Informe definitivo - Informe núm. 362, Noviembre 2011

Caso núm. 2729 (Portugal) - Fecha de presentación de la queja:: 17-JUL-09 - Cerrado

Allegations: Restrictions on the right to bargain collectively and other trade union rights in a postal and telecommunications company

1. 1386. The Committee examined this case at its November 2010 meeting and presented an interim report to the Governing Body [see 358th Report, paras 868–892, approved by the Governing Body at its 309th Session (November 2010)].
2. 1387. The Government sent its observations in a communication dated 11 March 2011.
3. 1388. 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. Previous examination of the case

1. 1389. At its meeting in November 2010, the Committee made the following recommendation with regard to the pending issues [see 358th Report, para. 892]:
2. 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, 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.
3. B. The Government’s reply
4. 1390. In its communication of 11 March 2011, the Government states that, upon the expiry of the 2006 collective agreement between the CTT-Correios de Portugal, SA, enterprise and the signatory trade unions, including the Postal and Communications Workers’ Trade Union (SNTCT), the SNTCT argued that the collective agreement was still valid and it referred the matter to the judicial authority. In this context, the 13 trade unions negotiated a new collective agreement in 2008, applicable not only to workers belonging to these unions, but also to other workers wishing to be covered who gave their written consent to that effect.
5. 1391. The SNTCT brought legal proceedings before the Labour Court of Lisbon against the enterprise in order to request the court to issue a judicial injunction to the effect that union’s members would continue to be covered by the enterprise agreement. The complaint by the CGTP is dated 17 July 2009.
6. 1392. However, three days before the CGTP filed its complaint, at the final stage of proceedings at the Labour Court of Lisbon, the SNTCT and the enterprise concluded an agreement in which:
7. (i) the parties undertook to enter into negotiations in order to reach a new enterprise agreement, which were to be concluded by 30 November 2009 at the latest;
8. (ii) in the absence of an agreement, the parties undertook to refer the matter to voluntary arbitration and they agreed on the rules to be applied in that regard;
9. (iii) the SNTCT undertook to withdraw the applications for the abovementioned judicial injunction against the enterprise; and
10. (iv) the SNTCT undertook to drop the complaint that it had filed with the Lisbon Circuit Administrative Tribunal against the Ministry of Labour and Social Solidarity, in which it called for the suspension of the publication of the notice of expiry of the enterprise agreement.
11. 1393. In the light of this agreement, the proceedings at the Labour Court of Lisbon were declared closed. Subsequently, on 16 July 2009, the SNTCT presented in the proceedings before the Lisbon Circuit Administrative Tribunal an application to cancel the request for the suspension of the publication of the notice of expiry of the 2006 enterprise agreement, and the proceedings were declared closed.
12. 1394. Subsequently, the SNTCT and the enterprise negotiated and concluded in a short amount of time a new enterprise agreement, which was published in the Boletim do Trabalho e Emprego (Labour and Employment Bulletin) No. 1, of 8 January 2010, and which may be consulted at http/bte.gep.mtss.gov.pt/completos/2010btel_2010.pdf.
13. 1395. The Government indicates that the CGTP states that the question of individuals signing up to the collective agreement led the Criminal Investigation and Action Department (DIAP) to intervene, allegedly because the behaviour of the enterprise constituted a crime. Criminal investigations are carried out independently of the Government, which is informed about them only through information provided by the jurisdictional authorities. In preparing this reply, the Government requested information from the Attorney-General's Office, of which DIAP is a part, which clarified that the CGTP’s complaint concerning alleged anti-union practices was pending a decision by the Labour Court of Lisbon on the judicial injunction filed by the SNTCT against the enterprise.
14. 1396. Of the 15 unions that concluded the 2006 enterprise agreement, only two, including the SNTCT, did not go on to sign the 2008 enterprise agreement or associate themselves with it. Furthermore, the 2008 enterprise agreement covered nearly 71 per cent of workers, including the union members who concluded the agreement and the workers who signed up to it individually.
15. 1397. Even before the first clear indications that the enterprise and the SNTCT were about to resume negotiations and normal relations, and before the union resolved certain contentious legal issues that had been raised previously, and in view of the conclusion of a new enterprise agreement, compulsory arbitration became totally unnecessary. The formal decision rejecting compulsory arbitration was adopted on 12 November 2010 and was communicated to the parties.
16. 1398. The complainant organization alleges that the 2008 enterprise agreement contains a “significant reduction of rights” and this opinion is what led the SNTCT to refuse to sign it. However, according to the Government, none of the CGTP’s critical allegations are based on the differences between the two enterprise agreements.
17. 1399. In this regard, it is true that, before the expiry of the enterprise agreement, some 50 SNTCT trade union officials and workers of the CTT-Correios de Portugal, SA, enterprise had, in accordance with the provisions of the agreement, been released from work in the enterprise for the whole year. However, after the expiry of the enterprise agreement, the enterprise started to apply the provisions of the law. In accordance with the law (section 400 of Act No. 35/2004 of 29 July, section 468 of the current version of the Labour Code), the number of SNTCT officials and workers of the enterprise entitled to take four days off per month to perform trade union duties was adjusted to ten. However, only five officials took this leave, because the union decided to allow the quota of four days per month for each of ten officials to be enjoyed by only five of them, as is permitted by law (paragraph 4 of section 400).
18. 1400. In addition, officials were entitled to take time off work to carry out trade union activities. Those who had monthly leave entitlements could take unlimited days off, while others could take up to 33 days off per year (section 402 of Act No. 35/2004 and section 468, paragraphs 1 and 5, of the current version of the Labour Code).
19. 1401. As the SNTCT represents workers in other enterprises in the communications sector, several of its officials were and are employees of other enterprises and also enjoy monthly leave entitlements and are allowed to take time off for union activity in their respective enterprises.
20. 1402. The claim by the CGTP that the leave entitlements awarded to trade union officials under Portuguese law are “derisory” is false and unacceptable.
21. 1403. Trade union activity in the enterprise, in the different workplaces, is carried out by trade union representatives (Labour Code, section 496 of the old version and section 460 of the current version), of which the SNTCT has more than 400. Some of the union representatives are also entitled to a monthly allocation of hours for the exercise of trade union duties in an amount proportional to the number of unionized workers (Labour Code, sections 500 and 504 of the previous version and sections 463 and 467 of the current version). The CGTP totally omits to make any reference to trade union representatives.
22. 1404. The Government notes that the CGTP refers to all workplaces and all the workers of the enterprise, as if industrial action in this regard was the exclusive remit of the SNTCT, and fails to mention that several other unions represent workers at the enterprise, and that their officials and representatives are also entitled to take time off for union activities.
23. 1405. The Government states that the allegation that the enterprise banned workers’ meetings (that were going to be held at the workplace, a detail that is omitted by the CGTP) convened by the SNTCT, should be considered in the light of Portuguese legislation, under which the only bodies allowed to convene workers’ meetings at the workplace are workers’ committees (that are independent of trade unions) (Labour Code, section 497 of the old version and section 419 of the current version) or union or inter-union committees comprising trade union representatives, unless there is a minimum number of workers (Labour Code, section 497 of the previous version or section 461 of the current version). Legislation does not allow trade unions to convene workers’ meetings that are to be held at the workplace. When the SNTCT convened the meetings, the enterprise informed the workers that they were illegal (annexes 11–13 of the CGTP’s complaint refer to this matter, in connection with the disciplinary measures).

C. The Committee’s conclusions

1. 1406. In its previous examination of the case, the Committee observed that, in its complaint, the complainant organization alleges that the CTT-Correios de Portugal, SA, enterprise 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 previous agreement (of 2006), 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 Committee therefore urged the Government to send its observations without delay on the alleged infringement of the right to bargain collectively and the adoption by the enterprise 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 could reach an opinion on the allegations in full possession of the facts [see 358th Report, paras 890 and 891].
2. 1407. The Committee notes that, according to the information in the complaint and in the Government’s reply, the source of the dispute between the enterprise and the SNTCT is a legal controversy, in other words it is a dispute over the interpretation of legislation and of the 2006 collective agreement with regard to whether this collective agreement continued to be applicable after the agreed expiry date, a dispute that led to the legal action by the union (which was seeking a declaration to the effect that the 2006 collective agreement continued to be applicable), which was subsequently dropped and which, in the meantime, gave rise to a collective bargaining process between the enterprise and other unions.
3. 1408. With regard to the allegation that the enterprise engaged in practices that are contrary to the principle of collective bargaining and designed to weaken the SNTCT by negotiating a collective agreement in 2008 with minority unions and excluding the SNTCT (which, according to the allegations, represents 65 per cent of the workforce) and by pressuring its members to opt for the agreement concluded in 2008, the Committee notes that, according to the Government, the enterprise denies the allegations that it exerted pressure and gives another explanation, indicating that, in accordance with the legislation, workers on secondment may only perform their functions if so provided for in the collective agreement. The Committee also notes that, according to the Government, the SNTCT reached an agreement with the enterprise in July 2009, three days before the complaint was presented to the Committee, to sign a new enterprise collective agreement, which was concluded in a short period of time and was published in January 2010. The Committee notes this information with interest. The Committee notes that, during the abovementioned negotiations, the SNTCT withdrew the request it had submitted to the judicial authority to suspend the notice of expiry of the 2006 collective agreement issued by the enterprise, which led to the closure of the proceedings in the Labour Court of Lisbon, before which the SNTCT had brought legal proceedings against the enterprise, in order to request the court to issue a judicial injunction to the effect that the union’s members would continue to be covered by the 2006 enterprise collective agreement. The Committee understands that the negotiation of the 2008 collective agreement with other unions (according to the complainant organization) took place as a result of the SNTCT being strongly in favour of the 2006 collective agreement continuing to be applicable. According to the Government, of the 15 unions that had concluded the agreement, only the SNTCT and one other union did not sign the 2008 collective agreement or associate themselves with it; the 2008 collective agreement covered nearly 71 per cent of workers, including the union members who concluded the agreement and the workers who signed up to it individually in writing.
4. 1409. With regard to the allegation that there has been a drastic reduction in full-time trade union leave and that restrictions had effectively been placed on the rights relating to union meetings set out in the 2006 collective agreement, the Committee notes that, according to the Government, the complaint is not based on the differences between the 2006 and 2008 collective agreements. According to the Government, the allegation by the complainant organization concerning union meetings should be considered in the light of legislation, which provides that workers’ meetings may be convened at the workplace only by union or inter-union committees or workers’ committees, unless there is a minimum number of workers. The Committee also notes that, in relation to the allegations concerning the enjoyment of trade union leave, the Government states that: (1) it is true that, before the expiry of the enterprise agreement, some 50 SNTCT trade union officials and workers of the enterprise had, in accordance with the provisions of the agreement, been released from work in the enterprise for the whole year; however, after the expiry of the enterprise agreement, the enterprise started to apply the provisions of the law; (2) in accordance with the law (section 400 of Act No. 35/2004 of 29 July, section 468 of the current version of the Labour Code), the number of SNTCT officials and workers of the enterprise entitled to take four days off per month to perform trade union duties was adjusted to ten; however, only five officials took this leave, because the union decided to allow the quota of four days per month for each of ten officials to be enjoyed by only five of them, as is permitted by law (paragraph 4 of section 400); (3) in addition, officials were entitled to take time off work to carry out trade union activities; those who had monthly leave entitlements could take unlimited days off, while others could take up to 33 days off per year (section 402 of Act No. 35/2004 and section 468, paragraphs 1 and 5, of the current version of the Labour Code); (4) as the SNTCT represents workers in other enterprises in the communications sector, several of its officials were and are employees of other enterprises and also enjoy monthly leave entitlements and are allowed to take time off for union activity in their respective enterprises; and (5) the SNTCT has more than 400 trade union representatives; some of these are also entitled to a monthly allocation of hours for the exercise of trade union duties in an amount proportional to the number of unionized workers (Labour Code, sections 500 and 504 of the previous version and sections 463 and 467 of the current version).
5. 1410. With regard to the Committee’s request during its previous examination of the case concerning the judicial decisions handed down, the Committee notes that, according to the information provided by the Government, the legal proceedings brought by the SNTCT before the Lisbon Labour Court and the Lisbon Circuit Administrative Tribunal were dropped further to the commencement of negotiations which led to the signing of a collective agreement between the SNTCT and the enterprise. With regard to the complaint filed by the complainant organization with the DIAP to the effect that the behaviour of the enterprise with regard to individuals signing up to the 2008 collective agreement constituted a crime, the Government states that the Office of the Attorney-General reported that the complaint was pending a decision by the Labour Court of Lisbon (according to the Government, the SNTCT had dropped its action before this court).
6. 1411. In these circumstances, given that the enterprise and the SNTCT concluded a collective agreement that puts an end to the dispute between them, the Committee considers that this case does not call for further examination.

The Committee's recommendations

1. 1412. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.