Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Portugal (Ratification: 1964)

The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and of the General Workers’ Union (UGT), transmitted with the Government’s report and referring to matters under examination by the Committee.

The Committee further notes that in its observations on the application of Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the UGT alleges acts of anti-union discrimination, harassment and intimidation in the industry and service sectors. The Committee requests the Government to provide its comments thereon.

Article 4 of the Convention. Promotion of collective bargaining. Extension of collective agreements. In its previous comments, the Committee requested the Government to provide information on the application of the new regime for the extension of collective agreements, which was established under the Medium-Term Tripartite Agreement of 2017. The Committee notes that the Government reports that the number of extension ordinances issued significantly increased in the years following the publication of Decision No. 82/2017, decreased in 2020 due to the low number of collective agreements concluded in the context of the COVID-19 pandemic, and slightly increased again in 2021. It notes the Government’s indication that although Portugal’s trade union membership rate is about 16 per cent, the coverage rate of the collective agreements in force is close to 80 per cent as a result of the issuance of extension ordinances. In this regard, the Committee notes that the statistical data provided by the Government show a slight decrease in the coverage rate of collective agreements in recent years, as it went from 78.3 per cent in 2017 to 76.6 per cent in 2020. The Committee requests the Government to continue providing information on the application of the new extension regime, as well as updated statistical data on the overall coverage of collective agreements in the country.

Conditions for the expiry of collective agreements. The Committee had previously noted the observations of the General Confederation of Portuguese Workers – National Trade Unions (CGTP-IN) alleging that sections 501 and 502 of the Labour Code, which provide that clauses preventing the expiry of a collective agreement unless it is replaced shall lapse three years after the end of the agreement, contravene the principle of free and voluntary collective bargaining. It also noted the opposite view expressed by the CIP and encouraged the Government to continue promoting social dialogue to endeavour to come up with solutions accepted by the most representative social partners. The Committee notes the Government’s indication that the Agreement on Combating Job Insecurity, Reducing Labour Market Segmentation and Promoting More Active Collective Bargaining, which was signed at a meeting of the Standing Committee on Social Dialogue (CPCS) of the Economic and Social Council (CES) on 18 June 2018, included requirements aimed at preventing gaps arising from the expiry of collective agreements, and that sections 500 to 502 of the Labour Code were amended accordingly on 4 September 2019 (Act N0 93/2019). The Committee observes that although certain changes were made to sections 501 and 502, the provision that was denounced by the CGTP-IN and described above remains in force. The Committee also notes that the CIP, in its observations, alleges that Act No. 11/2021 of 9 March 2021 provides for the extension of the time periods for the after-effect of collective bargaining agreements for a period of 24 months (until 10 March 2023). The Committee notes that according to the CIP, the Act encourages inaction and stagnation, and constitutes a barrier to the adoption of new collective agreements. The Committee requests the Government to provide its comments in this regard.Encouraged by the fact that the issue of the after-effect of collective agreements has given rise to active tripartite dialogue leading to the adoption of Act No. 93/2019, the Committee requests the Government to continue this tripartite dialogue with regard to the matters raised by the CGTP-IN and the CIP within the framework of the CPCS.

Compulsory arbitration. In its previous comments, the Committee requested the Government to inform on any new cases involving the application sections 508(1)(c) and 509 of the Labour Code, which allow the Labour Minister to take a reasoned decision to have recourse to compulsory arbitration. It notes that the Government reports that no decision to have recourse to compulsory arbitral under section 508(1)(c) was made during the reporting period. The Committee requests the Government to continue to provide information on any new case involving the application of the above-mentioned provisions.

Representativeness of organizations. The Committee had previously requested the Government to determine and lay down objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations forming part of the CES and the CPCS, and to amend section 9 of Act No. 108/91, which designates by name the trade union organizations that are to form part of the CES. It had noted the Government’s indication that it would consult with the social partners on these matters with a view to identifying basic guidelines jointly for a tripartite agreement. The Committee notes with regret that the Government does not provide any new information in this regard. The Committee once again requests the Government to take the necessary measures, in consultation with the social partners, to establish objective, precise and predetermined criteria to evaluate the representativeness and independence of employers’ and workers’ organizations forming part of the CES and the CPCS, and to amend the legislation accordingly. The Committee requests the Government to provide information on any progress achieved in this regard.