Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

Protection of Wages Convention, 1949 (No. 95) - Portugal (Ratification: 1983)

1.  The Committee notes the full information provided by the Government in its report in reply to the Committee’s previous comments.

With reference to its previous observations concerning the arrears and non-payment of wages to workers in certain enterprises, the Committee notes the detailed information provided in the 1998 report on labour inspection. The Committee notes the positive trend respecting wage arrears in the country, taking into account developments between 1986 and 1998, and hopes that the Government will continue providing information in the future.

In its previous observations, the Committee had noted that the concept of "basic pay" used by Act No. 17/86 is a more limited concept than that set out in Article 1 of the Convention. In this respect, the Committee requested the Government to provide information on the measures which guarantee the payment of components of remuneration other than basic pay. The Government indicates that the general protective measures envisaged in Act No. 17/86 relate to all the components of remuneration, and that this term is broader than the expression "basic pay". It also refers to section 82 respecting the legal status of individual employment contracts, annexed to Legislative Decree No. 49408 of 24 November 1969, which provides that "remuneration includes basic pay and any other regular or periodic benefit paid directly or indirectly in cash or in kind", with the clarification in subsection 3 that "without proof to the contrary, remuneration shall be considered to be any benefit provided by the employer to the worker". The Committee also notes that the protection set out in Act No. 17/86 covers benefits by way of compensation, such as paid holiday and other benefits, but that maternity leave is not included as it is not an obligation borne by the employer.

2.  The Committee notes the observations made by the General Confederation of Portuguese Workers (CGTP-IN).

In the first place, the CGTP-IN regrets the existence of temporary work enterprises which charge workers for finding them a job, which is contrary to Article 9 of the Convention. In its reply to the observations made by the CGTP‑IN, the Government does not refer to this issue and the Committee therefore requests the Government to provide information on the measures taken to prohibit any deduction from wages with a view to ensuring a direct or indirect payment for the purpose of obtaining employment made by a worker to an employer, as provided in this Article of the Convention.

The CGTP-IN also states that the Government should intensify its inspection activities in relation to compliance with labour legislation, which would reduce abuses involving failure to comply with the provisions of the Convention. In its reply, the Government indicates that it has invested in the recruitment of new labour inspectors over the past four years (the employment of some 100 inspectors), which would give grounds for assuming that there is an improvement in the quality and quantity of inspection activities. The Committee notes this information and requests the Government to continue providing information on this matter.

The CGTP-IN’s second observation relates to cases of abuse concerning the payment of wages in kind to certain categories of workers with the principal objective on the part of the enterprises concerned of evading their social obligations and, in particular, the payment in full of taxation and social security contributions. The CGTP-IN states that, in order to resolve this situation, the Government should adopt appropriate rules respecting taxation and social security and control such practices more closely. In its reply, the Government states that the Act approving the general budget of the State for 2000 included fiscal measures intended to promote more appropriate practices in enterprises. Furthermore, at the level of the public administration, concerted action has been taken involving the tax authorities, social security and the labour inspectorate to improve inspections, which it is planned to intensify in future. The Committee recalls that Article 4 provides for the possibility of the partial payment of wages, but not their total payment, in the form of allowances in kind in certain industries or occupations, and it requests the Government to continue providing information on the measures taken and the efforts made to achieve greater control over such payments.

The CGTP-IN’s third observation relates to arrears in the payment of wages. The CGTP-IN admits the improvement in the situation as a result of economic growth in recent years. Nevertheless, the CGTP-IN adds that official data are far from reflecting the real situation, since they are based on data obtained following labour inspections, which cannot be considered to constitute statistics on this matter. The Government replies that, as recognized by the CGTP-IN, there has been a positive trend in the reduction of arrears in the payment of wages. It also refers to the credit guarantee mechanism established by Act No. 219/99, of 15 June 1999, respecting the Wage Guarantee Fund, to which workers can have recourse when they are the victims of wage arrears. The Government adds that the protection of wages is a priority for the General Labour Inspectorate, which had developed methods of intervention in cooperation with the social partners. The Committee notes these explanations and requests the Government to continue providing information in its next report.