Definitive Report - REPORT_NO268, November 1989

1. 152. In communications dated 16 and 25 January 1989, respectively, the CGTP-IN and SITRA presented complaints of violation of trade union rights in Portugal. The SITRA sent additional information in a letter dated 9 February 1989. The Government submitted its observations in a communication dated 1 June 1989.
2. 153. 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. The complainants' allegations

1. 154. The two complaints concern measures taken by the authorities on the occasion of a strike organised in public sector transportation enterprises, the Lisbon Railway Company and the Lisbon Underground Railway.
2. 155. In its complaint dated 16 January 1989, the CGTP-IN explains that its affiliate, the Federation of Trade Unions in Railway and Urban Transportation (FESTRU), and other trade union organisations representing the workers in these enterprises had begun to review the collective agreements in force in these enterprises on 23 September and 4 December 1987, respectively.
3. 156. According to the CGTP-IN, the enterprises concerned made counter-proposals for wage rises which were absolutely unacceptable and throughout the negotiations remained entrenched in their positions, which made it impossible to provide new working conditions to the workers concerned.
4. 157. The FESTRU and the other organisations thus had no choice but to resort to a strike in order to defend their right to better wages and working conditions. The strike in the Lisbon Railway Company began on 18 January 1988 and continued through January and February for two to four hours per day and 24-hour strikes were held on 17 and 28 March. Those strikes organised in the Lisbon Underground Railway started on 11 February and continued throughout February and March for four to five hours daily, except on 29 February and 4, 17 and 28 March, when they lasted 24 hours. The strike held on 28 March was a general strike covering all sectors of activity, organised by the two existing trade union confederations.
5. 158. By Resolution No. 5/88 of the Council of Ministers, dated 8 February 1988, the Government recognised the need to requisition the workers of the Lisbon Railway Company. By Decree No. 84-A/88, issued on the same day, the Government decided to proceed, under section 3(1)(c) of Legislative Decree No. 637/74, with the requisitioning of workers "participating in work stoppages in the enterprise and necessary to ensure the security and maintenance of equipment and installations for the provision of the minimum services required to meet the essential social needs which the enterprise must supply ...". Under this Decree, the requisitioning was to last one month, to be renewed automatically, and the workers were to be covered by the disciplinary regulations governing officials and employees of the central, regional and local administration. The Lisbon Railway Company board of directors then decided to implement the government Decree and that all of the railway workers affected by the strike would be requisitioned.
6. 159. Identical measures were adopted by the Government for the Lisbon Underground Railway enterprise (Decree No. 165-A/88), on the basis of which the board of managers of the enterprise ordered the conscription of workers to provide the necessary minimum services which were fixed at over 50 per cent of the services normally performed.
7. 160. The two confederations (CGTP-IN and UGT) called a general strike for 28 March 1988 to protest against the settlement which the Government intended to impose against the workers' will. The trade unions of the Lisbon Railway Company and the Lisbon Underground Railway enterprise issued a strike notice. The board of managers of the latter then decided to requisition workers, summoning them individually, in order to provide minimum services and ensure the security and maintenance of equipment and installations. Workers who failed to perform work on the day of the strike were subjected to disciplinary proceedings.
8. 161. In this respect, the CGTP-IN states that the organisations representing the workers in these enterprises always provide the minimum services necessary to ensure the security and maintenance of equipment and installations. It states further that during the strikes the enterprises made public announcements informing the population that they were placing alternative means of transportation at their disposal, which was in fact done by renting buses owned by private companies.
9. 162. Having analysed the various institutional and legislative texts in force, the CGTP-IN considers that the urban public transportation of passengers provided by the enterprises mentioned in the complaint cannot be considered as an "essential social need" which trade union organisations and striking workers must meet under the terms of section 8(1) of Act No. 65/77. According to the CGTP-IN, the Lisbon Railway Company and the Lisbon Underground Railway public enterprise do not constitute an essential service in the strict sense of the term. Section 8(1) of Act No. 65/77 allows restriction of the right to strike only if the minimum services are necessary to meet "essential social needs" and only to the extent strictly necessary. Neither do these services come under the principles of the Committee on Freedom of Association, as the life, personal safety or health of individuals were not endangered, since alternative transportation was placed at the public's disposal.
10. 163. According to the CGTP-IN, the Government also infringed the right to collective bargaining. The purpose of the strikes was to get the enterprises whose counter-proposals fell below the officially recognised inflation level to relax their intransigent attitude.
11. 164. In this connection, the CGTP-IN points out that the reasons adduced in Resolution No. 5/88 of the Council of Ministers concerning the requisitioning of the employees of the Lisbon Railway Company states that "the maximum financial resources justified by the economic and financial situation of the enterprise and allowed by the indispensable state aid have already been mobilised". According to the CGTP-IN, the proof that the requisitioning was aimed not at meeting social needs but at impeding the collective bargaining process lies in the fact that the prescribed duration of the requisitioning was 30 days, to be renewed, while the strikes only lasted 24 hours at most.
12. 165. Lastly, according to the CGTP-IN, these measures constitute a violation of freedom of association, since the Government, in the reasons adduced in Resolution No. 5/88 of the Council of Ministers, described the requisitioning as a penalty imposed on certain organisations stating that "some organisations are maintaining a sustained paralysis". The CGTP-IN states further that another severe violation of trade union rights was the imposition of disciplinary proceedings against the employees of the Lisbon Underground Railway on the pretext that they had failed to provide minimum services during the general strike of 28 March.
13. 166. In its communication of 25 January 1989, the SITRA, an affiliate of the General Workers' Union (UGT), explains that its members include employees of the Lisbon Underground Railway public enterprise. The managers of the enterprise are appointed by the Government. The complainant also recalls that, in order to be valid, a collective agreement concluded in a public enterprise must be authorised and approved by the appropriate ministry.
14. 167. The complainant explains that at the end of 1988 it began the normal collective bargaining proceedings with the board of directors of the Lisbon Underground Railway enterprise. Faced with the intransigent attitude of the latter, which offered wage increases well below the inflation rate, the trade union issued a strike notice, in accordance with the law, for three days (24 and 29 December 1988 and 16 January 1989). The enterprise then decided unilaterally to fix a minimum service level equal to 60 per cent of the enterprise's normal activities. According to the complainant, the Government aimed to prevent the free exercise of the right to strike and to bring pressure to bear on the trade unions to make them accept the enterprise's proposals. The complainant states further that the board of directors of the Lisbon Underground Railway enterprise issued an internal circular on 5 January 1989 stating that it did not recognise the strike movement of workers affiliated to trade unions that had not issued strike notices. The enterprise also stated that it would list the names of workers required to perform minimum services and that it would view any failure to comply with these internal circulars as unjustified absence, which, under Order No. 372A/75, may entail disciplinary proceedings for dismissal.
15. 168. The SITRA concludes its complaint by enclosing in its communication of 9 February 1989 a copy of an exchange of letters between it and the board of directors of the Lisbon Underground Railway enterprise.

B. The Government's reply

1. 169. In its reply, the Government states that strikes affected the CARRIS (railway company) from 18 to 22 January 1988, from 25 to 29 January 1988, from 1 to 5 February 1988, from 8 to 12 February 1988 and on 17 and 28 March 1988. As regards the Underground Railway (METRO), strikes were held in this sector on 11, 15, 17, 19, 22, 24, 26 and 29 February 1988 and on 4, 8, 17 and 28 March 1988. The Government states further that strikes were also held in other public transportation enterprises in the city: in the CP (railway passenger transportation of vital importance to the suburbs) on 17, 22 and 29 February and 3 and 4 March and in TRANS TEJO (ferries linking the banks of the Tagus River) on 29 February and 4 and 8 March.
2. 170. The Government adds that the METRO and the CARRIS are the only two passenger transport companies in Lisbon and that, respectively, they carry an average of 372,500 and 1,362,700 persons daily. It states that METRO is a public enterprise and CARRIS is a limited-liability public-capital company. The day-to-day management of these enterprises lies outside the purview of the State, which cannot therefore in good faith be held responsible for the actions of their directors.
3. 171. As regards the legal rules governing the right to strike, the Government emphasises that the right to strike is enshrined in the Portuguese Constitution as a fundamental right of workers. The exercise of this right is governed by Act No. 65/77 which lays down the following in particular: obligation of giving notice of intention to strike (section 5); normal notice of intention to strike, which is 48 hours (section 5(1)); extension of notice to five days in the case of services existing to satisfy "essential social needs" (section 5(2) and section 8); obligation of strikers and trade unions "during a strike to ensure performance of the indispensable minimum of services to satisfy such needs" (section 8(1)); obligation of the same workers and trade unions "to perform during a strike the services necessary for safety and upkeep of equipment and installations" (section 8(3)); the right of the Government "in case of inobservance (sic) of the provisions of this section" to "decide upon requisition or mobilisation in accordance with the appropriate law" (section 8(4)); and the non-exhaustive list of essential social services (section 8(2)).
4. 172. The requisitioning of striking workers, which is governed by Legislative Decree No. 637/74 of 20 November 1974, provides, inter alia, that: requisitioning consists of measures "necessary in a particularly serious situation to ensure or regulate the operation of essential services in the public interest" (section 1(1)); requisitioning is an exceptional measure (section 1(2)); essential services in the public interest are indicated in the various clauses of section 3(1) and include "the operation of land, sea, inland or air transportation" (section 3(1)(c)); requisitioning is only carried out once the need for it has been recognised by the Council of Ministers and it has been put into effect by decree of the ministries concerned (section 4(1) and 4(2)).
5. 173. In the particular circumstances of the present case, the Government notes that public transportation is considered to be an essential service in the public interest or existing to meet absolutely "essential social needs". It points out that the strike in the CARRIS had started on 18 January 1988, which means that it had been going on for 21 days, or 15 days of actual striking, not counting weekends by the time the conscription for public service was decided. Moreover, when requisitioning was decided, a new strike had already been called for the working days of the following week, i.e. 8 to 12 February. As regards the strike in the METRO, it had been held every other day since 11 February 1988, except on the last two days of the week, and had been going on for 36 days by the time the Government announced requisitioning measures. There had been 11 days of actual striking during this period.
6. 174. The Government adds that, although the CARRIS employees had only struck four hours every day, these stoppages had occurred at peak hours. According to the Government, they therefore had the same effect as 24-hour strikes, since they prevented working people from going to work or returning home, thus compelling them not to work at all. The same applied to the METRO strike.
7. 175. According to the Government, it is therefore obvious that this strike was capable of seriously disrupting the life of the inhabitants of the Lisbon metropolitan area for a long time and seriously harming the workers using public transportation since, by being prevented from going to work meant they risked losing their pay for the days on which they were absent. The complainant organisations themselves recognised that public transportation is an essential service in that they gave five days' notice and not 48 hours.
8. 176. The Government states further that, during the two strike campaigns under consideration, the strikers and the trade union organisations which promoted the strikes failed to provide the minimum services prescribed by law, although they had been reminded of their obligation in both enterprises. It was because of this failure to provide minimum services that the Government decided to requisition the striking workers. This requisitioning was only declared in respect of workers who were "involved in activities necessary to ensure safety and upkeep of equipment and installations and to provide the minimum services absolutely necessary to meet the essential social needs which the enterprise is obliged to meet". It was not intended to put an end to the strikes or to prevent them from being held but to ensure that the workers and trade unions provide minimum services.
9. 177. Moreover, points out the Government, in view of the fact that both trade unions and workers persisted in their failure to provide minimum services even after being requisitioned, the enterprises, and not the Government, individually summoned the workers who were supposed, by rotation, to provide such services. Lastly, since, despite all of these measures, the summons to maintain minimum services went unanswered and unheeded, the enterprises concerned, and not the Government, deemed the failure to perform such services to be a proved offence and they applied disciplinary measures for failure to carry out such minimum services. The enterprises responded correctly in doing so, as they are authorised in section 11 of Act No. 65/77.
10. 178. As regards the extent of minimum services, the Government points out that in the case of the strike in the METRO (SITRA's complaint), where under normal circumstances 129 trains operate per day, the prescribed minimum service requires 30 trains, i.e. 23.25 per cent of normal service. The personnel needed to operate these 30 trains amounts to only 300 workers out of a total of 1,700, i.e. barely 17.6 per cent of normal staff. In the strikes referred to in the CGTP-IN's complaint, the number of trains deemed necessary to ensure minimum service is 27 per day, i.e. 22.9 per cent of the 118 trains normally operating. In the case of the CARRIS, owing to the nature of the service provided by surface transportation, the percentage of resources assigned to minimum service (which the striking workers and trade unions failed to provide) did not exceed 50 per cent of the normal service, although the CGTP-IN claims that these resources were fixed at the same level as normal service.
11. 179. As regards the alternative transportation offered to users, the Government states that it is because strikers failed to comply with their legal obligation of ensuring essential minimum services during the strike that the enterprises affected by the strike were compelled to sign contracts with third parties in order to ensure the minimum services by providing emergency transportation. This emergency transportation was hired at the expense of the CARRIS and METRO enterprises. This, therefore, was an exceptional and temporary solution.
12. 180. The Government denies that its purpose in ordering requisitioning was to prevent CARRIS and METRO employees from following the general strike call issued by the confederations for 28 March 1988. The watchword of the strike planned for that date in the CARRIS and the METRO was "for a speedy negotiation of the enterprise agreement; for a fair wage truly compensating workers' lost purchasing power; for an improvement of working and living conditions"; these are not the objectives of the general strike declared for the same day.
13. 181. As regards collective bargaining in public enterprises, the Government states that the legislation has been amended by Legislative Decree No. 87/89 of 23 March 1989. Under sections 13 and 24, as amended, the entry into force of collective agreements in public enterprises is not conditional upon evidence of express approval by the appropriate ministry. Approval is required for official publication of the agreement, but not for its entry into force.
14. 182. Examining the situation in the light of international labour standards and the principles of the Committee, the Government notes that, even assuming that public transportation is an essential service only in the broad sense of the word and not strictly speaking, the long duration of the strikes - 21 days in the CARRIS, 36 days in the METRO - is generally considered, in view of the living conditions prevailing in large cities, to be a source of serious prejudice to the community, and the Government therefore has the right to adopt legitimately measures aimed at mitigating the effects of such strikes.
15. 183. The Government therefore concludes that it has not committed any act involving violation of the obligations it assumed in ratifying Conventions Nos. 87 and 98, and neither have the enterprises concerned.

C. The Committee's conclusions

1. 184. The Committee notes that this case concerns requisitioning measures adopted in connection with strikes organised in the Lisbon public transportation system. Allegations were also made regarding the requirement for authorisation by the appropriate ministry for the entry into force of collective agreements concluded in public enterprises.
2. 185. First, the Committee must recall the importance which it attaches to workers and their organisations being able to strike as a legitimate means of defending and promoting their occupational interests. In this case, the Committee observes that Portuguese legislation recognises the right to strike (Act No. 65/77), subject to notification requirements.
3. 186. The Committee has, however, accepted that the right to strike may be restricted or even prohibited in essential services, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. (See, for example, 234th Report, Case No. 1255 (Norway), para. 190; 236th Report, Case No. 1140 (Colombia), para. 144.) The Committee has also pointed out on a number of occasions, in particular as regards the transportation sector (see, for example, 197th Report, Case No. 823 (Chile), para. 411; 204th Report, Case No. 952 (Spain), para. 159), that the principle concerning the prohibition of strikes in essential services may well become meaningless if a strike in an undertaking which does not furnish an essential service in the strict sense of the term is declared illegal.
4. 187. In the present case, the Committee notes that the legislation does not prohibit all strikes in the transportation sector. The law requires, however, that trade union organisations and workers ensure performance of the indispensable minimum services required to satisfy essential social needs, as well as the services necessary for safety and upkeep of equipment and installations (section 8 of Act No. 65/77). In the event of failure to comply with these provisions, the Government may decide on requisitioning or mobilisation (section 9 of the same Act).
5. 188. In this respect, the Committee draws attention, as it has done in other cases (see, inter alia, 214th Report, Case No. 1021 (Greece), para. 123; 234th Report, Case No. 1201 (Morocco), para. 550), to the possible abuse of mobilisation and requisitioning measures as a means of settling labour disputes. In such cases, the Committee has pointed out that it is inappropriate to resort to such measures, except for the purpose of maintaining essential services in circumstances amounting to an acute crisis.
6. 189. However, the Committee is aware that a total and prolonged stoppage of public transportation in a major city, as in the present case, where work stoppages were numerous, albeit of limited duration, may lead to circumstances in which it would be necessary to ensure a minimum service in order to avert a situation of acute crisis. In order to be acceptable, such a minimum service should, on the one hand, be limited to operations strictly necessary to guarantee the life, personal safety or health of individuals, and on the other, workers' organisations as well as employers and public authorities should be able to participate in defining such a minimum service.
7. 190. In this case, the Government stated that the trade union organisations and workers failed to supply the minimum services which they are obliged to provide under the law. The Committee observes, however, that Act No. 65/77 does not specify whose decision it is to fix the level of minimum services which should be provided. Neither do there appear to have been any negotiations between the enterprises concerned and the trade unions covering what this level should be.
8. 191. The Committee also notes on this point that the versions given by the complainants and the Government are contradictory. As regards the Lisbon Underground Railway the complainants refer to a minimum service amounting to 60 per cent of normal activities, whereas the Government cites figures of the order of 17 per cent; in the case of the railways the percentage given by the complainants is 100, while the Government refers to 50 per cent. The Committee does not have sufficient information at its disposal to come to a decision regarding these percentages. In these circumstances, it confines itself to recalling the principles outlined above as regards minimum services to be provided in the event of a strike.
9. 192. The complainants also reported that disciplinary proceedings had been initiated against strikers who had failed to comply with requisition orders. However, neither they nor the Government specified the outcome of these proceedings. In these circumstances, therefore, the Committee can only recall that the development of industrial relations could be impaired by an inflexible attitude being adopted in the application of excessively severe sanctions to workers who participate in strikes. (See, for example, 218th Report, Case No. 1100 (India), para. 687.)
10. 193. As regards the allegations concerning the requirement for approval of the appropriate ministry for the entry into force of collective agreements concluded in public enterprises, the Committee notes that the Committee of Experts on the Application of Conventions and Recommendations and this Committee, in a previous case concerning Portugal (see 248th Report, Case No. 1370), invited the Government to amend its legislation to ensure that prior authorisation may be refused only on grounds of irregularity. The Committee notes that the Government now makes reference to an amendment to the legislation under which the entry into force of collective agreements concluded in public enterprise is not conditional upon evidence of express approval of the appropriate ministry, this approval only being required for official publication of the agreement. The Committee draws this aspect of the case to the attention of the Committee of Experts so that the latter may study the new legislative provisions in the context of the application of Convention No. 98.