Interim Report - Report No 358, November 2010

Case No 2729 (Portugal) - Complaint date: 17-JUL-09 - Closed

Allegations: Adoption of legal provisions that are prejudicial to the exercise of the right to bargain collectively; restrictions on the right to bargain collectively in a postal and telecommunications company

1. 868. The complaint was presented in a communication from the General Confederation of Portuguese Workers – National Inter-union Body (CGTP–IN) dated 17 July 2009.
2. 869. In the absence of any reply from the Government, the Committee has been obliged to adjourn its examination of the case on two occasions. At its meeting in June 2010 [see 357th Report, para. 5], the Committee addressed an urgent appeal to the Government drawing its attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of these cases if its observations or information have not been received in due time. To date the Government has not sent any information.
3. 870. 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. Allegations of the complainant organization

1. 871. In communications dated 17 July 2009, the CGTP–IN alleges that the recent revision of the Labour Code has introduced a new juridical concept, namely the possibility of “choosing” a collective agreement. Specifically, article 479 of the new Labour Code recognizes the right of non-unionized workers to choose individually the collective agreement or arbitration ruling they wishes to have applied to them whenever the company concerned has concluded one or more collective agreements or arbitration rulings. The complainant organization argues that, by placing these workers in a more advantageous position than unionized workers, the provision both discourages unaffiliated workers from joining a trade union and encourages those who are affiliated to cancel their membership; whereas the collective agreement concluded by their union applies to its members automatically, non-members can choose the agreement that suits them best.
2. 872. The CGTP–IN considers that the provision undermines the rights of trade unions and their members and is therefore anti-union in nature. The provisions previously in force allowed collective agreements and arbitration rulings to be extended to non-unionized workers.
3. 873. The complainant organization adds that under article 497 of the Labour Code employers can use their dominant position in the labour relationship to influence non-unionized workers’ choice of collective agreement and even encourage unionized workers to leave their union if the collective agreement it signs is not the one that suits them best. In other words, employers can now promote some unions rather than others, in violation of the ILO’s Conventions.
4. 874. The CGTP–IN also refers to obstacles to collective bargaining that CTT Correios de Portugal, SA – the country’s state-owned postal service administered by the Ministry of Public Works, Transport and Communications – has placed in the way of the Postal and Communications Workers’ Trade Union (SNTCT), which represents around 65 per cent of the workers of the company and allied service, i.e. 7,791 of the roughly 12,000 workers.
5. 875. In 2006, the SNTCT and the other trade union associations signed a collective agreement with the company which the SNTCT denounced on 27 April 2007; negotiations with a view to revising the agreement began on 24 May 2007. On 10 March 2008, the company and one union association representing about 24 per cent of the workers reached an “agreement of principle” that entered into force on 15 April 2008. The company gave all the other trade unions three days to make their position on the subject known. The SNTCT, which chose not to subscribe to the agreement of principle, thus continued to be governed by the 2006 collective agreement. However, the company declared that the 2006 agreement would expire on 8 November 2008 and, having persuaded workers to sign up to it “individually”, began to apply the 2008 agreement also to the SNTCT and announced that it would apply the general provisions of the Labour Code to any workers who refused.
6. 876. The SNTCT requested the Labour Court of Lisbon to issue a judicial injunction to the effect that its members would continue to be covered by the 2006 collective agreement, or else that their rights under the agreement would be stipulated in their contracts. The 2006 agreement did not mention any expiry date – except in the case of wages and other monetary provisions where the relevant clauses were valid for 12 months – but merely specified a minimum period of validity of 24 months. Consequently, the agreement had not expired and would remain in effect until revised by another agreement concluded by the same signatories (clause 3 of the agreement provides for its possible revision but not its expiry). The complainant organization states that any other interpretation constitutes an infringement of the country’s Constitution, but the position of the Ministry of Labour and Social Solidarity is quite different.
7. 877. Moreover, according to article 560 of the Labour Code, the rights deriving from a collective agreement can be curtailed only by another collective agreement which as a whole is more advantageous. However, a comparison of the provisions of the 2006 and 2008 agreements shows clearly that the workers’ rights under the latter are significantly restricted.
8. 878. Arguing that the 2006 collective agreement is no longer valid, the company has reduced to five the number of union officials (for over 1,800 workplaces) who are entitled to full union rights, and to three hours and 45 minutes per day the maximum time available for union activities. This is clearly insufficient and a violation of Article 2 of ILO Convention No. 135. In this way, the company has effectively banned union meetings of the SNTCT and has taken disciplinary action against the participants in those meetings that have been held.
9. 879. Meanwhile, the members of the SNTCT have been invited or pressured to sign up individually to the 2008 collective agreement if they wish to be covered by it and thus entitled to a 2.8 per cent wage increase and other benefits. The company hopes in this way to weaken the SNTCT’s membership, as a result of which the Criminal Investigation and Action Department, which is responsible for investigating criminal charges, has now become involved. The Ministry of Labour has also been arranging conciliation meetings between the SNTCT and the company.
10. 880. The complainant organization states that the unilateral imposition of a collective agreement, negotiated with trade unions with a minimal representation of about 25 per cent of the workers and against the wishes of 65 per cent of the workers represented by the SNTCT, is contrary to the ILO’s Conventions on collective bargaining.
11. 881. The complainant organization adds that, in response to the company’s request for mediation, a mediator appointed by the Ministry of Labour communicated a proposal to the SNTCT on 17 June 2008 which it accepted, along with the other trade union associations, but which the company then rejected. Subsequently the company put forward a number of proposals for voluntary arbitration, whereupon the SNTCT asked the Ministry of Labour to impose a revision of the 2006 collective agreement by compulsory arbitration, on the grounds that the lengthy negotiations that had already taken place had been fruitless and that the company had shown bad faith throughout the process and clearly had no intention to negotiate. Ninety days later the Ministry had still not replied. Instead, at the company’s request it came out in favour of the expiry of the 2006 agreement and published an announcement that it would expire on 7 November 2009. Given the circumstances, the SNTCT appealed to the Circuit Administrative Tribunal to issue provisional measures.

B. The Committee’s conclusions

1. 882. The Committee regrets that, despite the length of time that has passed since the complaint was first presented, the Government has not responded to the complainant organization’s allegations even though it has been invited on several occasions to send its comments and observations on the case and has received an urgent appeal to do so.
2. 883. Under these circumstances and in accordance with the applicable procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a substantive report on the case without being able to take into account the information it has sought from the Government.
3. 884. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for examining allegations of violations of freedom of association is to ensure respect for trade union rights in law and in practice. The Committee is convinced that, while this procedure protects governments against unreasonable accusations, they must recognize the importance for the protection of their own good name of formulating for objective examination detailed replies concerning the allegations brought against them (see First Report of the Committee, para. 31).
4. 885. The Committee observes that in its initial allegation, the complainant organization voices its opposition to article 497 of the Labour Code, which allows non-unionized workers to choose the collective agreement or arbitration ruling they wish to have applied to them whenever the company concerned has concluded one or more collective agreements or arbitration rulings. In the complainant organization’s opinion, this provision discourages union membership and opens the door to employers exerting pressure on workers to choose the agreement that the employer prefers.
5. 886. The Committee observes that article 497 of the Labour Code reads as follows:
6. 1. Where one or more collective agreements or arbitration rulings are applicable within an enterprise, any worker who is not affiliated to any trade union organization may choose the instrument which shall apply in his or her case.
7. 2. The application of the agreement as provided for in paragraph 1 shall be effective until its expiry, without prejudice to the provision contained in the following paragraph.
8. 3. In the case of a collective agreement with no specified expiry date, workers shall be covered by the agreement for a minimum of one year.
9. 4. A worker may revoke his or her choice, in which case the provision of paragraph 4 of the preceding article shall apply.
10. Paragraph 4 of article 496 reads:
11. 4. In the event that the worker, the employer or an association to which either of them belongs ceases to be affiliated to the body that concluded the collective agreement, the said agreement shall continue to be applicable until its scheduled expiry date or, if no expiry date is scheduled, for a period of one year, or at all events until the collective agreement revising it enters into force.
12. 887. The Committee recalls that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 950]. In the first instance national systems tend to provide that the collective agreement concluded by the most representative trade union applies to all the workers, whether or not they are members; in the second instance, each agreement normally applies to the members of each organization that signed the agreement concerned. The Committee also recalls that some systems provide for all the trade unions to negotiate a single agreement with the company or bargaining unit concerned. In the case of Portugal the legislation grants non-unionized workers the right to choose the collective agreement they desire when one or more have been concluded within the company. The complainant organization considers that this discourages union membership and can give rise to interference by the employers so that non-unionized workers choose the collective agreement that the employer wants, for example so as to weaken a given trade union.
13. 888. In this respect, the Committee considers that non-unionized workers are in a better position to determine which union has best succeeded in defending the interests of the occupational category to which they belong by means of the collective agreement it has concluded with the company, and that their right to choose does not undermine the principle of promoting free and voluntary collective bargaining laid down in Article 4 of Convention No. 98, as it is not restricted by the existence of more than one collective agreement within an enterprise.
14. 889. As the complainant organization observes, the employer is in a position to try to influence or pressure the non-unionized workers to sign up to one collective agreement rather than another. Nevertheless, the Committee notes that Article 2 of Convention No. 98 stipulates that there must be adequate protection against acts of interference by the employer and that Portugal’s legislation does contain provisions to this effect, notably article 55 of the Constitution which expressly guarantees the independence of trade union associations vis-à-vis the employers and the State and provides for appropriate channels for appealing against any infringement of this right. The Committee observes further that the Committee of Experts on the Application of Conventions and Recommendations has not criticized Portugal’s legislation in this respect. That being so, the Committee will not pursue any further its examination of the allegation concerning article 497 of the Labour Code.
15. 890. The Committee observes that the complainant organization also alleges that the employer, CTT Correios de Portugal, SA, has engaged in practices that are contrary to the principle of collective bargaining and designed to weaken the SNTCT by negotiating a collective agreement with minority unions and excluding the SNTCT (which represents 65 per cent of the workforce) and by inviting or pressuring its members to opt for the agreement concluded in 2008 with minority trade unions. The 2008 agreement curtails the benefits covered by the 2006 agreement, which was concluded by all the trade unions, inasmuch as it declares the latter to have expired, drastically reduces full-time leave for carrying out trade union activities and effectively restricts other rights, such as the right to hold union meetings which has allegedly given rise to disciplinary measures. The Ministry of Labour has backed the company’s position and, moreover, has failed to respond to the SNTCT’s request for compulsory arbitration to resolve the dispute, which has gone on for far too long and has shown the efforts made so far to have been fruitless.
16. 891. The Committee observes that behind the complaint lie questions of interpretation and appreciation which it understands have been submitted to the judicial authorities, notably the question of whether the 2008 collective agreement as a whole is less advantageous than the 2006 agreement and whether the latter, which covers the company’s entire workforce, is still applicable despite the fact that a subsequent agreement was concluded in 2008 with minority trade unions. Given the situation, the Committee urges the Government to send its observations without delay on the alleged infringement of the right to bargain collectively and the adoption by CTT Correios de Portugal, SA and the authorities of anti-union practices that are prejudicial to the SNTCT, and also to send it the administrative and judicial rulings handed down (including those handed down by the Criminal Investigation and Action Department), together with information on any developments in the dispute since the complaint was presented in July 2009, so that the Committee can reach an opinion on the allegations in full possession of the facts.

The Committee's recommendations

1. 892. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that the Government has not sent its observations on the complaint despite the fact that the Committee has had to adjourn its examination of the case on several occasions and despite the urgent appeal it addressed to the Government at its meeting in June 2009.
   • (b) The Committee urges the Government to send its observations without delay on the alleged infringement of the right to bargain collectively and the adoption by the CTT Correios de Portugal, S.A, and the authorities of anti-union practices that are prejudicial to the SNTCT, and also to send it the administrative and judicial rulings handed down (including those handed down by the Criminal Investigation and Action Department), together with information on any developments in the dispute since the complaint was presented in July 2009, so that the Committee can reach and opinion on the allegations in full possession of the facts.