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Holidays with Pay Convention (Revised), 1970 (No. 132) - Portugal (RATIFICATION: 1981)

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Previous comments: C.14, C.106, C.132 and C.171

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos. 14 (weekly rest (industry)), 106 (weekly rest (commerce and office), 132 (annual holidays with pay) and 171 (night work) together.

Weekly rest

Article 5 of Convention No. 14 and Articles 7(2) and 8(3) of Convention No. 106. Compensatory rest. The Committee notes the Government’s indication in its report that compulsory weekly rest is guaranteed by section 232(1) of the Labour Code and that an additional weekly rest, whether continuous or intermittent, occurring in some or all weeks of the year, can be established through a collective labour agreement (section 232(3) of the Labour Code). The Government also informs that when employees work on a compulsory weekly rest day, they are entitled to a paid compensatory rest day, with a 50 per cent or 100 per cent increment, to be taken on one of the following three working days. The Committee notes the observation made by the General Confederation of Portuguese Workers (CGTP) which indicates that additional weekly rest days are nearly universal and included in most collective agreements. CGTP also informs that the repeal of the right to paid compensatory rest in case of overtime on additional weekly rest days, as stipulated by Law No. 23/2012, was carried out under the pretext of fulfilling obligations arising from the financial assistance granted by the International Monetary Fund, the European Central Bank and the European Commission. However, CGPT emphasizes that more than seven years have passed since this modification, and despite several amendments to the Labour Code, compensatory rest in case of overtime on additional weekly rest days has yet to be reinstated. The Committee requests the Government to provide information on measures adopted or envisaged to ensure that compensatory rest is compulsorily granted in all cases of exemptions, whether permanent or temporary, from the normal weekly rest scheme, in accordance with Conventions Nos. 14 and 106.

Annual holidays with pay

Articles 11 and 12 of the Convention No. 132. Prohibition to relinquish or forgo the right to an annual holiday with pay. The Committee notes the information provided by the Government that section 244(3) of the Labour Code, which stipulates that in cases of complete or partial impossibility to take annual leave, the worker is entitled to the corresponding remuneration for the unused leave or the option to use it until 30 April in the subsequent year, coupled with financial compensation, in circumstances where it is impossible to take annual leave during a particular calendar year due to the worker’s impediment, including cases of illness. However, the Committee wishes to emphasize that agreements to forgo holiday in exchange for compensation shall be prohibited. The Committee requests the Government to provide information on measures taken or envisaged to bring the national legislation into full conformity with the Convention on this point.

Night work

Article 4(1) of the Convention No. 171. Health assessment of workers, at their request, during their assignment. The Committee notes that, according to the information provided by the Government, section 225 of Labour Code provides for cost-free and confidential medical examination for night workers, along with a specific risk assessment, which is required to evaluate the suitability of the job for the worker, considering their physical and mental condition, both prior to commencing the activity and subsequently every six months. The Committee notes CGTP’s observation that the Labour Code still does not provide for free medical examinations to be carried out at the worker’s request when health issues arise in connection with working under this regime. Therefore, the Committee requests the Government to provide information on measures adopted or envisaged to ensure that night workers are entitled to request and undergo a health assessment free of charge when experiencing health problems linked to night working, independently from any regular medical examination otherwise scheduled by the employer.

Articles 5. First-aid facilities. The Committee notes the observation of CGTP that, although the Labour Code stipulates that the employer must organize occupational safety and health activities in such a way that night workers benefit from a level of protection appropriate to the nature of their work and that these resources are available at all times, the provision is quite general and does not by itself guarantee that night workers actually have access to suitable first-aid facilities. The Committee requests the Government to provide its comments in this respect.

Article 7(3)(a). Maternity protection. Prohibition of dismissal. The Committee notes the observation of CGTP that section 63 of the Labour Code contains a general provision for the protection of pregnant, postpartum or lactating workers in case of dismissal, but does not contain an absolute prohibition of dismissal or notice of termination of such workers engaged in night work. It also informs that this protection does not apply in cases of other forms of employment contract termination, such as the expiration of a fixed-term employment contract. The Committee requests the Government to provide its comments in this respect.

Article 9. Social services. The Committee notes that according to the CGTP, the current legislation does not address the appropriate social services for night workers, particularly regarding transportation to and from the workplace during hours when public transportation is not available, as well as issues related to meals and other support facilities. The Committee once again requests the Government to indicate any specific measures it intends to take to further improve the working conditions of night workers having regard to the special needs in terms of rest, transport, food and catering, organization of family life and recreational facilities.

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Articles 6(2), 11 and 12 of the Convention. Days of incapacity due to illness not to be counted as part of annual leave – Prohibition to relinquish or forgo the right to an annual holiday with pay. The Committee notes that, under section 244(3) of the Labour Code, as amended by Act No. 7/2009 of 12 February 2009 and Act No. 23/2012 of 25 June 2012, annual leave that is not taken due to incapacity to work until 30 April of the calendar year following the year in respect of which the holiday entitlement arose, may give rise to financial compensation. The Committee recalls, however, that the Convention permits unused leave to be replaced by cash compensation only in the case of termination of employment. The Committee accordingly requests the Government to take the necessary measures to bring the national legislation into full conformity with the Convention on this point.

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The Committee notes the adoption of Act No. 99/2003 of 27 August 2003 issuing the Labour Code, as well as its regulations (Act No. 35/2004 of 29 July 2004).

Article 8, paragraph 2, of the Convention. Division of the annual holiday with pay. The Committee notes that under section 217(6) of the Labour Code, the period covering the annual holiday with pay may be divided into parts, following an agreement between the employer and the worker, provided that one of the parts consists of ten consecutive working days. In this regard, the Committee recalls that the Convention requires that the minimum length of one of the parts is at least two uninterrupted working weeks, which would mean 12 working days’ holiday based on a six-day working week. The Committee requests the Government to provide clarification on this point.

Part V of the report form. Practical application. The Committee notes the statistical information provided by the Authority for Conditions of Work (ACT), as well as the information provided by the Autonomous Region of the Azores (RAA). It also notes the general comments made by the General Union of Workers (UGT) on the need for holidays as a result of the concentration of production, increasing urbanization, the sometimes breakneck pace of life, pollution, neighbourhood relations, social relations and the lack of satisfaction among workers with regard to cultural, recreational and domestic matters. The Committee requests the Government to continue to provide up to date information on the manner in which the Convention is applied in practice, including, in particular, extracts from the activity reports of the ACT indicating the number and type of violations reported and the sanctions imposed, information concerning the number of workers covered by the relevant legislation, etc.

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Article 9(1) of the Convention. Division and accumulation of annual holidays with pay. The Committee refers to its previous comments in which it noted that section 7(3) of Legislative Decree No. 874/76 allowed the accumulation of leave for two years for certain workers and was therefore not in conformity with Article 9, paragraph 1, of the Convention, according to which a part of the holiday (a minimum of two working weeks) must be granted and taken no later than one year from the end of the year in respect of which the holiday entitlement has arisen.

The Committee notes with satisfaction that, following the adoption of Act No. 99/2003 issuing the Labour Code, Legislative Decree No. 874/76 has been repealed. It also notes that under section 215, paragraph 1, of the Labour Code, leave must be taken during the calendar year in respect of which the holiday entitlement has arisen, and accumulation during the same year of leave for two years or more is not permitted.

The Committee raises other points in a request addressed directly to the Government.

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Article 9, paragraph 1, of the Convention. Accumulation of leave. The Committee notes that section 7(3) of Legislative Decree No. 874/76 has not been amended and continues to allow the accumulation of leave for two years for certain workers. The Committee has noted the Government’s statement that it will amend the provision to bring it into conformity with the Convention. The Committee hopes that the amendments will be made in the near future and requests the Government to keep it informed on all progress achieved.

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The Committee notes from the Government's report the adoption of Legislative Decree No. 397/91 of 16 October 1991, amending the holidays with pay provisions of Legislative Decree No. 874/76 of 28 December 1976. The Committee requests the Government to provide additional information on the following points:

1. In its previous comments, the Committee noted that section 7(3) of Legislative Decree No. 874/76 allows the accumulation of leave for two years for certain workers. The Committee observes that Legislative Decree No. 397/91 does not amend this section. It therefore must reiterate that section 7(3) of 874/76 is not in conformity with Article 9, paragraph 1, of the Convention, according to which a part of the holiday (a minimum of two working weeks) shall be granted and taken no later than one year from the end of the year in which the holiday entitlement has arisen. It requests the Government to take the necessary measures to bring the legislation into conformity with the Convention on this point.

2. With regard to domestic workers, the Committee notes the provisions of Legislative Decree No. 235/92 of 24 October 1992. It requests the Government to indicate whether there are any legislative provisions or regulations which prescribe that absence due to illness or accident should not be counted as part of a domestic worker's annual holiday, in accordance with Article 6, paragraph 2. It would be grateful if the Government would specify the arrangements under which such absences are not counted as part of the holiday with pay when they occur during holidays.

3. The Committee would be grateful if the Government would provide further information on any violations of holiday provisions reported and, if appropriate, the sanctions imposed (see Article 14 and point V of the report form).

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The Committee notes the information supplied in reply to the previous direct request.

1. Please provide a copy of the Social Agreement relating to all workers except those in the public service and - according to the report - ensuring implementation of the Convention as regards the points mentioned by the Committee.

2. The Committee hopes that the new legislation now envisaged will deal expressly with the matters referred to earlier, namely:

(a) public and customary holidays should not be counted as part of the minimum holiday with pay (Article 6(1) of the Convention);

(b) when the holiday is divided into parts, one part should consist of at least two uninterrupted working weeks (Article 8(2));

(c) the accumulation of leave for two years allowed by section 7(3) of Legislative Decree No. 874/76 in respect of certain workers should be limited in accordance with Article 9;

(d) as regards domestic workers, periods of incapacity for work resulting from sickness or injury should not be counted as part of the annual holiday with pay (Article 6(2)); the remuneration due for the holiday period should be paid in advance (Article 7(2)); a part of the annual holiday consisting normally of at least two uninterrupted weeks should be taken no later than one year from the end of the year in respect of which the entitlement arises (Article 9(1)); and on termination a holiday with pay proportionate to the relevant length of service or compensation in lieu should be granted (Article 11).

3. As regards workers in the public service, the Committee has noted the provisions of Legislative Decree No. 497/88.

4. The Committee would be grateful if the Government would include in future reports available information as to the manner in which the Convention is applied (Article 14 and Part V of the report form).

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With reference to its previous comments, the Committee notes the information supplied by the Government to the effect that:

- in the new text of the Legislative Decree respecting holidays, public holidays and absences, which is currently being prepared, it is expressly provided that public holidays shall not be taken into account when calculating the holiday period (Article 6, paragraph 1, of the Convention);

- the Government is prepared to formulate in a more precise way the principle under which, in the event of the annual holiday being divided into parts, one of the parts shall consist of at least two weeks (Article 8, paragraph 2);

- in the current revision of the legal regulations respecting domestic service account will be taken of the Committee's comments concerning the application to domestic workers of the following provisions of the Convention: Article 6, paragraph 2 (periods of incapacity for work resulting from sickness and injury shall not be counted as part of the annual holiday with pay); Article 7, paragraph 2 (the amounts due for the holiday period shall be paid in advance of the holiday); Article 9, paragraph 1 (a part of the annual holiday, as a rule at least two weeks, shall be taken no later than one year from the end of the year in respect of which the holiday entitlement has arisen); and Article 11 (in the event of termination of employment, the worker shall receive a holiday with pay proportionate to the length of service, or compensation in lieu thereof);

- the draft Ordinance respecting the holidays of public officials, which will give full effect to the provisions of the Convention, will be published in the near future.

The Committee hopes that the next report will contain full information on any progress achieved in the adoption of the above measures which are intended to give full effect to the provisions of the Convention.

Furthermore, although noting the explanations given by the Government with regard to the application of Article 9, paragraph 1, which referred to section 7(4) of Legislative Decree No. 847/76, the Committee is bound to point out that section 7(3) of the same Decree, which authorises certain classes of workers to accumulate holidays for two years, is not in conformity with Article 9, paragraph 1. It hopes that this divergency can be eliminated when the new text of the Legislative Decree on holidays, public holidays and absences is adopted.