Definitive Report - Report No 251, June 1987

Case No 1382 (Portugal) - Complaint date: 03-SEP-86 - Closed

1. 134. The complaint of the National Federation of Public Service Unions (FNSFP) is set out in a communication of 3 September 1986. The Government presented its observations in communications of 3 August 1986 and 24 April 1987.
2. 135. 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. 136. The National Federation of Public Service Unions, an organisation affiliated to the General Confederation of Portuguese Workers (CGTP-IN), which claims to represent the majority of workers in the health sector except physicians and nursing personnel, alleges a violation of the Labour Relations (Public Service) Convention (No. 151) by the Government of Portugal, which has ratified that Convention.
2. 137. The Federation makes a specific allegation that the Government, in the person of the Minister of Health, has failed to comply with Articles 6 and 7 of Convention No. 151, which provide that: Such facilities shall be afforded to the representatives of recognised public employees' organisations as may be appropriate in order to enable them to carry out their functions promptly and efficiently ... and that: Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.
3. 138. The complainant Federation states that on many occasions from November 1985 onwards it has requested an audience with the Minister of Health in order to discuss various questions relating to workers in the health sector - questions which are recorded in a memorandum annexed to the complaint - but has received no reply from that member of the Government. For the same purposes it states that it has gone so far as to ask - more than once - the Prime Minister to intervene. Since that approach also went unanswered, the workers in the sector in question have, as a means of bringing pressure to bear, held rallies near the Ministry of Health and called strikes: first a one-day strike on 5 June 1986 and then, after issuing a strike notice, a second strike scheduled for 20 June 1986.
4. 139. The Federation further alleges that 28 leaders of the Union of Public Service Workers of the South and Azores, one of its affiliated trade unions, and other trade union activists were arrested by the security police while they were waiting in the street, near the Ministry of Health, to be granted the audience they had requested, and were detained from 7 to 9 July 1986. They were taken to the police station where, after they had identified themselves, a charge was laid against them.

B. The Government's reply

1. 140. The Government takes the view that the complaint made in this case should be examined from two angles: first as regards its legislative aspect, i.e. by looking at the questions which the complainant organisation describes in general terms as "various questions relating to workers in the health sector" in relation to the provisions of Convention No. 151 and of Legislative Decree No. 45-A/84 giving effect to it in Portuguese law; and secondly in its factual aspect.
2. 141. With regard to the legislative aspect of the case, the Government begins by drawing attention to the flexibility of the provision laid down in Article 7 of Convention No. 151 which, without prejudice to national conditions in each member State, leaves open the possibility of resorting, in order to determine conditions of employment in the public service, to methods other than collective bargaining on condition that they allow representatives of public employees to participate in the determination of these matters.
3. 142. Portugal, after ratifying Convention No. 151, adopted Legislative Decree No. 45-A/84 instituting a mixed system of collective bargaining and participation that delimits those matters on which the right of collective bargaining is recognised and those in which the right of participation is recognised. Thus collective bargaining is required to deal compulsorily and exclusively with the matters specified in section 6, subsection 1, of the Legislative Decree, namely: salaries and other benefits in the nature of remuneration, retirement pensions and the reform of social and supplementary benefits. Such bargaining may be proposed, under section 7, by any of the parties. According to the Government, however, none of the matters listed in the memorandum addressed by the Federation to the Ministry of Health falls within the scope of the above-mentioned provisions, so that any collective bargaining on those matters and, with it, any obligation on the Government to act on the trade union organisations' proposal are precluded by law.
4. 143. The Government states that the right of participation is recognised by section 9 of the Legislative Decree and must be exercised when legislation is being prepared on the general or special regime of the public service or on the management of social security institutions and other institutions designed to serve the interests of the workers, and when the execution of economic and social plans is being checked. By the terms of that section, it is in the nature of a consultation. Consequently the initiative in calling for participation must be taken, not by the trade union associations, but by the Government; therefore, since there is no doubt that the Ministry of Health has consulted the trade union associations concerned, the complainant Federation's accusation has no basis in law.
5. 144. The Government considers it important to point out that some of the subjects mentioned in the memorandum which the complainant Federation wished to discuss with the Ministry of Health are outside the scope of collective bargaining and even of participation. Indeed, such questions as "substantive definition", "regime of installation", "restructuring of management" and "composition of the Lisbon District Assembly", which are mentioned in the memorandum, are topics which by their very nature expressly preclude, under section 12 of the aforementioned Legislative Decree, any possibility of bargaining or participation.
6. 145. The Government concludes that none of the subjects at issue qualifies for collective bargaining and that, with regard to the subjects on which it is possible for industrial organisations to participate, the Ministry of Health has held consultations in accordance with the provisions of law.
7. 146. As to the facts, the Government affirms that the Ministry of Health has always taken care to reconcile the priorities which the Government assigns to its activities with respect for the functions, powers and competence of trade union associations. Thus it has always endeavoured to maintain contacts with all trade unions concerned and these have become closer since June 1986. It mentions as examples the meetings which have been held since January 1986 with the Union of Diagnostic and Therapeutic Technicians for the purpose of drafting legislation to define the functions, powers and skills of the categories of technical staff assigned to diagnosis and therapy; and those held since February 1986 with the Union of Nurses of the North, Centre, South and Madeira Autonomous Region to discuss the question of bringing under the Ministry of Education the instruction given in the course of nurses' training; reorganising career nursing on a new basis; and re-examining the terms on which nurses qualify for retirement. The drafting of legislation on these latter points has already been completed.
8. 147. Apart from those mentioned above, meetings have also been held with other trade union associations such as the Public Administration Workers' Union (affiliated to the General Union of Workers), the Union of Paramedical Technicians of the North and Centre, the Union of Health and Social Security Workers and the physicians' trade unions, through their co-ordinating body.
9. 148. With specific reference to the complainant Federation, the Government adds that an initial meeting was held in the Office of the Minister of Health on 2 October 1986. Since that date, further meetings have been held with the Federation, but not with it alone, at regular intervals to deal with various questions such as the drafting of several legislative texts concerning in particular the implementation of the restructuring of 1985; the regulation of competitive entry and access to the profession of diagnostic and therapeutic technicians; the regulations establishing a classification for the service of diagnostic and therapeutic technicians; the careers of auxiliary staff of health services and establishments; the specific career of staff appointed to direct health services; the career of auxiliary health technicians; adjustments to certain categories and career patterns in order to correct situations deemed anomalous (e.g. in the case of hospital department heads, midwives, parasitological prospecting assistants, and auxiliaries assigned to the control of certain diseases); and conditions for the admission of staff to health services.
10. 149. The Government states that in other areas the Ministry plans to hold discussions with the complainant Federation in the near future in accordance with the list of demands it has presented.
11. 150. Hence the Government considers that the assertions made in the communication from the complainant organisation last September are meaningless and baseless inasmuch as the Ministry of Health, as part of the process of keeping in touch with all the trade union organisations concerned, began a series of regular contacts in October 1986 with that Federation.
12. 151. It categorically denies the allegation that demonstrators have been arrested on the orders of the Minister of Health. It states that the security police are under the authority of another ministerial department and that, if arrests have been made, they were neither ordered nor demanded by the Minister of Health.
13. 152. The Government points out that in previous cases the Committee on Freedom of Association has come to the conclusion that allegations concerning measures taken against trade union activists called for no further detailed examination if the measures in question were prompted, not by trade union activities, but merely by actions that went beyond the trade union framework either by causing a breach of law and order or by being political in character.
14. 153. The Government observes incidentally that it is symptomatic that the complainant Federation, which is not the only trade union association representing the workers in the health sector, begins by excluding from its complaint the physicians and nurses who, so far as human resources are concerned, constitute the linchpin of this sector. It adds that the nursing staff have confidence in the good faith of the Minister of Health, as witness a press release dated 26 January 1987 which the Government annexes to its reply.
15. 154. The Government states that the trade union activists who occupied the public highway for several days, interfering with traffic and the freedom of movement of pedestrians and disturbing the peace, were questioned by order of the police authorities for the purpose of checking their identity and recording their statements in official reports. The Government repeats, however, that the Minister of Health had nothing to do with such arrests, which he neither ordered nor demanded.
16. 155. The Government states that, as soon as the Ministry of Health saw fit to have studies made with a view to possible revision of the law on one or other aspect of the regulations governing workers in the health sector, the Department began getting in touch with the trade union organisations in accordance with a procedure which from the formal standpoint should be regarded as a method of performing the duty of consultation: in order words, of enabling the trade union associations to exercise their right of participation. The Government attaches to its reply a document which sets out in chronological order the start made on consultations with various trade union associations. This document proves that the complainant Federation and its affiliated trade unions have been included among the trade union associations consulted on a footing of strict equality with the other associations, and that no special status whatsoever, either favourable or unfavourable, has been assigned to it.

C. The Committee's conclusions

1. 156. The Committee notes that the complaint concerns the alleged refusal of the Government to receive the complainant trade union organisation, which wished to discuss with it questions concerning workers in the health sector. According to the memorandum attached to the complaint, the questions which the complainants wished to discuss concerned the following points: (1) the regional administration of health (substantive definition); regime of installation (management, competitions and promotion); composition of the Lisbon District; (2) hospitals (restructuring of management; fixed-term appointments; entry competitions; careers); (3) the careers of drivers, general health service personnel and diagnostic and therapeutic technicians.
2. 157. According to the complainants, the Government refused to receive them and had 28 leaders of the Union of Public Service Workers of the South and Azores detained for two days, from 7 to 9 July 1986. According to the Government, on the other hand, it did not refuse to receive them and, if the police undertook questioning to check identities, the Minister of Health had nothing to do with such arrests; on the contrary, as soon as he decided to consider revising the law on the regulations governing workers in the health sector, he included the complainant Federation among the associations consulted.
3. 158. The Committee notes with concern, first of all, that trade union leaders and militants were taken in for questioning by the police and kept for two days in the course of an operation undertaken in order to present their responsible Minister, i.e. the Minister of Public Health, with demands of an industrial nature. In this connection the Committee points out that it has always considered that the detention of trade union leaders and militants on the ground that breaches of the law may take place in the course of a strike or a peaceful public demonstration involves a serious danger of infringement of trade union rights.
4. 159. Secondly, the Committee notes that, according to the Government, consultations are in progress concerning revision of the law on the health service personnel regulations and the complainant organisation, together with the other representative organisations in this sector, is consulted on the subject. In this connection the Committee hopes that the consultations in question will make it possible in the near future to adopt health service personnel regulations in which those concerned have confidence.

The Committee's recommendations

1. 160. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) The Committee notes with concern that trade union leaders and activists appear to have been held for questioning by the police for two days in the course of an operation undertaken in order to present the Ministry of Health with demands of an industrial nature.
   • b) The Committee points out that trade unions should respect legal provisions which are intended to ensure the maintenance of public order, but that the public authorities should, for their part, refrain from any interference which would restrict the right of trade unions to organise the holding and proceedings of their meetings in full freedom.
   • c) The Committee invites the Government to ensure that the consultations in progress will make it possible in the near future to adopt health service personnel regulations in which those concerned have confidence.