Definitive Report - Report No 335, November 2004

Case No 2325 (Portugal) - Complaint date: 01-MAR-04 - Closed

Allegations: The complainant alleges lack of dialogue with the employer and failure to consult it in the adoption of legislation directly affecting it

1. 1240. The complaint is contained in a communication from the Occupational Association of Professional Police Officers (ASPP-PSP) dated 1 March 2004.
2. 1241. The Government sent its observations in communications dated 22 March and 5 May 2004.
3. 1242. 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. 1243. The complainant organization, the Occupational Association of Professional Police Officers, states that as a trade union established in accordance with Act No. 14/2002, it has the right to participate, in particular, in the amendment of the statutory pensions scheme and in defining the underlying principles of the training and further training policy of the Public Security Police (PSP), and to be consulted in the drafting of legislation regulating the PSP which is not subject to negotiation (section 38 of the Act). Moreover, section 32 of the Act lays down the principle of collective bargaining based on good faith, which includes responding promptly to requests for meetings and the presentation of proposals and on the principle that both parties may request information from one another.
2. 1244. The complainant organization alleges the following: (a) lack of dialogue by the Minister of Internal Administration since January 2003, in the form of refusal to receive its representatives; (b) failure to take action to resolve the issues raised in the memorandum presented to the Minister of Internal Administration in June 2002, which were directly related to PSP personnel and deemed urgent by the complainant organization; (c) adoption of Decree No. 939/2003 of 30 June by the Minister of Internal Administration, establishing regulations on the service evaluation system for personnel performing police duties in the Public Security Police, without prior consultation of the complainant organization, despite the fact that the preamble to the Decree states that it was negotiated by the occupational organizations of the PSP, in accordance with the law; (d) the fact that the Ministry of Internal Administration drafted a preliminary draft Decree intended to create a new post in the PSP, that of “chief”, with a justification note stating that the instrument was negotiated with the occupational associations of the PSP, in accordance with Act No. 14/2002, which does not correspond to reality.
3. 1245. The complainant organization alleges that on 8 April 2002 its National Executive requested an audience with the Minister of Internal Administration, which was only granted two months later, on 11 June. At that meeting, the complainant organization presented the Minister with a memorandum listing 39 issues which it considered as needing an urgent solution. The Minister committed himself to responding to these concerns. However, to date no steps have been taken in that direction. In September 2002, the complainant organization was informed that the Ministry was still examining the issues. Given the total lack of action by the Ministry, the complainant organization held a protest in front of it on 12 December 2002.
4. 1246. On 7 January 2003, at the last time the Ministry received the complainant organization, it was informed that a solution had been found for four of the issues raised, which in fact had little impact on the magnitude of the problems that had been mentioned. The complainant organization emphasizes that the Ministry has refused to receive it for over a year, and that from April 2002 to January 2003 the so-called consultations were devoid of genuine dialogue.
5. 1247. Despite this lack of dialogue, the Ministry of Internal Administration approved the regulations on the service evaluation system for personnel performing police duties in the Public Security Police (Decree No. 939/2003 of 30 June 2003), which wrongly states that that Decree was negotiated with the occupational associations of the PSP in accordance with the law.
6. 1248. Moreover, the Ministry of Internal Administration decided to establish a new post in the PSP, that of “chief”, and, in the justification note attached to the preliminary draft instrument creating the post, states that it was negotiated with the occupational associations of the PSP in accordance with the law. The complainant organization alleges once again that the Ministry made a false statement and acted in bad faith, since the complainant was not consulted at any time on this subject. The complainant organization maintains that this constitutes a violation of Convention No. 98 and Act No. 14/2002 of 19 February.

B. The Government’s reply

1. 1249. In its communication of 5 May 2004, the Government sends information on the various allegations contained in the complaint. As regards the alleged lack of dialogue by the Ministry of Internal Administration, the Government lists the meetings at which it received the complainant organization and attaches documentary evidence in support of this. Specifically, meetings were held on 12 April (four days after the complainant organization requested an audience, and not two months, as alleged), 11 June, 10 September and 20 December 2002; 7 January, 3 February, 14 and 16 May and 11 June 2003; and 17 February 2004.
2. 1250. As regards the issues presented by the complainant organization to the Ministry of Internal Administration in the memorandum on 11 June 2002, on which it alleges that the Government has not taken any action, the Government states that the following instruments have been adopted: Decree No. 1522-A/2002 of 20 December, approving regulations on staff competitions for personnel performing police duties in the PSP; Decree No. 881/2003 of 21 August, approving regulations on the service evaluation system for personnel performing police duties in the PSP; Legislative Decree No. 228/2003 of 27 September amending the Staff Regulations of the PSP; and Joint Order No. 997/2003, approving regulations on drug and alcohol abuse testing. In addition, in a communication to the National Director of the PSP dated 21 November 2003, the Minister of Internal Administration considered that the solution of a number of issues was a matter of priority, and working parties were set up to this effect in the National Directorate of the PSP. These were charged with the task of preparing the draft instruments to revise the Act on the organization and functioning of the PSP and the Staff Regulations of the PSP. The Government states that, in accordance with Act. No. 14/2002 of 19 February, the occupational associations of the PSP were sent the draft Legislative Decree to establish the compensation to be paid to members of the PSP and their families in the event of death or permanent invalidity as a result of occupational accidents.
3. 1251. As regards the allegation that the complainant organization was never consulted or contacted with a view to negotiating the regulations on the service evaluation system for personnel performing police duties, the Government attaches documents which in its view prove that the complainant organization participated in the meetings held in the Ministry of Internal Administration on 16 May and 11 June 2003, at which precisely these draft regulations were negotiated in accordance with Act. No. 14/2002.
4. 1252. As regards the allegation that the Ministry of Internal Administration had stated in the justification note of the preliminary draft legislation intended to establish the post of “chief” as director of personnel performing police duties in the PSP, that the procedures established in Act No. 14/2002 had been complied with when they had not in fact taken place, the Government emphasizes firstly that this is only a preliminary draft Legislative Decree sent by the Minister of Internal Administration to the National Director of the PSP in order for him to give his views on the subject. It maintains that once his opinion has been obtained, if the draft is negotiated with the trade union organizations, only then will the justification note contain this indication. It points out that even before the complaint was presented the complainant organization was convened, in a communication from the Director of the Office of the Minister of Internal Administration dated 5 February 2004 (attached to the complaint), to a meeting to negotiate that project, which was held on 18 February 2004 and was attended by the complainant organization, which did not make any observations on the draft.
5. 1253. Lastly, the Government emphasizes that it is clear and obvious from the documents attached to its observations that the allegations put forward by the complainant organization as constituting violations of the right to participate and bargain collectively do not correspond to the facts: the documents prove that, contrary to what was alleged, the representatives of the complainant organization were received in the Ministry of Internal Administration on ten occasions between 12 April 2002 and 18 February 2004, including the period from January 2003 to the date of the complaint (in the latter period alone, a total of four meetings were held).

C. The Committee’s conclusions

1. 1254. The Committee observes that this case concerns allegations of: (a) a lack of dialogue by the Minister of Internal Administration with the complainant organization, the Occupational Association of Professional Police Officers, since January 2003, in the form of refusal to receive its representatives; (b) failure to take action to resolve the issues considered as urgent by the complainant organization; and (c) failure to consult the complainant organization concerning the adoption of legislation directly affecting it. The complainant organization points out that this attitude by the public authorities constitutes a violation of Convention No. 98.
2. 1255. The Committee observes that the documentation sent by the Government shows that the complainant organization did in fact participate in a number of meetings with the Ministry of Internal Administration and was consulted on the different regulations adopted, in particular, Decree No. 939/2003 of 30 June on regulations on the service evaluation system for personnel performing police duties in the Public Security Police, and the preliminary draft Decree on the creation of a new post of chief in the police service.
3. 1256. In any case, the Committee emphasizes that Article 5 of Convention No. 98 provides that the extent to which the guarantees provided for in the Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.
4. 1257. In light of this provision, there is no doubt that the International Labour Conference intended to leave it to each State to decide the extent to which it considered it appropriate to grant the rights provided for in the Convention to members of the armed forces and the police; in other words, ratifying States are not obliged to recognize the rights set out in the Convention to these categories of workers [see 332nd Report, Case No. 2240 (Argentina, para. 264)]. Accordingly, while a number of member States have recognized the right to organize and bargain collectively for the police, it is not for the Committee to make a determination concerning the recognition of such rights or their application in practice.
5. 1258. In these circumstances, the Committee considers that this case does not call for further examination.

The Committee's recommendations

1. 1259. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.