Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Portugal

Weekly Rest (Industry) Convention, 1921 (No. 14) (Ratification: 1928)
Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106) (Ratification: 1960)
Holidays with Pay Convention (Revised), 1970 (No. 132) (Ratification: 1981)
Night Work Convention, 1990 (No. 171) (Ratification: 1995)

Previous comments: C.14, C.106, C.132 and C.171

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos. 14 (weekly rest (industry)), 106 (weekly rest (commerce and office), 132 (annual holidays with pay) and 171 (night work) together.

Weekly rest

Article 5 of Convention No. 14 and Articles 7(2) and 8(3) of Convention No. 106. Compensatory rest. The Committee notes the Government’s indication in its report that compulsory weekly rest is guaranteed by section 232(1) of the Labour Code and that an additional weekly rest, whether continuous or intermittent, occurring in some or all weeks of the year, can be established through a collective labour agreement (section 232(3) of the Labour Code). The Government also informs that when employees work on a compulsory weekly rest day, they are entitled to a paid compensatory rest day, with a 50 per cent or 100 per cent increment, to be taken on one of the following three working days. The Committee notes the observation made by the General Confederation of Portuguese Workers (CGTP) which indicates that additional weekly rest days are nearly universal and included in most collective agreements. CGTP also informs that the repeal of the right to paid compensatory rest in case of overtime on additional weekly rest days, as stipulated by Law No. 23/2012, was carried out under the pretext of fulfilling obligations arising from the financial assistance granted by the International Monetary Fund, the European Central Bank and the European Commission. However, CGPT emphasizes that more than seven years have passed since this modification, and despite several amendments to the Labour Code, compensatory rest in case of overtime on additional weekly rest days has yet to be reinstated. The Committee requests the Government to provide information on measures adopted or envisaged to ensure that compensatory rest is compulsorily granted in all cases of exemptions, whether permanent or temporary, from the normal weekly rest scheme, in accordance with Conventions Nos. 14 and 106.

Annual holidays with pay

Articles 11 and 12 of the Convention No. 132. Prohibition to relinquish or forgo the right to an annual holiday with pay. The Committee notes the information provided by the Government that section 244(3) of the Labour Code, which stipulates that in cases of complete or partial impossibility to take annual leave, the worker is entitled to the corresponding remuneration for the unused leave or the option to use it until 30 April in the subsequent year, coupled with financial compensation, in circumstances where it is impossible to take annual leave during a particular calendar year due to the worker’s impediment, including cases of illness. However, the Committee wishes to emphasize that agreements to forgo holiday in exchange for compensation shall be prohibited. The Committee requests the Government to provide information on measures taken or envisaged to bring the national legislation into full conformity with the Convention on this point.

Night work

Article 4(1) of the Convention No. 171. Health assessment of workers, at their request, during their assignment. The Committee notes that, according to the information provided by the Government, section 225 of Labour Code provides for cost-free and confidential medical examination for night workers, along with a specific risk assessment, which is required to evaluate the suitability of the job for the worker, considering their physical and mental condition, both prior to commencing the activity and subsequently every six months. The Committee notes CGTP’s observation that the Labour Code still does not provide for free medical examinations to be carried out at the worker’s request when health issues arise in connection with working under this regime. Therefore, the Committee requests the Government to provide information on measures adopted or envisaged to ensure that night workers are entitled to request and undergo a health assessment free of charge when experiencing health problems linked to night working, independently from any regular medical examination otherwise scheduled by the employer.

Articles 5. First-aid facilities. The Committee notes the observation of CGTP that, although the Labour Code stipulates that the employer must organize occupational safety and health activities in such a way that night workers benefit from a level of protection appropriate to the nature of their work and that these resources are available at all times, the provision is quite general and does not by itself guarantee that night workers actually have access to suitable first-aid facilities. The Committee requests the Government to provide its comments in this respect.

Article 7(3)(a). Maternity protection. Prohibition of dismissal. The Committee notes the observation of CGTP that section 63 of the Labour Code contains a general provision for the protection of pregnant, postpartum or lactating workers in case of dismissal, but does not contain an absolute prohibition of dismissal or notice of termination of such workers engaged in night work. It also informs that this protection does not apply in cases of other forms of employment contract termination, such as the expiration of a fixed-term employment contract. The Committee requests the Government to provide its comments in this respect.

Article 9. Social services. The Committee notes that according to the CGTP, the current legislation does not address the appropriate social services for night workers, particularly regarding transportation to and from the workplace during hours when public transportation is not available, as well as issues related to meals and other support facilities. The Committee once again requests the Government to indicate any specific measures it intends to take to further improve the working conditions of night workers having regard to the special needs in terms of rest, transport, food and catering, organization of family life and recreational facilities.