CMNT_TITLE

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Portugal (RATIFICATION: 1977)

Other comments on C087

Observation

Direct Request

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

The Committee had previously requested the Government to provide information on the outcome of judicial proceedings concerning the arrest of two trade union leaders by the police at the end of a nationwide rally. The Committee takes due note of the Government’s indication that the court has acquitted one of the defendants who had been charged with the offence of disobeying a public meeting dispersion order, and that a case involving the second is still pending before the court. The Committee requests the Government to provide information on the outcome of that case.

The Committee further notes that, in its observations, the CGTP–IN indicates that section 497 of the Labour Code continues to allow workers who are not union members to choose applicable collective agreements. The Committee recalls that the CGTP–IN had previously alleged that section 497 constitutes an anti-union provision which dissuades people from becoming union members, encourages them to leave trade unions, introduces discrimination between workers and allows employers to influence the worker’s choice of the applicable collective agreement. The Committee notes the CGTP–IN’s indication that although the Government has prepared an amendment to limit the application of this provision, the proposal as currently drafted is not far-reaching enough to solve the issue. The Committee recalls that this matter has been examined by the Committee on Freedom of Association (CFA) (Case No. 3072, 376th Report, paragraphs 914–927) and refers to its outstanding recommendations in this regard.

Article 3 of the Convention. Right of organizations to draw up their constitutions and rules. The Committee recalls that for a number of years it has been commenting on the obligation imposed on trade unions to regulate in their constitutions the direito de tendência, namely the right of trade union members to form channels of opinion through which they may participate in the functioning of the organization, and on the obligation imposed on the labour administration to assess union by-laws compliance therewith. In this respect, the Government indicates, as it had previously pointed out, that it must follow the jurisprudence of the Tribunal da Relação in Lisbon which considered that this right must not only be recognized and regulated by trade union constitutions but that the latter must also specify “in what way it can or must be exercised”. The Committee recalls that it had previously noted that there is a decision of 4 May 2011 of the same tribunal indicating that trade union constitutions are free to define the forms in which this right is implemented in practice. The Committee recalls that it had requested the Government to initiate discussions with the representative workers’ and employers’ organizations to examine the legislation in question and its application. The Committee notes the Government’s indication that the obligation requiring trade union associations to regulate the exercise of the right to political views (section 450(2) of the Labour Code) was sought to give effect to the provision of article 55(2)(e) of the Constitution, which guarantees the exercise of the direito de tendência. The Government explains that section 450 guarantees that a balance is struck between the principle of trade union independence and the principle of trade union democracy. The Committee understands that the Government did not engage with the social partners on the subject and therefore once again requests the Government to initiate discussions with the representative workers’ and employers’ organizations in order to examine the legislative provisions in question and their application in practice. The Committee requests the Government to provide information in this regard.

Requisition of striking workers. The Committee had previously noted that in grave situations, when minimum services indispensable for the satisfaction of vital social needs are not complied with, the Government may issue a ministerial order to requisition striking workers. The Committee had requested the Government to provide information on the application in practice of this possibility. The Committee takes note of the Government’s indication that this possibility was used in respect of a strike in 2014 in the aviation sector. Furthermore, the Committee notes the observation of the CIP that civil requisition, under article 1 of Decree-Law No. 637/74, has an exceptional character and is an instrument of last resort and that, since 1970, it has only been enacted three times, in 1977, 1997 and 2014.