Definitive Report - Report No 239, June 1985

Case No 1314 (Portugal) - Complaint date: 26-OCT-84 - Closed

1. 169. The complaint of the General Confederation of Portuguese Workers - National Inter-Union (CGTP-IN) is contained in a communication of 26 October 1984. The Government replied in a communication dated 26 April 1985.
2. 170. Portugal has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087) , and the Right to Organise and Collective Bargaining Convention, 1949 (No.098).

A. Allegations of the complainant Confederation

1. 171. In the present case, the CGTP-IN alleges that the Government has interfered in the trade union movement in order to favour one organisation over another, and considers that it has been discriminated against in connection with workers' participation in a state body.
2. 172. The complainant organisation explains that Decree No. 102/84 of 29 March 1984 set up a National Apprenticeship Committee with wide-ranging powers to define and implement apprenticeship policy. This Committee is tripartite and consists of five government representatives, two representatives of employers' associations and two representatives of trade union confederations (section 19 of the Decree).
3. 173. The CGTP-IN adds that the non-governmental members were appointed without it having been consulted beforehand. All the representatives of the trade union organisations and their substitutes were appointed by a single organisation, the General Union of Workers (UGT), and CGTP-IN was thus prevented from sitting on this Committee.
4. 174. According to the complainant organisation, the Government has not merely ignored the rights of the most representative organisation. It has even denied the CGTP-IN rights of all kinds, preventing it from being represented on a permanent body, whereas it has recognised all the rights of the UGT. The CGTP-IN explains that this attitude on the part of the Government is in contradiction with its repeated declarations to the International Labour Conference respecting the annual rotation of Portuguese Workers' delegates, when it affirmed to the Credentials Committee that there was no objective reason to make a distinction between the two organisations. According to the complainant, these statements, although made in another context, mean that, in the mind of the Government itself, there is no doubt as to the aptitude of the CGTP-IN to represent Portuguese workers.
5. 175. The present case may be summed up as follows: (a) the law provides for the appointment of two representatives of trade union confederations on the National Apprenticeship Committee but does not describe the procedure for their appointment;
   • (b) the Government might therefore choose between two solutions:
   • (c) either appointment by direct ballot (majority or proportional) among all existing trade union organisations;
   • (d) or appointment by national trade union confederations;
   • (e) the Government opted for the second solution, as has been shown, by the appointment of representatives from UGT;
   • (f) however, according to this procedure, the CGTP-IN - a national confederation whose aptitude to represent Portuguese workers is not even contested by the Government - ought to have been consulted and, in the event of disagreement with the other organisation concerned, to have been allowed to appoint at least one of the two trade union representatives provided for by law;
   • (g) however, the CGTP-IN was neither consulted nor invited to appoint any trade union representative.
6. 176. The result of the Government's decision is that the CGTP-IN has been prevented from participating in the definition of vocational training policies under the apprenticeship scheme, and this, in the view of the CGTP-IN, constitutes a violation of the principle that "when sponsoring joint committees dealing with matters affecting the interests of workers, governments should make appropriate provision for the representation of different sections of a trade union movement having a substantial interest in the questions at issue" (Freedom of association, Geneva, ILO, 1972, para. 357) and thus constitutes "clear case of discrimination affecting the principle of freedom of association" (op. cit., para. 359). The complainant organisation recalls that the Committee of Experts on the Application of Conventions and Recommendations, in its General Survey of 1983, stated the following: "Government action may influence the choice of workers regarding the organisation to which they intend to belong by placing one organisation at an advantage or at a disadvantage in relation to the others. In this connection, the Committee on Freedom of Association has recalled that by placing one organisation at an advantage or at a disadvantage in relation to the others, a government may either directly or indirectly influence the choice of workers ... since they will undeniably want to belong to the union best able to serve them, even if their natural preference would have led them to join another organisation for occupational, religious, political or other reasons" (Freedom of association and collective bargaining, Geneva, ILO, 1983, para. 146, pp.48-49.)
7. 177. In addition, the CGTP-IN states that, by preventing it from participating in the National Apprenticeship Committee and hence from defining the vocational training policy of the apprenticeship scheme, the Government has intervened in such a manner as to restrict or impede the lawful exercise of the recognised rights of workers' organisations to organise their administration and activities and formulate their programmes in full freedom. According to the complainant organisation, the Government has thus violated Article 3 of Convention No. 87.

B. The Government's reply

1. 178. In its reply of 26 April 1985, the Government refers to the constitutional and legislative provisions governing democratically freedom of association in Portugal. It explains that two trade union confederations supporting different political and trade union tendencies, namely the General Confederation of Portuguese Workers (CGTP-IN) and the General Union of Workers (UGT), have been legally registered with the Ministry of Labour and Social Security. However, neither the Constitution nor the legislation contain criteria for assessing the representativity of a trade union. This has led in practice to the near impossibility of making the desired assessment, and whenever concrete questions involving the application of criteria of representativity arise the two confederations systematically refuse to provide the Government with the elements of information that would undoubtedly provide a clear and legitimate basis for settling the issue.
2. 179. As an example, the Government mentions that the trade union bodies who are members of institutions associated with one or other of the trade union confederations have been consulted in vain regarding extension orders. It explains that it has accordingly chosen to regard both confederations as being highly representative.
3. 180. However, it regrets that the CGTP-IN has itself chosen not to participate in tripartite action instituted by the Government. For instance, the CGTP-IN has refused to participate in any way in the Permanent Council for Labour Dialogue, an institution set up in 1984 by Legislative Decree No. 74184 to analyse and discuss labour problems, particularly those of apprenticeship. Under section 5 of the Legislative Decree, this Council is to include three representatives from the CGTP-IN executive, one of them being the Co-ordinating Secretary, and three representatives from the National Secretariat of the UGT, one of them being the General Secretary. The task of the Council is to advise the Government, at the latter's request, on restructuring and socio-economic development policies and their implementation, or to adopt proposals and recommendations on its own initiative. Another of its tasks is to propose solutions with a view to ensuring the regular operation of the economy, with particular regard for repercussions in the social and occupational field. Right from the beginning, however, the CGTP-IN has failed to occupy the place that was its by right, in accordance with section 5 of the Legislative Decree, and it has thus made the simultaneous consultation of all the social partners impossible.
4. 181. Moreover, according to the Government, there are clear indications from the trade union bodies that are members of the CGTP-IN that the latter is uninterested in participating in the National Apprenticeship Committee. Thus, a federation affiliated to the CGTP-IN refused to take its place in the Vocational Training Centre for the Food and Drink Industries, in which it had been invited to participate, on the pretext that a trade union that was a member of another trade union confederation was represented.
5. 182. The Government concludes by stating that the responsibility for the lack of consultation rests with the CGTP-IN itself, since it has held aloof from tripartism, either directly, within the Permanent Council for Labour Dialogue, or indirectly, in the case of the above-mentioned Vocational Training Centre. In view of the Government, anyone who takes a stand that is incompatible with his desired objectives has no legitimate grounds for complaint, and the allegation of the complainant is thus without foundation.

C. The Committee's conclusions

1. 183. The Committee notes that the present complaint refers to the conditions for the institution of a tripartite body by the Government.
2. 184. The complainant organisation affirms that it was not even consulted on the appointment of the non-governmental members of a national committee entrusted with defining and implementing apprenticeship policies. The Government replies that the complainant organisation itself has held aloof from the tripartite institutional framework by refusing to participate in the Permanent Council for Labour Dialogue, where a place had been reserved for it by law, and in the Vocational Training Centre for the Food and Drink Industries, in which it had been invited to participate, on the grounds that a rival trade union organisation was represented in these bodies.
3. 185. Although inter-union rivalry does not fall within the purview of the freedom of association Conventions, and although the Committee considers it inopportune to examine disputes of competence between trade unions, the fact remains that, even if the CGTP-IN had refused to participate in tripartite bodies set up by the Government, and in particular the Permanent Council for Labour Dialogue, the Government should have consulted the CGTP-IN, which according to the Government's own statements is highly representative, when appointing the workers' members of the National Apprenticeship Committee.
4. 186. The Committee trusts that any future decisions concerning the participation of workers' organisations in a tripartite body will be taken in full consultation with all the trade union organisations whose representativity has been objectively proved.

The Committee's recommendations

1. 187. In these circumstances, the Committee recommends the Governing Body to approve the present report, and in particular the following conclusion:
   • The Committee trusts that any future decisions concerning the participation of workers' organisations in a tripartite body will be taken in full consultation with all the trade unions whose representativity has been objectively proved.