelated to the arduous nature of work in the textile industry and the economic difficulties it has experienced, which have hindered its development and technological advance. Consequently, the Government has endeavoured to avoid protracted disputes in this sector, either by encouraging voluntary negotiation or, when this has proved impossible, by determining working conditions on its own initiative.
2. 200. The Government then briefly reviews collective bargaining in the textile sector since 1974. It explains that, from 1975 to 1980, working conditions in this sector were fixed by the public authorities, after lengthy, but unsuccessful, collective bargaining. In 1975, 1977 and 1979, the Ministry of Labour, alone or jointly with the Ministry of Industry, laid down the conditions of work in this sector by orders regulating work, following various collective disputes due to deadlocks in collective bargaining based on the forms of voluntary settlement provided for in Portuguese law (conciliation, mediation, arbitration).
3. 201. The Government adds that an annex to the order regulating work issued in 1975 set forth the conditions of work negotiated between two employers' associations of the sector in question and several trade union organisations, including the complainant Federation. The Government states, however, that, according to certain executives of the employers' associations, some of these conditions were not in fact applied.
4. 202. The working conditions established by administrative authority and through negotiations in 1975, the Government continues, were only partly modified in 1977 by a new order regulating work issued by the Ministries of Labour and Industry after a year of negotiation. The preamble to the order mentions the disagreement which arose between the parties when defining the scope of the future agreement for the sector, and the Ministry of Labour, at the request of the Federation of Textile Workers, intervened in the process so as to help to solve the dispute. However, the parties were unable to resolve their differences, either through the direct negotiations which had already been started or during the conciliation proceedings, and the conditions of work in this sector were again fixed by the public authorities by means of an order regulating work. The same thing happened in 1979.
5. 203. In 1980, the first real vertical collective agreement in this sector since 1974 was concluded by several employers' and trade union associations, including the Trade Union Federation of Textile, Wool and Garment Workers of Portugal. This agreement maintained the most favourable working conditions contained in all the previous, regulations and established by the public authorities, including those which had begun to be negotiated in 1975, and excluded the clothing subsector in the south of the country, in which the working conditions had again been fixed by administrative authority after fruitless negotiations.
6. 204. It is thus clear, the Government continues, that the public authorities intervened fairly frequently in the regulation of working conditions in the textile sector because of the inability of the parties to agree on solutions to their differences and because of the economic importance of the sector in question. This intervention, however, had social objectives in view - periodic adjustment of working conditions, in particular of wages - and in most cases took place at the request of the trade union organisations concerned, including the complainant Federation, it was confined to the strict application of legal standards - which require that all voluntary forms of negotiation should have been exhausted - and gave rise to no overriding objections on the part of those concerned.
7. 205. The Government points out that, according to the complainant Federation, the negotiating process had begun on 14 May 1981 with a proposal addressed to all the employers' associations in the sector, which was rejected by the latter on the ground that it was untimely. The Ministry has no information available on this matter but it explains, in general terms, that in accordance with Portuguese legislation (section 16(2) of Legislative Decree No. 51901/79 of 29 December), collective agreements cannot be denounced until 20 or 10 months have elapsed from the date of their publication, depending on whether an over-all revision or a wage adjustment is demanded. Since the agreement which was to be revised had been published on 15 September 1980, the above time-limits had not yet expired and the employers' associations had a legitimate right to refuse to negotiate.
8. 206. The Government refers next to the assertion of the complainant Federation that denunciation before the expiry of the legal time-limit was justified by the long delay in the publication of the agreement calling for revision, and that this delay was attributable to the Ministry of Labour. This assertion is completely unfounded and can only have been made in bad faith since the Federation is familiar with the formalities required under the rules for the lodging of such agreements, namely that agreements between workers' and employers' organisations must be deposited and published by the Ministry of Labour. Deposit and publication are administrative procedures in which obligatory rules and time-limits must be observed in order to render them effective (sections 24 and 26 of legislative Decree No. 519-Cl/79). Thus, collective agreements must be delivered to the competent authorities for deposit and are deemed to have been deposited within the 15 days following the date of delivery to the Ministry of labour if they have not been rejected. Deposit however may be refused if certain conditions are not fulfilled (section 24(3) of Legislative Decree No. 519-Cl/79 and sections 11 and 15 of legislative Decree No. 121/78 of 2 June). The agreement concluded by the complainant Federation, although signed on 23 June 1980, was not delivered to the Ministry of Labour for deposit until 30 July 1980, the Government states. Its deposit was refused on 14 August 1980 due to failure to comply with the provisions of section 11 of Legislative Decree No. 121/78 requiring that agreements establish wages for all the occupations covered by them. This correction was not made by the parties until 9 September 1980, and the agreement was deposited the same day and sent immediately to the ministry of Labour for publication in the 15 November 1980 issue of its Bulletin. The complainant Federation cannot claim that there was connivance between the Government and the employers to hold up the deposit of the agreement. The delay that occurred can be attributed only to the parties who, knowing the law, failed to observe it.
9. 207. The Government notes that the complainants do not describe what course the negotiations took after the refusal of the employers' associations to negotiate, and the Ministry of Labour has no information on this matter. But it explains generally that collective agreements are negotiated without the direct involvement of the public authorities.
10. 208. It goes on to point out that the ministry of Labour was not officially informed that the negotiations were deadlocked until 17 September 1981, when the employers' associations requested it to initiate conciliation proceedings under section 31 of legislative Decree no. 519-01/79. Conciliation was attempted without success at four meetings, and although the employers' associations wished the proceedings to continue, the Ministry of Labour conciliator was obliged to declare them ended. The Government attaches the record of the conciliation proceedings to its reply. It confirms, however, that mediation was proposed by the trade union organisations but refused by the employers' associations and that the two parties stated that they did not wish to resort to arbitration.
11. 209. The Government explains that, while these negotiations were going on the Ministry of Labour learned that two collective agreements had been concluded in the same sector, which were communicated to it for deposit. The parties to these agreements are certain employers' associations involved in the negotiations and several trade unions, including the Democratic Union of Textile workers (SINDETEX), which is competing with the complainant Federation in the same sector and in the same context for the representation of workers in the same occupations.
12. 210. As regards the grievance concerning the representativity of the rival trade union, the Government states that the Ministry of Labour cannot be a judge of the representativity of the SINDETEX union, nor can it prevent it from negotiating collective agreements if it so wishes. In this respect, it explains that the public authorities exercise no control over the prior representativity of trade unions in the process of formation and have no means of judging their representativity after they have been set up. The law contains no provision obliging trade unions to inform the Ministry of Labour of their membership, and they do not provide such information on their own initiative. Consequently, the notion of representativity applied in some countries, especially for the purposes of collective bargaining, is unknown in Portuguese law. Thus, the Government can neither confirm nor deny the representativity claimed by the Trade Union Federation of Textile workers just as it cannot account for the representativity or net of the SINDETEX. It adds that all trade unions are legally entitled to conclude collective agreements (section 3 of legislative Decree No. 519). The public authorities therefore cannot determine which are the representative trade unions for the purposes of collective bargaining without violating the above-mentioned standards. Hence, the Government concludes, the principle which obtains here is that the parties enjoy freedom and independence in choosing the partners to negotiations.
13. 211. As regards the complaint concerning the inclusion in the agreement concluded by the SINDETEX of a clause stating that this agreement is more favourable than the previous one, the Government points out that the Trade Union Federation of Textile Workers is opposed to it because it would mean for workers in this sector a loss of more than 100 of their rights. As far as Portuguese law is concerned, section 15 of Legislative Decree No. 519-01/79 establishes the principle of social progress, according to which the conditions of work fixed by an agreement may not be lowered by a subsequent agreement unless the partners consider that, taken as a whole, it is more favourable than the former one. In this case, the most favourable aspect of working conditions is no longer analysed point by point, according to the theory of legal accumulation, but agreement by agreement, according to the theory of over-all examination.
14. 212. The Government states that it does not fall within its competence to take a position on the inclusion of provisions of this type in collective agreements and that, under the Portuguese legal system the parties enjoy, within the limits fixed by law (section 6 of Legislative Decree No. 519-01/79), freedom and autonomy to decide the material content of collective agreements.
15. 213. Returning to the question of the dispute which arose between the Trade Union Federation of Textile Workers and the employers' associations in the same sector regarding the revision of their agreement, the Government recalls that it could not be resolved by any of the usual voluntary methods of settlement: conciliation, mediation, or arbitration. It explains that, in addition to these forms of settlement, Portuguese law (section 36 of. Legislative Decree No. 519-Cl/79) permits government intervention in disputes arising during the conclusion or revision of a collective agreement - through the Ministry of Labour and the ministry responsible for the sector of activity in which the dispute takes place - subject to certain conditions and if all voluntary means of settlement have been exhausted. These conditions are limited to cases of deadlock or bad faith in the negotiations, attributable to one party or to both. Government intervention can then take the form of an order regulating work or an extension order. Moreover, if in the sector where a dispute has arisen during the conclusion or revision of an agreement there is another agreement which is applicable to the parties, the law provides that the Government should extend that agreement, instead of itself fixing different conditions of work. This, it says, is justified because it would be absurd if the public authorities themselves, by means of standards which they established, were to risk creating discrepancies in the cost of labour or in working conditions within the same sector of activity.
16. 214. Thus, since the Ministry of Labour was aware of the failure of the conciliation proceedings and the parties failed to reach agreement about proceeding to mediation or arbitration, the Government could either not intervene or else intervene by issuing orders to extend the agreements which had meanwhile been concluded in the same sector of activity, considering that an order regulating work, as the Trade Union Federation of Textile Workers wished, was neither legally viable nor adequate.
17. 215. These solutions were communicated to the complainant Federation during a meeting which was held with the Secretary of State for Labour on 13 October 1981. At this meeting it was emphasised that the Government was interested in seeing direct negotiations resumed, but this did not happen.
18. 216. Bearing in mind the circumstances in this sector - its economic importance and the importance of the dispute - and the Government's position in other similar cases, it was therefore decided, in accordance with section 29(1), (5) and (6) of Legislative Decree No. 519-Cl/79, to make public the intended extension of the agreements concluded by the SINDETEX by publishing notices in the Bulletin of Labour and Employment, the Ministry of Labour seeking the opinion of the employers' associations and the workers concerned on the planned extension.
19. 217. The Trade Union Federation of Textile Workers opposed these notices alleging, in addition to their illegality, the illegality and unconstitutionality of the proposed extension orders. It added that they would violate Conventions Nos. 87 and 98 of the International Labour Organisation, ratified by Portugal.
20. 218. After analysing the arguments put forward, the Ministry of Labour reached the conclusion that the publication of the extension orders did not in any way constitute a violation of the standards invoked and, since no other alternative solution existed, these orders were therefore issued. Besides, in the Government's view, this solution was consistent with the general interest.
21. 219. The Government concludes by stating that its conduct is in no way contrary to the principles contained in Conventions Nos. 87 and 98. The extension orders do not violate the right to collective bargaining since they were only issued when negotiations had reached a deadlock and after all the voluntary forms of settlement of the conflict between the Federation of Textile Workers and the employers' associations in this sector had been exhausted. It adds that the publication of these orders in no way prevents the continuation of voluntary negotiation processes. The Government further asserts that the disputed agreements appear to be generally more favourable and provide for wage increases 21 per cent higher than the increase in the cost of living, which is 20 per cent. It also states that its usual practice is to extend the agreements that provide for the best conditions of work. This practice is based on the conviction that the agreements offering the best conditions of work should in principle be those which have been concluded by the most representative trade union organisations. According to the Government, this was the case of the extension orders mentioned by the Federation. Moreover, it recalls that an identical situation had occurred at the time of extending the horizontal agreements in the textile sector in 1980, when the Government's action was not disputed. It points out that it has always followed the same criteria as far as extension is concerned, regardless of whether the trade unions which had concluded the agreements to be extended belonged to one or other of the Confederations existing in the country.
22. 220. As for the alleged repression by the police forces, the Government states that it received no information indicating that the police had gone beyond the strict limits of maintaining law and order.

C. The Committee's conclusions

1. 221. In this case, the complainants' and the Government's versions of the facts clearly contradict each other. The complainants claim that collective agreements, which they describe as hardly advancing the workers' interests and even restricting the rights acquired by them and which were signed by a trade union representing no more than 5 per cent of the workers in that branch, were imposed by an extension order on all the workers in the textile sector, at a time when the complainant Federation, representing 90 per cent of the workers, was negotiating a revision of the 1980 Collective agreement which it had signed with the employers and which governed working conditions in the textile industry. The Government, on the other hand, claims that the labour dispute between the employers and the complainant Federation was at a deadlock. Since rival trade union organisations had at the same time reached an over-all agreement with the employers for safeguarding the general interest in this sector, the Government decided to extend to the sector the agreements concluded between certain trade union organisations, including the SINDETEX, and the employers' associations, which the Government considered to contain the most favourable provisions, especially as regards wage increases.
2. 222. For its part, the Committee is unable to determine whether the provisions of one collective agreement or another, in this case the 1980 agreement as compared with the 1981 agreement, are more or less favourable. However, and this is the essential point, the Committee notes that in fact the agreements of 16 November 1981, published on 21 November, expressly provide that they supersede any other collective labour agreements applicable to the sector and to the matters covered by the agreements being extended, thereby revoking the previous rights governing working conditions in the textile industry. In these circumstances, the Committee considers that before announcing the extension, the Government, faced with the opposition of the complainant Federation - which alleges that it represents 90 per cent of the workers of this sector - to an agreement it regarded as unprogressive, could have carried out an objective appraisal of representativity of the trade union associations in question.
3. 223. In the absence of such an appraisal, the extension of an agreement can in fact be imposed on the entire sector of activity contrary to the views of the organisation representing most of the workers in the category covered by the extended agreement, thus limiting the right of free collective bargaining of that majority organisation. Moreover, this system makes it possible to extend agreements containing provisions which result in a worsening of conditions of work and even in an erosion of trade union rights. In. this respect, the Committee points out that the Government itself has stated that the conditions of work fixed by a collective agreement may be lowered by a subsequent agreement if the partners consider that it is more favourable as a whole than the former one, the most favourable aspect of working conditions being determined not point by point, but agreement by agreement. The Committee considers that such situations can only be detrimental to a harmonious development of labour relations in a given sector. Consequently, it trusts that it will be possible to avoid situations of such a nature in future.

The Committee's recommendations

1. 224. In these circumstances, the Committee recommends the Governing Body to approve the following conclusions:
   • In this case, the Committee considers that before announcing the extension of the agreement, the Government, faced with the opposition of the complainant Federation - which alleges that it represents 90 per cent of the workers of this sector - could have carried out an objective appraisal of the representativity of the trade union organisations in question. It trusts that it will be possible to avoid situations of such a nature in future.