Definitive Report - Report No 234, June 1984

Case No 1251 (Portugal) - Complaint date: 27-DEC-83 - Closed

1. 156. The complaint submitted by the National Trade Union of Bank: Executives and Technicians appears in a communication dated 27 December 1983, completed by a letter dated 3 February 1984. The Government sent its reply in a communication dated 26 April 1984.
2. 157. 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 complainant's allegations

1. 158. In its communication of 27 December 1983, the National Trade Union of Bank Executives and Technicians alleges that although it completed the legal formalities governing the registration of trade union associations on 9 June 1983, its constitution was not published (although it was sent to the Ministry of Labour on 24 June for publication in the Labour and Employment Bulletin), on the express instructions of the Secretary of State for Labour following pressure from the already existing trade unions of bank employees and by the General Union of Workers; as a result of this the organisation was prevented from exercising its activities (section 10(5) of Legislative Decree No. 215-B/75 dated 30 April 1975).
2. 159. The complainant states that in a communication from the Secretary of State for Labour which it received in November 1983, it was informed that the time limit of 30 days stipulated in section 10(3) of the above-mentioned Legislative Decree for the publication of its constitution was not of an obligatory nature and that the administrative authorities had requested by letter an opinion from the Public Prosecutor on the supposed lack of definition of the "scope" of the new association (i.e. the type of workers represented). The complainant includes in the annex to its complaint this document from the Secretary of State for Labour which makes reference not only to the question of the definition of the type of workers represented by the trade union, contained in article 3 of its constitution, but also to the existence of other already established trade unions whose purposes and geographical coverage are the same as those of the proposed new trade union. Furthermore, it sets forth in support of its allegations arguments on the existence of the principle of trade union unity as the basis for the legal provisions governing trade unions.
3. 160. In its communication of 3 February 1984, the complainant states that the Ministry of Labour pointed out that although it had ordered the registration, it did not recognise the legal personality of the National Trade Union of Bank Executives and Technicians, contrary to the provisions of section 10(1) of the Legislative Decree, since it was still studying the legality of its constitution which, according to the complainant, is a matter falling exclusively within the competence of the courts.

B. The Government's reply

1. 161. The Government states that the constitution of the National Trade Union of Bank Executives and Technicians was not published within the legal time limit of 30 days following its receipt (9 June 1983) and registration because the Government considered that doubts still subsisted concerning the type of workers represented by the organisation as defined in article 3 of its constitution: "The trade union represents bank executives and technicians bound by a contract of employment to credit institutions or similar institutions fulfilling functions specific to banking activities". The Government points out in this connection that the occupational categories "executive staff" and "technicians" specific to banking activities have not been identified and, as a consequence, the definition of the type of workers represented by the organisation cannot be considered as sufficient, which in this case would constitute an infringement of section 14(a) and section 15 of Legislative Decree No. 215-B/75 which requires all trade union organisations to define the category of workers to be represented by them.
2. 162. The Government adds that the fact of raising the question (which is all the more serious since trade union organisations with the same grade of organisation and territorial coverage already exist) has resulted in the suspension of the results of registration, in particular the publication of the constitution of the National Trade Union of Bank Executives and Technicians. At the same time, in November 1983, an opinion was requested from the Office of the Public Prosecutor, the official advisory service of the Government, with a view to determining what should be the proper attitude of the public administration as regards constitutions of trade union organisations which are deposited for registration and publication and in which the corresponding category of workers is not rigorously defined. The trade union was informed of this request in November 1983.
3. 163. The Government points out that on 10 February, the Office of the Public Prosecutor issued an opinion that if, during the preliminary inquiries carried out by the Ministry of Labour and Social Security prior to the registration of trade union organisations, the only reason for refusal was "the existence of doubts resulting from differing but perfectly plausible interpretations of the juridical aspect of any given formality, the Ministry of Labour and Social Security must then carry out the registration and subsequent procedure". In conclusion, the opinion stipulates that the terms of article 3 of the constitution of the National Trade Union of Bank Executives and Technicians are not contrary to the registration and subsequent formalities as provided for in section 10 of Legislative Decree No. 215-B/75.
4. 164. In conclusion, the Government states that on receipt of this opinion, the Secretary of State for Labour ordered, on 12 February 1984, the publication of the said constitution in the Labour and Employment Bulletin, which was done on 15 February 1984. According to the Government, the delay in the publication of the constitution was due solely to the doubts concerning compliance with the compulsory provisions of the law and the due respect of legality.

C. The Committee's conclusions

1. 165. The Committee notes that this case refers to the suspension by the Ministry of Labour of the results of the registration, dated 9 June 1983, of the National Trade Union of Bank Executives and Technicians on the grounds that article 3 of its constitution gave rise to doubts concerning the definition of the scope of the said trade union; this resulted in the non-publication of its constitution in the Labour and Employment Bulletin which, under the provisions of section 10 of Legislative Decree 215-B/75 dated 30 April 1975, must be ordered by the Ministry of Labour within 30 days of receipt.
2. 166. The Committee notes that according to the complainants' allegations this suspension was the result of pressure exercised by existing bank employee trade unions and by the General Union of Workers and that only five months later did the Secretary of State for Labour request an opinion from the Office of the Public Prosecutor.
3. 167. The Committee observes that once the opinion was given - to the effect that if the only grounds for refusal to register are the existence of divergent but perfectly plausible interpretations concerning the juridical aspects of the constitution formalities, then the Ministry of Labour is required to register and subsequently publish the constitution - the necessary formalities for publication were then carried out. The Committee notes that from that date, that is 15 February 1984, the new trade union was in a position to exercise its activities.
4. 168. The Committee must point out that the trade union normally ought to have been able to exercise its activities 30 days after depositing its constitution, and the publication of the latter in the Labour and Employment Bulletin, that is as from 9 July 1983, but that it was able to do so only as from 15 February 1984.
5. 169. The Committee notes that the trade union, which has now been normally established, has acquired legal personality and is in a position to exercise fully its activities.

The Committee's recommendations

1. 170. In these circumstances, the Committee recommends the Governing Body to approve the present report and, in particular, the following conclusion:
   • The Committee notes that the measure to suspend the effects of the registration of the constitution of the complainant organisation was lifted after several months by the publication of its constitution as soon as the opinion of the Public Prosecutor was given. Thus the National Trade Union of Bank Executives and Technicians has now acquired legal personality and is in a position to exercise fully its activities.