Definitive Report - REPORT_NO254, March 1988

1. 108. The National Trade Union of Civil Aviation Flight Personnel (SNPNAC) presented a complaint of violations of freedom of association against the Government of Portugal in a communication dated 16 September 1987. The Government sent its comments and observations in communications dated 14 and 28 January 1988.
2. 109. Portugal has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Allegations of the complainant trade union

1. 110. The SNPNAC states that it is a trade union association which has been legally established under Portuguese legislation, its rules having been published in the Official Gazette. Most of its members are employed by the Portuguese airline, TAP, a public civil aviation undertaking whose main activity is overseas air transportation, explains the complainant trade union.
2. 111. It states further that it is currently engaged in an industrial dispute started by TAP, through its board of directors, and which, in practice, infringes the trade union rights and the right to collective bargaining of its members, who are protected by Conventions Nos. 87 and 98, ratified by Portugal.
3. 112. The complainant trade union explains that TAP is a nationalised undertaking placed under direct government supervision, that the members of its board of directors are all appointed by the Government and that, in 1980, the undertaking was declared by the Government to be in a "difficult economic situation", which meant that the rights negotiated in collective agreements have been significantly restricted by the application of new rules replacing the provisions of freely concluded agreements.
4. 113. The complainant describes the situation as regards the regulations governing working conditions in this branch. It explains that collective labour relations are now governed by an enterprise level agreement and an arbitration award which have cancelled certain controversial clauses following an arbitration procedure voluntarily undertaken by the parties. Both the agreement and the arbitration award were published in the Boletin do Trabalho y Emprego, Series 1, No. 10, 1985, of which the complainant trade union encloses a copy. It also specifies that at the time when these texts were published, the hours of work of cabin personnel, who account for nearly all of SNPNAC members, were governed by Decree No. 31/74, enclosed with the complaint. However, while negotiations on the above-mentioned enterprise-level agreement were taking place, two draft regulations on the minimum cabin crew and on the hours of flight duty and rest of flight personnel in air transportation were published in the Boletin do Trabalho y Emprego in order to inform the public, in accordance with Act No. 16/79. The draft amendments to Decree No. 31/74 provided that the maximum (continuous) flight duty time would be 15 hours for cabin flight personnel.
5. 114. The arbitration award accepted by the SNPNAC therefore took this into account in the wording of clause 46-A, explains the complainant trade union. As a result, the maximum flight duty time for cabin crew is 13 and a half hours (clause 46-A, paragraph 1), but under paragraph 7 of the same clause, this limit may be exceeded at the captain's initiative, "should such a change be necessary to the performance of flight duty, that is, the upper limit provided for in paragraph 1 may be raised to 15 hours".
6. 115. In accordance with this provision (clause 46-A of the arbitration award) and in view of the fact that in Portugal collective labour instruments may fix lower limits on hours of work than those set by legal standards (section 6(1) c) of Legislative Decree No. 519/C1/79 of 21 December 1979), the SNPNAC's interpretation has always been that the maximum duration of flight duty for cabin crew is 13 and a half hours (paragraph 1), although the captain may increase the limit to 15 hours if necessary. According to the complainant trade union, the wording of this clause does not raise any doubts.
7. 116. It explains that hours of flight duty and rest of flight personnel were subsequently governed by Ministerial Order No. 408/87 of 14 May 1987, which terminated the effect of Decree No. 31/74. Until this Ministerial Order was published, no questions had been raised as to the interpretation of clause 46-A of the arbitration award; at one point, the parties even changed the wording temporarily of paragraph 7 of that clause by deleting the last part specifying a 15-hour time-limit. However, shortly after publication of the Order, the undertaking alleged that it enabled the captain to exceed the limit on flight duty time laid down in the arbitration award in order to complete a flight or return to base, by raising it to the maximum laid down in the above-mentioned Ministerial Order.
8. 117. TAP, which interprets the maximum limits as being those laid down in the Ministerial Order, concluded that the duration of a flight scheduled to last 13 and a half hours may be prolonged to 18 hours for the cabin flight crew, that is, 15 hours (the upper limit set in section 4 of the Order) plus three additional hours in the event of unforeseen reasons or force majeure as provided in section 8 of the Order. According to the complainant, however, this attitude infringes the right to conclude collective labour contracts allowing the parties the right to regulate their interests themselves by setting lower limits on hours of work than those provided for in legislation.
9. 118. The complainant trade union refutes the argument that such an increase in flight duty time would only occur in exceptional cases. In fact, in its view, the terms of the collective labour instrument make provision for such situations, as has been demonstrated, by limiting them to what was laid down in the arbitration award.
10. 119. The complainant states further that TAP insisted on imposing its interpretation, obliging cabin personnel to perform a maximum of 18 hours' flight duty, and instituted disciplinary proceedings against ten SNPNAC members accused of having refused - in conformity with the arbitration award - to work beyond the upper limit fixed in this agreement. It encloses a photocopy of one of the reprimands sent to one of its members and the reply made to it.
11. 120. The complainant trade union adds that, in protest, it issued a strike warning to the undertaking which, faced with the firm stand taken by the trade union, following a number of discussions, agreed to cancel, without loss of remuneration, the suspensions which had been unlawfully imposed and to conduct a thorough inquiry into the facts concerning the flight which gave rise to the proceedings. The SNPNAC therefore called off the strike.
12. 121. In the agreement protocol which was drawn up at the time, the SNPNAC, in a conciliatory spirit, stated that it would make every effort so that the agreed limits on flight duty time could be exceeded in genuinely exceptional circumstances. But the signatories of the agreement protocol did not have the necessary powers to revise the enterprise-level agreement in force, and therefore clause 46-A of the arbitration award was at no time changed, according to the complainant trade union.
13. 122. Thus, the consensus reached only reflects the union's good faith and its intention to recall that, in situations where the undertaking had no other alternative, cabin personnel would continue to display goodwill by agreeing, if necessary, to exceed the limits fixed by the parties.
14. 123. The complainant trade union states further that it goes without saying that it never agreed to annul clause 46-A or to allow the undertaking to impose a limit on flight duty - once the schedule has been fixed - of 18 consecutive hours.
15. 124. It is to be deplored that, immediately after signing the protocol, TAP publically stated through the public communication media that the SNPNAC had accepted the obligation for its members to perform 18 consecutive hours of flight duty, should the captain so decide. The SNPNAC retaliated immediately by having a motion of protest approved by the general assembly of its members. TAP, which persisted in refusing to apply the provisions contained in the collective labour instrument, again issued a public statement expressing its intention to distort the letter and the spirit of the arbitration award.
16. 125. In view of the above, the complainant trade union considers that it should be stated that in the case at issue, the board of directors of TAP, placed under the supervision of the Portuguese Government, infringed the right to freedom of association and to conclude collective labour agreements, by refusing to respect the enterprise-level agreement and the arbitration award on flight duty time for cabin personnel, which contain more favourable provisions than those of the law which it insists on imposing at all costs.

B. The Government's reply

1. 126. In its reply dated 14 January 1988, the Government communicates the information it has gathered from the ministry in charge of supervising the public undertaking TAP and from the latter's board of directors, from which it appears that the facts are as follows.
2. 127. In 1985, Legislative Decree No. 56 of 4 March 1985 was issued in accordance with national technical standards on the operation of aircraft and with the recommendations of the International Civil Aviation Organisation. This Legislative Decree vests the Ministry of Equipment with the power to issue regulations, in the form of an order, on various matters, including "the duration of flight duty and rest of crews of aircraft engaged in commercial and private air transportation".
3. 128. Section 5 of Legislative Decree No. 56/85 repeals Decree No. 31/74 cited by the complainant trade union, but provides that the latter's provisions shall temporarily remain in force until publication of the above-mentioned Order.
4. 129. The Government considered that the matters dealt with in the Order, although of a technical nature, could be interpreted in a certain way as constituting labour legislation, and therefore the draft in question was submitted for public discussion under the conditions laid down in Act No. 16/79 respecting workers' participation in drafting labour legislation.
5. 130. The Government stated that the complainant trade union outlined its position on the contents of the draft Order in a written contribution, of which it sends a copy, and that Order No. 408 of 14 May 1987 was subsequently published.
6. 131. The Government concludes that the persons concerned were heard at the time when this text was being drawn up and that the principles of tripartism on which the ILO's work is based have been taken into consideration.
7. 132. As regards the totally exceptional and unpredictable situation which occurred only once, in which a captain ordered continuation of a flight, thus extending flight duty time within the limits and conditions laid down in section 8(2) of the regulations approved by Order No. 408/87, and under the control of the competent aeronautical authority, in conformity with subsection 3 of the same section 8, the Government, while admitting the facts, states the following.
8. 133. According to the Government, this entirely exceptional possibility is only justifiable in the event of unforeseen reasons and force majeure and was already provided for by the draft submitted to public discussion, as may be seen from the document which it encloses with its reply.
9. 134. The complainant trade union acknowledged and accepted the possibility of such an exceptional prolongation, although it would have liked to limit it to one hour, as was stated in the contribution made by the trade union regarding the above-mentioned draft, on 12 November 1985, in the course of the public discussion.
10. 135. Moreover, according to the Government, international provisions concerning hours of work allow the limits to be exceeded in exceptional circumstances (see international labour Conventions Nos. 1, 30, 43, 46, 51, 61, 67 and 153).
11. 136. In the present case, considers the Government, it follows from the documents enclosed with the complaint and the additional information provided by TAP in its reply, of which the Government encloses a copy, that the Lisbon-Montreal-Toronto flight (TP 302 of 29 July 1987) arrived in Montreal two hours and 28 minutes late for unforeseen technical reasons. Failure to continue the flight to Toronto would have caused serious prejudice, since 76 passengers would have had to spend the night in Montreal or be transported by another airline at TAP's expense. This is why the captain decided to avail himself of the exceptional power conferred on him by section 8(2) of Order No. 408/87, ten members of the cabin personnel having refused to continue the flight.
12. 137. As regards the disciplinary proceedings allegedly instituted against members of the cabin crew, the Government states that it is unable to confirm facts of which it is unaware and which concern cabin crew members affiliated to the complainant trade union and the TAP undertaking. Nevertheless, adds the Government, considering the form of the present complaint, this is a matter for the Portuguese courts, to which both sides may present their arguments.
13. 138. In a subsequent communication, dated 28 January 1988, the Government communicates the observations of the board of directors of TAP on this matter, in which the employer specifies that under section 8(2) of the regulations approved by Order No. 408/87, the limits on hours of work may be extended in the event of unforeseen reasons and force majeure, in which case the captain must justify his decision and send a report within 15 days to the General Directorate of Civil Aviation (subsection 3 of section 8). In the case in question, such a report was in fact sent to the competent authority, which noted that the period of flight duty had hardly exceeded 30 minutes, whereas the captain, under the legal provisions in force, had authority to exceed the statutory limit on flight duty time by up to three hours.

C. The Committee's conclusions

1. 139. The Committee notes that the present complaint concerns a labour dispute referred to by the National Trade Union of Civil Aviation Flight Personnel concerning the hours of work of cabin personnel of the Portuguese airline, TAP.
2. 140. According to the complainant trade union, the employer, TAP, a public undertaking placed under government supervision, infringed its right to conclude collective contracts by applying the Ministerial Order providing for a maximum flight duty time which is higher than that provided for in the enterprise-level agreement and the arbitration award. In addition, the undertaking imposed disciplinary penalties (even though the penalties were subsequently lifted) on ten members of the cabin crew who merely refused to work beyond the limit fixed by the arbitration award, during the flight TP 302 of 29 July 1987.
3. 141. The Government, on the other hand, considers that, firstly, the above-mentioned Order which amended, inter alia, the "duration of flight duty and rest of crews of aircraft engaged in commercial and private air transportation", was adopted on the basis of a Legislative Decree after consultation of workers and employers under the terms of the Legislative Decree of 4 March 1985, itself adopted in accordance with national technical standards governing the operation of aircraft and with the recommendations of the International Civil Aviation Organisation.
4. 142. Secondly, the case at issue referred to by the complainant trade union involves a totally exceptional and unforseeable situation. Thus, during flight TP 302 of 29 July 1987, a captain had to order continuation of a flight, in the event of unforeseeable reasons and force majeure (as permitted in section 8(2) of the regulations approved by Order No. 408 of 14 May 1987), since the Lisbon-Montreal-Toronto flight had arrived in Montreal two hours and 28 minutes late for unforeseen technical reasons, and since failure to continue the flight to Toronto would have caused serious prejudice to the passengers.
5. 143. The Committee, for its part, gathers from the voluminous documentation supplied both by the complainant trade union and by the Government that the protocol of agreement signed by TAP and the SNPNAC on 28 August 1987 simultaneously lifted the disciplinary penalties, instituted an inquiry into the case which had given rise to the dispute, and called off the strike warning issued by the same complainant trade union.
6. 144. Moreover, the documentation indicates that the complainant trade union lodged a complaint with the Public Prosecutor of Portugal in order to obtain a total clarification of the legal situation as regards the limits on flight duty time which should be observed by trade union members. Finally, the Government itself states that this is a matter for the Portuguese courts.
7. 145. Having considered all of these elements, the Committee can only note that Order No. 408 of 14 May 1987 provides for maximum hours of work which are higher than those fixed by the arbitration award applicable to TAP personnel. Systematic application of this Order by TAP would therefore run counter to the arbitration award freely accepted by both parties, and would infringe the right to collective bargaining of the workers' organisations concerned.
8. 146. However, the Committee must note that the Order provides for a continuation of flights beyond 15 hours only in the event of unforeseen reasons and force majeure. In the case in question, this possibility was only used on one occasion in unforeseen circumstances. In addition, the complainant trade union itself, in a spirit of conciliation, admitted that in really exceptional circumstances the limits on flight duty time may in fact be exceeded.
9. 147. In these conditions, in view of the exceptional circumstances underlying the application of hours of work in excess of those provided for in the arbitration award, the Committee considers that the case does not call for further examination.