Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Portugal (Ratification: 1964)

The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and of the General Confederation of Portuguese Workers – National Trade Unions (CGTP–IN), received on 10 August 2018 and on 4 September 2018, respectively, referring to the issues examined by the Committee below.

Article 4 of the Convention. Promotion of collective bargaining. Extension of collective agreements. In its previous comment, the Committee had observed that the model for the extension of collective agreements resulting from the Council of Ministers Decision No. 90/2012 of 31 October 2012 was questioned by both workers’ and employer’s organizations. The Committee had therefore invited the Government to conduct a tripartite dialogue on the rules applicable to the extension of collective agreements with a view to finding shared solutions. The Committee notes with interest the Government’s indication that under the Medium-Term Tripartite Agreement, concluded on 17 January 2017, between the Government and most social partners sitting on the Standing Committee on Social Dialogue (CPCS) of the Economic and Social Council (CES), changes were made to the regime for issuance of extension ordinances, through Council of Ministers Decision No. 82/2017 of 9 June, revoking the earlier Council of Ministers Decision No. 90/2012 and introducing clear provisions on reasonable legal deadline for their publication. The Government states that now rather than imposing conditional criteria on issuance, the policy decision-maker must have access to data in order to weigh the social and economic circumstances that warrant such issuance, namely the economic and social identity and similarity of situations as to the scope of the extension and of the instruments in question, on which the decision must be based. The Committee notes the Government’s indication that in accordance with this amendment, issuance of extensions must be preceded by an analysis of the: (i) impact on the payroll of the workers covered and to be covered, with a view to assessing the likely economic impacts of the extension; (ii) pay rise of the workers to be covered; (iii) impact on the wage scale and the narrowing of inequalities within the scope of the collective regulation to be extended; (iv) percentage of workers to be covered (in total and by gender); and (v) proportion of women to be covered. The Committee takes due note of these elements and requests the Government to provide information on the application of the new extension regime, including on its impact on the overall coverage of collective agreements.

Conditions for the expiry of collective agreements. The Committee notes that the CGTP–IN reiterates in its observation that the legislation governing the conditions for expiry of collective agreements contravenes the principle of free and voluntary collective bargaining. The CGTP–IN affirms in particular that: (i) pursuant to sections 501 and 502 of the Labour Code, the clauses of collective agreements providing that the agreement shall not expire unless it is replaced by a new agreement will lapse three years after the end of the term of the agreement; and (ii) the application of these provisions has resulted in the expiry of more than 100 collective agreements over the past few years. The Committee notes that the CGTP–IN finally affirms that a governmental proposal which aims at overcoming certain difficulties caused by the 2012 reform of the collective bargaining system does not address the issue as it would maintain the regime of expiry of validity of collective agreements. In this respect, the Committee also notes the CIP’s statement that the expiry of validity of collective agreements does not violate Article 4 of the Convention as it aims, through an effective promotion of collective bargaining, to ensure that collective agreements are not frozen in time and that they can adapt themselves to the new socio–labour realities, the previous legal regime having on the contrary entailed total inertia and stagnation in this regard. The Committee takes note of the respective positions of the CGTP–IN and the CIP. Emphasizing that in the framework of the free and voluntary collective bargaining promoted by the Convention, the duration of the agreements, as well as the conditions for their expiry, are to be determined first and foremost by the parties concerned; and that, if the regulation of this matter is envisaged, it should, to the extent possible, reflect a tripartite agreement. The Committee encourages the Government to continue promoting social dialogue in relation to the issues outlined with a view to endeavour to come up with solutions accepted by the most representative employers’ and workers’ organizations. The Committee requests the Government to provide information on any development in this regard.

Compulsory arbitration. In its previous comment, the Committee had requested the Government to provide information on any new cases involving the application of 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, in particular to indicate the awards of compulsory arbitration under section 508 (1)(c), and also to indicate whether a judicial appeal can be made against the decision of the Labour Minister. The Committee notes the Government’s indication that during the period under review (1 June 2015 to 31 May 2018) no compulsory arbitral award was made under section 508(1)(c) and that the mentioned decisions of the Labour Ministers are appealable, pursuant to article 268(4) of the Constitution of the Portuguese Republic. The Committee requests the Government to be kept informed on any new cases involving the application of the above-mentioned sections of the Labour Code.

Representativeness of organizations. For a number of years the Committee had noted that the legislation: (i) cites by name the trade union organizations that are to form part of the CES and the CPCS, which means that some organizations that deem themselves representative are left out; and (ii) does not lay down objective criteria for determining the representativeness of employers’ and workers’ organizations; the Committee had thus requested the Government to take the necessary steps 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 CPCS, and to amend section 9 of Act No. 108/91 concerning the CES accordingly. While observing that the CIP considers the mentioned processes as appropriate, the Committee takes note of the Government’s indication that it will consult the social partners on the possibility of revisiting the “tripartite agreement for a new system of regulation of labour relations, employment policies and social protection”, signed on 25 June 2008, in order to ascertain their views on the likelihood of giving effect to the agreement reached at that time on the organizations’ representativeness, and that it is waiting for the trade union confederations and the employers’ confederations to identify basic guidelines jointly for a tripartite agreement, so that the Labour Code can be amended. The Committee hopes that the Government and the social partners will examine these matters in the near future and that the outcome of its discussions will lead to an agreement to amend the legislation along the lines that the Committee has been suggesting for years. The Committee requests the Government to provide information on any developments in this regard.