Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 6) sur le travail de nuit des enfants (industrie), 1919 - Portugal (Ratification: 1932)

The Committee notes the Government’s report. It also takes note of the observations sent by the General Workers’ Union (UGT) and the General Confederation of Portuguese Workers (CGTP).

Article 2(2) of the Convention. Exceptions to the prohibition of night work by young persons. In its previous comments, the Committee had noted section 65 of Act No. 99/2003 approving the Labour Code (Labour Code of 2003) which regulates the night work of young persons. It had noted that according to section 65(3) of the Labour Code of 2003, a collective agreement may provide that a young person aged 16 or over may work at night in specific sectors of activity, except during the period between midnight and 5 a.m. Moreover, it had noted section 65(4) of the Labour Code of 2003 which stated that a young person aged 16 or over may work at night, in cultural, artistic, sporting or advertising activities, where there are objective grounds for doing so and on condition that he/she is granted a compensatory period of rest equal to the number of hours worked.

The Committee had noted the observations made by the CGTP that the national legislation authorizes the night work of young persons aged 16 and over in particular sectors of activity without specifying the sectors themselves.

The Committee once again notes the allegations made by the CGTP reiterating its previous comments that the national legislation does not expressly state the sectors of activity in which night work is authorized for young persons over 16 years of age. The CGTP further alleges that this task is being left to collective bargaining which would lead to a generalization or widespread habit in practice not permitted by the Convention. The Committee also notes the UGT’s statement that since this Convention dates from 1919 and was ratified by Portugal in 1932, it is natural that some of its provisions may have become obsolete.

The Committee notes the Government’s indication that the Labour Code of 2003 has been revised and the night work of young persons under 18 years of age is now covered by section 76 of the Legislative Decree No. 7/2009 (Labour Code of 2009) which retains the provisions previously contained in section 65 of the Labour Code of 2003. In this regard, the Committee notes that the Government continues to consider that some provisions of the Convention which might have been justified at the time of its adoption in 1919, have lost any relevance with the passage of 93 years, and does not reflect the world of work today. The Government, once again recalling the decision taken by the Governing Body, considers that the Convention should be revised as soon as possible, and that it is looking forward for that.

The Committee reminds the Government that as long as the Convention has not been revised and has not been denounced by a ratifying country as per Article 13 of the Convention, it remains in force and is binding upon those countries that have ratified the Convention. Such a country is under an obligation to comply with the provisions of the Convention. The Committee once again recalls that according to Article 2(1) of the Convention, young persons under 18 years of age shall not be employed during the night in any industrial undertaking, other than an undertaking in which only members of the same family are employed and in the cases listed in Article 2(2) of the Convention. The Committee therefore requests the Government to take the necessary measures to specify the activities in which night work may be authorized for children over 16 years of age as per section 76(3)(a) of the Labour Code of 2009, so as to be in conformity with Article 2(1) and (2) of the Convention.

Article 3(1). Employment of children in industrial undertakings. Noting that the provisions laid down under section 65 of the Labour Code of 2003 did not completely comply with the provisions of the Convention, the Committee had reminded the Government that according to Article 3(1) of the Convention, the term “night” signifies a period of at least 11 consecutive hours, including the interval between 10 p.m. and 5 a.m. It had therefore requested the Government to take the necessary measures to bring the national legislation into conformity with the Convention on this point.

The Committee notes the allegations made by the CGTP that national legislation fails to conform to Article 3(1) of the Convention in terms of the definition of “night work”.

The Committee notes that according to section 76(1) of the Labour Code of 2009, it is prohibited to employ a young person under 16 years of age between 8 p.m. and 7 a.m. It also notes section 76(2) of the Labour Code of 2009 which states that a young person aged 16 and over cannot work between 10 p.m. and 7 a.m. In this regard, the Committee notes that according to section 73(1) of the Labour Code of 2009, the working hours of a young person (between the ages of 16 and of 18 years) shall not exceed eight hours a day or 40 hours per week. The Committee, therefore, observes with satisfaction that sections 73(1) and 76(2) of the Labour Code of 2009, when read together, lead to a prohibition to work during the night as required by Article 3(1) of the Convention. The Committee further notes that by virtue of section 73(2) of the Labour Code of 2009 a collective agreement on employment may further reduce or limit the maximum working hours of young persons.

Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s information that in the course of the inspections carried out by the Working Conditions Authority during the period from June 2008 to May 2012, four infringements of the provisions governing the prohibition of night work by minors were detected and were the subject of prosecutions.