Caso individual (CAS) - Discusión: 2014, Publicación: 103ª reunión CIT (2014)

Convenio sobre la política del empleo, 1964 (núm. 122) - Portugal (Ratificación : 1981)



A Government representative stated that his Government had adopted active policies to reform the labour market as part of the Economic and Financial Adjustment Programme established to revive sustainable employment and consequently reduce unemployment, where a positive trend had been emerging since the end of the first quarter until the fourth quarter of 2013. According to the data provided by the National Statistics Office, the employment rate in the first quarter of 2013 was 48.8 per cent. In 2013, a total of 114,000 jobs had been created. In the first quarter of 2014, the employment rate was 49.8 per cent and 72,300 jobs had been created. The rate of full-time employment had increased in comparison with that of part-time employment, and the number of contracts of indefinite duration had risen by 3.5 per cent in comparison with the first quarter of 2013. There was also a clear downward trend in unemployment, which had continued for four consecutive quarters. The unemployment rate, which had stood at 17.5 per cent in the first quarter of 2013, had fallen to 15.1 per cent in the first quarter of 2014, which meant a 138,700 drop in the jobless total in one year. According to EUROSTAT data, that trend was holding in 2014. In April 2014, with the unemployment rate standing at 14.6 per cent, Portugal was recording the largest drop in unemployment in the European Union. The youth unemployment rate had fallen by 4.2 percentage points since the first quarter of 2013 and in April 2014 it had stood at 36.3 per cent, which corresponded to a reduction of 16,000 in the number of unemployed young persons in one year. The Government’s action in the sphere of employment policy followed the specific guidelines and measures contained in the agreement entitled “Commitment to growth, competitiveness and employment”, concluded between the Government and the social partners in January 2012. The “Programme for the relaunching of the public employment service” was an example of the measures adopted under the agreement and provided for a comprehensive rationalization of active employment measures in collaboration with the social partners to give better support to unemployed persons and active workers. The public employment service was tripartite and played a key role in combating unemployment and in job creation, employment promotion and vocational training. Regarding the measures adopted in the public sector, the Government referred to the establishment in March 2012 of an integrated, cross-cutting strategy with the prime goal of ensuring that the adjustment was more efficient and effective in the public service, and the application of the “Programme for the relaunching of the public employment service” by means of the “adjustment intervention model”, which sought to improve the categorization of unemployed persons by taking account of their needs in order to facilitate their return to the job market. Those changes allowed the employment service to attract a greater number of job offers and an improvement in the capacity of the public employment service to place people in jobs. By comparison with 2012, there had been a 49 per cent rise in job vacancies and an increase of 43.5 per cent in job placements in 2013. Between January and April 2014, employment rose above 52.4 per cent and job placements increased by 49.4 per cent. The Government also referred to the measures taken to increase training for the unemployed with a view to avoiding long-term unemployment, which applied to 235,000 unemployed persons in 2013 and to 101,000 persons in January–April 2014.

Regarding youth unemployment, specific programmes adopted since 2012 had benefited 100,000 young persons via internships, recruitment support, enterprise development and vocational training. A total of 35 per cent of young people who had undertaken training and 70 per cent of those who had embarked on internships subsequently managed to find jobs. The “National youth guarantee implementation plan” was currently under way. Measures to improve the business climate included financial support for self-employment and enterprise creation for the unemployed through enterprise creation support measures and the National Micro-Credit Programme, which had resulted in the creation of 1,090 jobs and the advance payment of unemployment benefits to finance self-employment, which had catered to 2,643 persons. In 2013, the number of new enterprises had increased by 15 per cent and the number of enterprises that had gone into liquidation had fallen by 30 per cent in comparison with 2012. The Government representative added that training needs at national, regional, local and sectoral levels were taken into account in planning the provision of training, following the analysis of training needs with the participation of the social partners.

The Employer members said that this was a difficult case in a number of respects. It was difficult for the Government, as it was required to respond to an economic and financial crisis in a manner that both stabilized its finances and raised productivity. For the social partners the challenge lay in their role in employment creation policies as well as the role of small and medium-sized enterprises. The case was also difficult for the Committee of Experts as this body was composed of lawyers who lacked the specific expertise of a labour economist or public policy expert. Therefore, the Committee of Experts rightly limited itself to asking questions and raising issues rather than providing dogmatic positions. As to the measures taken, the Government had not acted in a unilateral manner, as the majority of the social partners had agreed on the modifications introduced to the Labour Code as well as on a number of economic and employment adjustment programmes on the grounds of dialogue carried out at the national and regional levels. Although there had been some progress, it remained a case of concern due to the high level of unemployment. However, there existed a number of different policy paths available to meet the obligations of the Convention, which consisted in the proper functioning of the labour market with both high levels of employment and good quality occupations. In this regard, the 2013 Declaration of Oslo entitled “Restoring confidence in jobs and growth” correctly reflected the spirit of the Convention when it called for the need to establish policy coherence between social and economic measures in order to overcome the negative economic, social and political effects of the crisis. With regard to employment and the obligations under the Convention, the concerns of the Employer members were with regard to the creation of jobs that covered the basic rights and standards, and not to an assessment of whether these jobs provided the best employment conditions, skills or career opportunities. A country coming out of an economic and financial crisis had to focus on the creation of sustainable jobs in a strengthened labour market. The requirement of an active employment policy, set forth under the Convention, was not tantamount to a policy that was created, conducted or financed by the State. There was no magic formula regarding active labour market policies and several elements could play a role in this respect, such as the promotion of self-employment and the financial stability of the markets. Turning to the issue of youth employment, they considered that some Government measures designed to create youth employment through public spending in training could result in discontent and loss of confidence in the training and skills system if it did not lead to real jobs. There was a need for a viable economic base suited to the creation of employment. In this respect, the creation of sustainable employment depended on the existence of enterprises that were subject to a policy that created a favourable environment for entrepreneurship. Turning to the creation of jobs in small and medium-sized enterprises raised by the Committee of Experts, these enterprises had the potential to increase the labour market capacity and policies to support such enterprises would act as a supplement to labour market policies in meeting the goals of the Convention.

The Worker members stressed that this case raised the issue of the compatibility of austerity measures with ILO standards. In this respect, reference should be made to Article 1 of the Convention, which was inspired by the basic values of the ILO, and to the Declaration of Philadelphia. The purpose of the Convention was not to grant individual or collective rights to workers, but to serve as a pragmatic instrument, recalling that the ultimate aim of the economy was to serve the cause of all human beings and not to enrich only a few. Contrary to what had been said, the issue was not about economic and social policy but, remaining within the legal context, about examining whether the policies being conducted complied with the principles of the Convention, which did not prevent the adjustment of social policy to meet economic needs. These principles allowed for an examination of the extent to which certain elements of social policy might be justified by these economic needs, especially in the event of cuts in pre-existing levels of protection, but also allowed for a discussion on their proportionality or the existence of alternatives. These were legal criteria, to which national and international jurisdictions had recourse on the basis of the principle of “non-regression” established by international and constitutional social standards. The current situation in Portugal raised the question as to whether the policy of cutting labour costs and labour rights was, in the end, favourable to employment. It was not evident that the Worker members’ position on this matter could serve as a basis for consensus for the drafting of conclusions. In addressing the highly complex issues under consideration, which are fully documented by the excellent report of the ILO’s interdepartmental team on the crisis in the European States, it might be worth searching for a compromise and the conclusions should refer to the Oslo Declaration of 2013 and to the mandate it gave to the ILO.

A Worker member of Portugal recalled that Article 1 of the Convention was in direct conflict with the policies leading to recession imposed by the Troïka and by the Government of Portugal, which had led to the deterioration of the quality of employment, the devaluation of trades and careers, widespread job insecurity, unemployment (particularly in manufacturing), a succession of wage cuts and the reform of pensions. The official unemployment rate had reached 15.1–24 per cent if one included the underemployed, two-thirds of whom received no benefits whatsoever. Between 2011 and 2013 some 300,000 people emigrated, most of them young professionals. The determination to cut the budget deficit at all costs meant a decline in public investment and in the resources allocated to public services, health, social security and public education. The labour legislation had been amended to facilitate dismissals and make them less costly, to reduce the payment of overtime and to extend the length of fixed-term contracts. Social dialogue and collective bargaining were at a complete standstill and the Government had presented new proposals that undermined collective bargaining and encouraged further wage cuts. Labour was therefore devalued and underpaid and workers’ rights and freedom were at issue; two-thirds of job vacancies were for precarious jobs paying 580 euros a month. Meanwhile, tens of thousands of unemployed people were being recruited on integration contracts in the public administration where they were entitled only to unemployment benefits, which undermined decent work in the public service where wage cuts could be as much as 20 per cent. The minimum wage was still 485 euros and should be immediately reviewed. The austerity measures that had been taken should be vigorously condemned by international institutions, and the ILO should devise measures to promote employment-generating policies in a spirit of social justice.

Another Worker member of Portugal observed that her country was going through one of the most difficult periods of its history, particularly from the perspective of employment promotion. The sole concern of Government policy was to reduce budget costs, and that had a devastating effect on the economy and the labour market. Austerity policies only made the situation worse in a country that was currently facing low economic growth, limited economic flexibility, rising unemployment and low wages. In 2012, most of the Government’s social partners had agreed to sign a tripartite agreement that gave priority to employment growth, which included proactive education and vocational training policies. However, the Government had never implemented the agreement in a balanced way and had resorted instead to implementing labour reform. The policies pursued under the guise of consolidating the budget showed clearly that its new objective was to modify the labour market and to cut labour costs. The results were well known: rising unemployment, particularly among young people; an increase in long-term unemployment; a drop in employment rates; a reduction in active employment policies; and a decline in productivity. It was unacceptable that the Government should give priority to balancing the budget rather than to active employment policies in favour of the workers, and especially young people.

The Employer member of Portugal recalled the difficult situation that Portugal was facing, and stated that the Government and social partners had acted together to find responsible solutions during this period. The conclusion of the Tripartite Agreement for Competitiveness and Employment and the Commitment to Growth, Competitiveness and Employment was evidence of the social dialogue that had taken place. The Memorandum of Understanding, signed with the Troika had had a recessive effect, resulting in the closure of more enterprises, and there had not been any improvement in the labour market since this financial assistance had been launched. The Memorandum of Understanding had not considered some important factors in the country’s economy, and had contributed to further unemployment. Nonetheless, reforms took a long time to produce results, and the start of the recovery could now be observed. The revision of the Labour Code had been an attempt to adapt to the current financial circumstances of the country. The measures were innovative and had been approved by the four most representative employers’ organizations and one of the two most representative trade union confederations. Such changes would have an effect on new labour contracts in the future, which could lead to more jobs. It was not true to say that those measures had contributed to unemployment. In his opinion, the accusation was unfair that the reform had facilitated the termination of employment and had introduced flexibility in working time, and failed to take into account the important innovations introduced, which had been accepted by four employers’ federations and the General Workers’ Union (UGT). The other trade union federations had rejected the measures, even though they had participated in all the meetings. He recalled that enterprises were essential in the recovery as enterprises provided employment. While various measures had been taken, at a cost of more than 2 billion euros, it was not yet possible to calculate the impact of those measures. Moreover, such measures needed to be improved to be more friendly to both businesses and workers. Nonetheless, Portugal was on the right path towards respecting its obligations under the Convention.

The Worker member of Spain stated that the facts on the ground, the economic figures and the general situation in Portugal confirmed that the country was worse off in terms of poverty and inequity. The plight of young people was particularly alarming, and because of the lack of employment opportunities their prospects were bleak. Youth unemployment had risen dramatically in recent years and wages, where there were jobs to be had, barely covered basic needs. In 2012, the poverty rate had reached 24.7 per cent, which meant that almost a quarter of the population was living on less than 434 euros a month. Youth unemployment (workers under 25 years of age) had risen from 28 to 37.5 per cent. Young people were the largest group among the long-term unemployed and, as a result, were also the largest group to emigrate. More than 300,000 Portuguese workers had left the country between 2011 and 2013, even though most of them were highly skilled. This was bound to have disastrous consequences for the birth rate and for the sustainability of the social security system. Most of the unemployed, especially among younger workers, had no social protection; coverage for unemployed workers under 25 was only 7 per cent and for those between 25 and 34, where the employment rate was lowest, only 33 per cent. High unemployment and workers’ fear of losing their jobs encouraged exploitation and low wages. Priority should be given to employment creation, and austerity policies should be abandoned in the interest of young workers. The measures that were largely responsible for the difficult social and economic conditions of young Portuguese candidates for emigration needed to be corrected. It was vitally important that wages and pensions be improved, that social justice be promoted, that priority be given to the domestic market, that the minimum wage be increased and that workers’ rights be protected.

The Worker member of Brazil, speaking also on behalf of the Worker members of Argentina, Uruguay and Venezuela, recalled the founding principles of the ILO and referred to the fourth paragraph of the preamble of the Convention. Legal bodies, such as the Committee, did not have the political legitimacy to determine which economic and social policies were best in times of difficulties. However, the Committee had the obligation to analyse the implementation of standards, and that included the determination of whether or not a certain policy was in conformity with those standards. In that regard, the Government of Portugal was implementing an economic and social policy that was not in conformity with the Convention. With reference to Article 1 of the Convention, it was evident from the report of the Committee of Experts that there was a continuous growth in unemployment in the country, while social protection continued to fall. The austerity policies implemented in Portugal had not generated employment, had not contributed to the free choice of employment and had not contributed to the economic growth and development of the country. While the policy decision was the responsibility of the Government of Portugal, it was the responsibility of the Committee to examine its conformity with the Convention. In closing, the speaker referred to the success of his own country in combating the crisis by raising salaries and distributing income.

The Government member of France, speaking also on behalf of the Government members of Cyprus, Germany, Greece, Italy and Spain, indicated that all those Governments were actively engaged in a coordinated campaign to reduce unemployment, especially among young people. Portugal too was fully committed to the campaign and the Governments she spoke for wished to express their solidarity with the Government of Portugal in its efforts to overcome the crisis in particularly difficult circumstances. It was important to reaffirm the aforementioned Governments’ commitment to social dialogue, without which no long-term solution was possible, as well as to active policies aimed at productive and freely chosen full employment. The Portuguese Government was striving in that direction and would continue to do so. She concluded by recalling that the ILO played a major role in the multilateral system, that of promoting its international labour standards by means of increased collaboration with other multilateral organizations, especially the system’s economic and financial institutions.

The Worker member of France, speaking also on behalf of the Worker member of Italy, stated that the social indicators in the country were worrying in a context of increasing debt and the erosion of the public services, social transfers and collective bargaining, which would result in an increase of inequalities and a drop in wages in real terms. The Government’s cost-saving measures were seriously undermining the viability of the social security system and generating inequalities that threatened public safety, social stability and social, economic and environmental balances, thereby entrenching a whole generation in poverty and extreme precarity. The Programme of Economic and Financial Assistance, adopted in May 2011, had brought about a drop in the number of jobs in real terms, high unemployment rates, forced emigration, a drop in fertility rates and the impoverishment of the country. Meanwhile, the Constitutional Court had ruled on eight occasions, most recently in May 2014, that the unprecedented measures adopted were unconstitutional, as they excluded any stimulus policy involving demand, job creation, public services or systems of solidarity and well-being for the population, in line with ILO standards, as advocated by the 2012 Oslo Declaration, which stated that structural reforms and competitiveness should not be in competition with stimulus measures and investment in the real economy.

The Government member of Angola was confident that the Government would manage to implement its active employment policies in the exceptional context of economic readjustment that currently prevailed. It had launched a programme for enterprises and independent employment under which young people were to benefit from job creation support. The Government had demonstrated its determination by resolving the issues surrounding employment promotion and the competitiveness of enterprises, and it was doing all it could to bring about an environment that was conducive to applying the Convention.

The Worker member of the United Kingdom recalled the requirements concerning an active employment policy set forth in the Convention. Compliance involved the Government’s consideration of economic, social and education policies. In the context of the European crises, the Organisation for Economic Co-operation and Development placed particular importance on education and training measures which could help displaced workers find new job opportunities and could thus support the restructuring process. Turning to the situation in Portugal, in spite of some improvements, state social support had been reduced and scholarships had been abolished, so that fewer students were able to continue their studies. The growing unemployment rate of young people and workers aged between 35 and 45 had led to a growing skills gap, an increase in precarious work and short-term contracts. There was hence a need for concerted programmes to provide vocational and skills training so that jobseekers could attain lifelong learning skills. This was even more important due to the reduction of entitlements to compensation for dismissal. Moreover, higher qualified workers also had difficulty finding jobs in keeping with their qualifications and 20 per cent of workers had already left the country to seek employment opportunities abroad. Coming to the labour policy conducted by the Government since 2011 on the basis of the Memorandum of Understanding concluded with the Troika, she observed that the most significant change had been the new Labour Code, which however did not improve the situation. Other initiatives such as the “Personal Employment Plan” and encouragement from self-employment and entrepreneurship had also not changed the situation. In conclusion, she considered that the Government needed to coordinate measures to promote employment, which included in particular education of good quality and training measures.

The Government representative reiterated that his Government was implementing active measures to promote employment within the framework of Convention No. 122 and other ratified international agreements. It was also fulfilling its commitments as a member of the European Community and the Eurozone, within the framework of a stringent economic and financial adjustment programme signed with the Troika. The revisions of the Labour Code were undertaken as part of a wide process of social dialogue and agreed upon by the majority of the social partners, which had made for greater flexibility while putting a brake on job losses. Despite stringent national and international restrictions, in a context of financial, economic and social crisis, Portugal had not ceased to pursue active employment policies and had formulated a restructuring of the public employment service, both at the organizational level and with respect to its technical interventions. This had produced encouraging results, for example, there had been an increase in the number of persons covered by active employment measures in 2013, accounting for a 22 per cent increase over 2012, broken down as follows: employment measures were 40 per cent higher; vocational training measures were 17.3 per cent higher; and assistance for persons with disabilities had increased by 29 per cent over the same period. Portugal remained committed to its measures to promote full employment, within the extent of its possibilities and the abovementioned restrictions. It would have to adjust to using innovative instruments to boost the labour market and stimulate the economy, and it had already witnessed a gradual decline in unemployment since 2013. As pointed out by both the Employer and the Worker members, the Government was faced with structural problems, and only a healthy economy would enable it to create sustainable employment. Referring to the criticisms of the Worker members with respect to the increasingly precarious nature of employment, there had been a downward trend in the number of part-time labour contracts and a proportional increase in the number of open-ended contracts in the first quarter of 2014.

The Employer members indicated that when delving deeply into aspects of employment policy, differences could emerge but they could not be resolved by the Conference Committee, since the Convention and its supervision were such that there was a range of ways in which the objectives could be met according to national circumstances and practices. It was clear that the Government’s objectives in implementing the relevant measures were consistent with the Convention. The Government was undertaking its work at the domestic level with a good understanding of the value of social dialogue, and they encouraged it to have its social partners, particularly its private sector, participate in the implementation of these measures, highlighting that while the private sector had been weakened by the crisis, it had the capability to help the Government effectively achieve compliance with the Convention. They indicated that the existing channels of dialogue could be expanded to that end, especially with respect to small and medium-sized enterprises in the country.

The Worker members said that rising unemployment did not necessarily mean that a country’s employment policy had failed or that the government concerned was not applying Convention No. 122. The situation was more complicated. For example, the problems that Portugal was up against did not all derive from the measures it was obliged to take as a member of the European Union, nor even from the economic crisis. That said, one might wonder just how effective those measures were at solving the country’s problems and, more than that, whether all the social backtracking they entailed was absolutely necessary for its economic recovery. One particular segment of the population, that is, workers and people on social benefits, seemed to suffer most from those measures, while other groups of society appeared untouched. Social justice meant spreading the extra burden caused by the country’s difficulties equitably across the population as a whole, and it was that that gave an added value to tripartite consultation. It would be wrong to think that the protest vote in the recent European elections – often attributed to the extreme Right – pointed to an outright rejection of the European Union as a concept. But they did reflect a genuine concern about the Union’s unilateral economic vision and about the fact that, as things stood, the juridical force of that vision was virtually constitutional, if not supra-constitutional. According to each European country’s historical background, they possessed a more or less acute sense of the links between their own well-being, on the one hand, and peace and open borders, on the other. The ILO itself could not possibly have forgotten the fierce debate which, at the turn of the century, gave the “worker issue” and the “social issue” all their relevance. Here and now, therefore, the ILO had an important role, a positive role, to play in reminding those who held the power of decision in Europe of the debate that had held sway at the time. In Portugal’s case the ILO should contribute actively both to the Government’s efforts to define a policy founded on the fundamental values of the Organization of which it was a Member, and to its partners’ understanding of the reasons behind that policy.