Informe provisional - Informe núm. 133, 1972

Caso núm. 654 (Portugal) - Fecha de presentación de la queja:: 18-DIC-70 - Cerrado

1. 222. This case has already been examined by the Committee on two previous occasions (58th Session, May 1971, and 60th Session, February-March 1972), on which occasions it submitted interim reports to the Governing Body, which are contained in paragraphs 66 to 92 of its 125th Report and paragraphs 147 to 168 of its 129th Report)
2. 223. At its 61st Session (May 1972) the Committee adjourned its examination of the case since the information which it had requested from the Government arrived too late to enable the Committee to examine it in detail.
3. 224. The Government communicated its replies to the request made by the Committee in a communication received by the ILO on 31 May 1972.
4. 225. Portugal has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations Relating to the Suspension from Office of Trade Union Officers
  226. 226 In its 129th Report (paragraph 156) the Committee stated that it continued to be of the opinion that the provisions of Legislative Decree No. 502/70 concerning the suspension of a trade union officer and the procedure involved, in so far as these provisions appeared to permit of the suspension from office of a trade union officer by a judge upon receipt of a request from the National Institute of Labour and Social Welfare and upon confirmation that the formality of an administrative inquiry had been fulfilled, did not provide adequate judicial control to ensure an impartial and objective procedure in the case of the trade union officers.
  227. 227 The Committee based this opinion on its interpretation of sections 3, 5, 6 and 7 of this Legislative Decree, from which it appeared that the suspension of a trade union officer could be ordered by a judicial authority following a request by a member of the trade union organisation or by the National Institute of Labour and Social Welfare and that the sole function of the judge was to issue an order of suspension on receipt of such a request after ensuring that the administrative inquiry carried out by the Inspectorate of Corporate Organisations had been fulfilled, but without being able to review the grounds upon which the suspension was based.
  228. 228 The Committee noted that the above-mentioned sections of this decree deal with such requests for suspension on the grounds that a trade union officer has seriously impaired the rights of the member, or the rights, interests or principles which the organisation must respect, further or defend. These sections also lay down the procedure involved in obtaining an order of suspension. Whereas section 2 of the same decree concerns the removal of trade union officers who do not fulfil the eligibility requirements laid down in section 15 of Legislative Decree No. 23050/1933, as amended by Legislative Decree No. 49058/1969, sections 3, 5, 6 and 7 of the decree appeared to the Committee to involve a procedure which differed from that concerning the removal of trade union leaders who did not fulfil the necessary eligibility requirements.
  229. 229 In its communication dated 31 May 1972, the Government states that the Committee would not appear, in this connection, to have given proper consideration to the structure of Legislative Decree No. 502/70, which, according to the Government, makes general provision for the procedure to be followed in the event of dismissal of officers of occupational organisations and lays down the incidental procedure to be followed in the event of their suspension. The dismissal procedure, states the Government, may be instituted on the grounds either of ineligibility (section 2), or of violation of Legislative Decree No. 23050, as amended by Legislative Decree No. 49058 (section 9). The grounds indicated in section 3 of Legislative Decree No. 502/70 (see paragraph 228 above) are valid only for cases of suspension.
  230. 230 The Government further points out that, in cases of suspension, recourse must be had to a rapid procedure, but this does not preclude judicial supervision as a guarantee of impartiality and objectivity. The judge may satisfy himself that the prescribed procedures have been followed and that the administrative authorities have not acted in a hasty and arbitrary manner but, on the contrary, have complied with the clearly defined statutory obligations, the main one being that an investigation should have been carried out by the Inspectorate of Corporate Organisations. This investigation must be recognised, or at least assumed, to have been carried out in an impartial and objective manner. The Government adds that persons who have been suspended from office are entitled to appeal.
  231. 231 The Government appends to its communication certain documents drawn up by the Supreme Administrative Court in the proceedings concerning the suspension and final removal of the trade union officers Antonio dos Santos, Jr, Carlos Augusto das Neves Alves and Luis Manuel Ferreira Faustino.
  232. 232 The Committee, having taken note of the observations of the Government concerning the provisions of Legislative Decree No. 502/70, would again refer to the terms of section 3 thereof, whereby any member of a trade union, or the National Institute of Labour and Social Welfare, having a well founded suspicion that an official, before the institution of proceedings for his removal from office or during such proceedings, has committed a serious infringement of the rights of the member or of the rights, interests or principles which the organisation was established to respect, promote and defend, may petition the labour court to suspend the said official until the end of the hearing.
  233. 233 The Committee understands that the petition for the removal of a trade union officer may be made on the grounds that he does not fulfil, or no longer fulfils, the eligibility requirements prescribed by Legislative Decree No. 49058 or that he has violated the provisions of this decree. In either case, where the preliminary suspension of an officer is requested by the National Institute of Labour and Social Welfare, an investigation is carried out by the Inspectorate of Corporate Organisations and a report submitted to the Minister which, when approved, is tendered as evidence. The procedure prescribed in sections 5, 6 and 7 of Decree No. 502/70 applies to both types of application for suspension and it would seem clear from these provisions that the judge, having ensured that the procedural requirements laid down in sections 5 and 11 have been carried out, must order suspension within 48 hours. The official so suspended on a petition by the National Institute of Labour and Social Welfare may, within 10 days of the decision, submit a counter plea, but such a plea according to section 7 (2) of the decree may be based only on a failure to observe the requirements of section 5, which provides that an investigation shall be carried out by the Inspectorate of Corporate Organisations, that a report shall be made thereon stating the eligibility requirements and any evidence of the infringement and that such report shall be submitted to the Minister.
  234. 234 The Committee observes that, while the judicial authorities may make every effort to ensure that the investigation has not been carried out by the Inspectorate of Corporate Organisations in a hasty and arbitrary manner, nevertheless the statutory obligation at the moment the application for suspension is presented requires the judge to grant the suspension order, provided the procedural requirements have been fulfilled, and, as the Government itself points out, the investigation must be recognised, or at least assumed, to have been carried out in an objective and impartial manner. Any appeal against suspension, the Committee notes, can be based only on an alleged failure to observe these procedural requirements.
  235. 235 The Committee notes that an appeal was in fact lodged by Antonio dos Santos, Jr, Carlos Augusto das Neves Alves and Luis Manuel Ferreira Faustino. From the extracts of the Supreme Administrative Tribunal which were supplied by the Government the Committee notes that stress was laid, in the rejection of this appeal, upon the fact that, following an application by the National Institute of Labour and Social Welfare under Legislative Decree No. 502/70, it is not for the judge to examine the substance of the matter, but simply to pronounce the decision which the law requires him to pronounce, having first ensured that the necessary procedural requirements have been carried out as laid down by section 5 of the said decree.
  236. 236 The Committee can only repeat that the provisions of Legislative Decree No. 502/70 concerning the suspension of a trade union officer and the procedure involved, in so far as they permit of the suspension from office of a trade union officer by a judge whose statutory obligation extends no further than ensuring that, prior to the presentation of a petition for suspension by the National Institute of Labour and Social Welfare, an administrative inquiry has been carried out by the Inspectorate of Corporate Organisations, do not provide adequate judicial control to ensure an impartial and objective procedure. The Committee considers that the decree in question offers the trade union officer concerned no opportunity during the suspension procedure to lodge a counter-plea on the substance of the petition or to contest the facts and circumstances alleged in the report of the Inspectorate of Corporate Organisations. The Committee accordingly is unable to accept the Government's contention that the judge is able to satisfy himself that the report of the Inspectorate of Corporate Organisations is entirely objective and impartial.
  237. 237 In these circumstances, the Committee recommends the Governing Body once again to draw the attention of the Government to the above considerations and to point out the desirability of reconsidering the legislation concerning the suspension from office of trade union officers, in order to safeguard the right of workers to elect their representatives in full freedom as well as the right of trade unions to organise their administration and activities.
  238. 238 The Committee notes from the documents transmitted by the Government that the persons in question were finally removed from their trade union functions by a decision of the labour court on the grounds that they did not fulfil the eligibility requirements established by law. The Committee recommends the Governing Body to request the Government to supply full and precise information concerning the facts on which this decision was reached by the court, the eligibility requirements which were not fulfilled by Antonio dos Santos, Jr, Carlos Augusto das Neves Alves and Luis Manuel Ferreira Faustino, and the procedure which was followed in reaching this decision.
• Allegations relating to Collective Bargaining
  239. 239 When it last examined the case the Committee emphasised that, as regards the requirement of ministerial approval before a collective agreement can come into force, such a requirement is not in conformity with the principles of voluntary negotiation laid down in Convention No. 98. Further, with regard to the time-limits fixed by the legislation within which employers must reply to proposals by workers and within which collective agreements must be concluded, the Committee expressed the view that it would be desirable for the Government to examine the possibility of reducing these periods in order to encourage and promote the development of voluntary negotiation.
  240. 240 The Committee recalls that Legislative Decree No. 492/70 reaffirms the principle that ministerial approval is required before a collective agreement can come into effect and establishes the grounds on which such approval may be refused (viz. the existence in an agreement of a clause which interferes with " the right reserved to the State to co-ordinate and have over-all control of the economic life of the nation " (section 3 of Legislative Decree No. 49212)). The Committee also recalls that Legislative Decree No. 49212, as amended by Legislative Decree No. 492/70, lays down a period of up to 105 days within which employers must reply to workers' claims and six months (subject to a further extension of six months) within which collective agreements must be concluded.
  241. 241 In its communication the Government states, in this connection, that it should draw the attention of the Committee to paragraph 3 of section 24 of Legislative Decree No. 49212 (as amended by Legislative Decree No. 492/70), which states that " the National Institute of Labour and Social Welfare shall make a study of agreements, applications for accession, revised texts and records of conciliation proceedings and arbitration awards and, where such texts are not wholly or partly in accordance with the law or the principles of equity, it shall refer them back to the institutions concerned ".
  242. 242 With regard to the possibility of reducing the time-limits within which employers must reply to workers' claims and within which collective agreements must be concluded, the Government states that it can only reiterate what it stated previously, namely that, to date, practice has not shown that any reduction in these periods is justified. The Government indicates that, since the promulgation of Legislative Decree No. 49212, the number of collective agreements concluded has increased, which, according to the Government, shows that practice encourages and stimulates the development of voluntary negotiation.
  243. 243 The Committee notes the information communicated by the Government with regard to the intervention of the National Institute of Labour and Social Welfare in the collective bargaining process, but it can only repeat that the requirement of ministerial approval before a collective agreement can come into force is not in conformity with the principles of voluntary collective bargaining.
  244. 244 As regards the periods within which employers are obliged to reply to workers' claims and within which collective agreements must be concluded, the Committee regrets that the Government considers that a reduction in the length of these periods is not justified. The Committee continues to be of the opinion that, notwithstanding the Government's statement that the number of collective agreements concluded has increased since the promulgation of Legislative Decree No. 49212, it would be desirable, particularly in view of the fact that workers are unable, in Portugal, to go on strike in support of their claims, to reduce the periods laid down in this decree in order to encourage and promote the further development of voluntary negotiation.
  245. 245 The Committee, accordingly, recommends the Governing Body to draw the attention of the Government to the above considerations, and to invite the Government to consider the possibility of amending its legislation in order to encourage the full utilisation of the machinery for voluntary collective bargaining.
• Allegations Relating to Freedom of Assembly
  246. 246 When the Committee examined the case in March 1972, it had before it the observations of the Government regarding the allegations that a number of trade union organisations had been refused authorisation to hold specific meetings. In particular, the complainants had alleged that the Wool Products Trade Union of Lisbon, on 30 and 31 August 1970, and again on 6 September 1970, had been prevented by the authorities from holding a meeting with its members to discuss the terms of a proposed collective agreement. It had also been alleged that, on 8 September 1970, the National Union of Commercial and Allied Employees had been prevented by the authorities from holding a meeting it had arranged to take place on 11 September. Further, according to the complainants, on 10 October 1970, the Governor of Lisbon had prohibited a general meeting called by the metalworkers of Lisbon to discuss the revision of a collective agreement. The complainants had stated that all the meetings in question had been called by the executive bodies of the unions. The authorities, however, according to the complainants, had exercised pressure on the owners of the premises in which the meetings were to be held to withdraw the contracts of lease which had been signed between them and the unions concerned.
  247. 247 The Committee noted that the Government's observations concerning these allegations, as contained in its communication dated 29 October 1971, were unspecific and, accordingly, reached the view, on the information at its disposal, that the authorities had interfered in the holding of the meetings referred to. The Committee recommended the Governing Body to draw the attention of the Government to the principle that freedom from government interference in the holding and proceedings of trade union meetings constitutes an essential element of trade union rights and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.
  248. 248 In its communication received by the ILO on 31 May 1972, the Government states that, so far as the meeting of the National Wool Products Trade Union of Lisbon is concerned, it has been unable to obtain any additional and specific information. It concludes, therefore, that the meeting in question must have been prohibited because the statutory 48 hours' notice of intention to hold the meeting was not given to the competent administrative authorities. The Government goes on to state that the meeting of the National Union of Commercial and Allied Employees in Lisbon, scheduled for 11 September 1970, was expressly authorised. In this connection, the Government attaches to its communication a copy of a letter addressed by the authorities to the President of the union in question amending a previous decision and authorising the meeting. The meeting of the National Union of Technical and Metal Workers of the Lisbon district, the Government continues, which was scheduled for 10 October 1970, was not authorised because Legislative Decree No. 22468 of 11 April 1932, which makes general provision for the right of assembly, had not been complied with. This meeting, states the Government, was due to be held outside the union's offices at the Lisbon and Benfica Sports Ground, and permission should, therefore, have been requested sufficiently early. The union in question did not comply and, in fact, states the Government, maintained that it was not obliged to do so. This prompted the Ministry of the Interior to publish a press communiqué explaining the statutory provisions on the subject for the benefit of the trade unions. The union committee, according to the Government, had also stated that it did not comply with the requirement prohibiting access to general meetings by persons not belonging to the union. This, states the Government, was manifestly illegal.
  249. 249 In this connection, the Committee would point out that, while trade unions, on the one hand, should respect legal provisions which are intended to ensure the maintenance of public order, the public authorities, on the other hand, should refrain from any interference which would restrict the right of trade unions to organise the holding and proceedings Of their meetings in full freedom.

The Committee's recommendations

1. 250. In all these circumstances and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to the suspension from office of trade union officers:
   • (i) to draw the attention of the Government to the considerations set out in paragraph 236 above, and to point out the desirability of reconsidering the legislative provisions concerning the suspension from office of trade union officers, in order to safeguard the right of workers to elect their representatives in full freedom, as well as the right of trade unions to organise their administration and activities; and
   • (ii) to request the Government to supply full and precise information concerning the facts on which the decision to remove the trade unionists in question from their trade union functions was reached by the court, the eligibility requirements which were not fulfilled by Antonio dos Santos, Jr, Carlos Augusto das Neves Alves and Luis Manuel Ferreira Faustino, and the procedure which was followed in reaching this decision;
   • (b) with regard to the allegations relating to collective bargaining: to draw the attention of the Government to the considerations set out in paragraphs 243 and 244 above, and to invite the Government to consider the possibility of amending its legislation in order to encourage the full utilisation of the machinery for voluntary collective bargaining;
   • (c) with regard to the allegations relating to freedom of assembly:
   • (i) to note the explanations supplied by the Government; and
   • (ii) to draw attention to the considerations set out in paragraph 249 above, namely that while trade unions, on the one hand, should respect legal provisions which are intended to ensure the maintenance of public order, the public authorities, on the other hand, should refrain from any interference which would restrict the right of trade unions to organise the holding and proceedings of their meetings in full freedom; and
   • (d) to take note of this interim report, it being understood that the Committee will submit a further report when it has received the information requested in accordance with subsection (a) (ii) of this paragraph.