Observación (CEACR) - Adopción: 2014, Publicación: 104ª reunión CIT (2015)

Convenio sobre las horas de trabajo (industria), 1919 (núm. 1) - Portugal (Ratificación : 1928)

Articles 2 and 5 of the Convention. Exceeding normal hours of work. Calculating hours of work as an average. Compressed working week. Time banking. The Committee notes the adoption of the new Labour Code – Act No. 7/2009 of 12 February 2009, that repeals the Labour Code of 2003. It notes that sections 204 and 205 of the Labour Code of 2009, which reproduce provisions of the Labour Code of 2003, establish that normal hours of work may be defined as an average, either through collective agreement or through agreement between the employer and the worker. In the first case, daily limit may be increased up to four hours and the working week may not exceed 60 hours (or 50 hours over a period of two months). In the second case, normal hours of work may be increased by up to two hours per day provided that the length of the working week may not exceed 50 hours (flexibility schemes). Under sections 207 and 211 of the new Labour Code, averaging of hours of work must be established on the basis of a reference period, which is set in the applicable collective agreements and may not exceed 12 months, or, in the absence of such provision, on the basis of periods of up to four months. Section 206 provides for the possibility of extending, either through collective agreement or agreement between the employer and the worker, the regime of averaging hours of work to the entirety of employees in a team, section or economic unit when a certain majority is covered by collective agreement or has accepted the employer’s proposal (group flexibility). Sections 208–208B regulate the time-banking regime. Through collective agreement, normal hours of work may be increased by up to four hours per day and may not exceed the limit of 60 hours per week and 200 overtime hours per year. Annual limits may be set aside through collective agreement when the objective is to avoid the reduction in the number of workers, in which case such limit may be applied for a period of up to 12 months (section 208). Under individual agreement between the employer and the worker, normal hours of work may be increased by up to two hours per day and may not exceed the limit of 50 hours per week and 150 overtime hours per year (section 208A). Section 208B provides for the possibility of extending, through collective or individual agreement and under certain conditions, the regime of time banking to the entirety of employees in a team, section or economic unit when a certain majority of these employees is covered by collective agreement or has accepted the employer’s proposal in this sense. Finally, section 209 provides for the possibility of increasing normal hours of work by up to four hours per day (compressed working-time arrangement): (a) through collective or individual agreement to compress weekly hours of work in a maximum of four days of work; or (b) through collective agreement establishing a working-time arrangement of a maximum of three consecutive days followed by at least two days of rest. In the latter case, normal hours of work per week shall be respected, on average, over a reference period of 45 days.

The Committee notes the observations of the General Confederation of Portuguese Workers (CGTP) and the General Workers’ Union (UGT) attached to the Government’s report. The CGTP indicates that sections 204 and 205 (flexibility schemes) and 208 (time banking) of the Labour Code are in violation of Articles 2 and 5 of the Convention. The UGT indicates that the measures introduced by the new Labour Code on hours of work, especially the time-banking regime, were prompted by outside pressure as a result of a Memorandum of Understanding between the Government and the “Troika”. The Committee notes the Government’s indication in reply to the comments of the CGTP according to which, while the flexibility and time-banking schemes provide for an increase in the number of hours constituting the normal daily and/or weekly period of work, on the average none of these mechanisms change the normal working period. In fact, a worker may work more hours in one day or week and fewer hours in another day or week so that the average period of work over a predetermined period (reference period) is eight hours per day and 40 hours per week, which is less than the 48-hours maximum period envisaged in the Convention.

The Committee further notes the Government’s indication that the present legislation promoting flexibility of working-time arrangements responds to new needs regarding the organization of work and aims at increasing the productivity and competitiveness of the national economy. The Government also indicates that some of the provisions of the Convention are outdated and do not reflect the current labour environment that has moved towards a different organization of work and greater protection of the health and safety of workers.

The Committee recognizes that modern flexible working-time arrangements could call into question the relevance of certain restrictions imposed by the Convention on the maximum duration of daily and weekly working hours, but wishes to emphasize the importance of reasonable limits and protective safeguards in devising such flexible arrangements, so as to ensure that modern working-time arrangements are not prejudicial to the health of workers or to the necessary work–life balance. In this regard, the conclusions of the ILO Tripartite Meeting of Experts on Working-Time Arrangements, held in October 2011, stated that the provisions of existing ILO standards relating to, inter alia, daily and weekly hours of work, remain relevant in the twenty-first century and should be promoted in order to facilitate decent work. In this connection, the Committee recalls that the Convention allows exceptions to the maximum of eight hours a day and 48 hours a week in very limited and clearly defined circumstances, namely: (i) distribution of hours of work over the week (Article 2(b)); (ii) averaging of hours of work over a period of three weeks in case of shift work (Article 2(c)); (iii) processes required to be continuous, subject to a maximum of 56 hours a week on average (Article 4); (iv) averaging of daily hours of work in exceptional cases (Article 5); and (v) permanent exceptions (preparatory, complementary or intermittent work) and temporary exceptions (exceptional pressure of work) (Article 6). It recalls once again that Article 5 of the Convention allows hours of work to be averaged only in exceptional cases where it is recognized that the limit of eight hours per day and 48 hours per week cannot be applied, and only by collective agreement given the force of regulations. The Committee accordingly hopes that in authorizing flexible working-time arrangements, such as averaging hours of work, the compressed work-week or time banking, the Government will take the necessary measures to ensure that the implementation of such arrangements is in compliance with the provisions of the Convention.