REPRESENTATION (article 24) - PORTUGAL - C087, C098, C135 - 1985

Report No. 240 of the Committee on Freedom of Association, Case No. 1303 -- Representation presented by the General Confederation of Portuguese Workers-National Inter-Union (CGTP-IN) under article 24 of the Constitution concerning non-observance by the Government of Portugal of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Workers' Representatives Convention, 1979 (No. 135)

Complaint Procedure

1. 50. By letter dated 1 March 1984, the General Confederation of Portuguese Workers-National Inter-Union (CGTP-IN), referring to article 24 of the ILO Constitution, presented a representation alleging failure by Portugal to implement a number of international labour Conventions which it had ratified, namely the Forced Labour Convention, 1930 (No. 29), the Labour Inspection Convention, 1947 (No. 81), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Protection of Wages Convention, 1949 (No. 95), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Abolition of Forced Labour Convention, 1957 (No. 105), the Labour Inspection (Agriculture) Convention, 1969 (No. 129), the Holidays with Pay Convention (Revised) , 1970 (No. 132), and the Workers' Representatives Convention, 1979 (No. 135).
2. 51. At its 226th Session (Geneva, May 1984), the Governing Body of the International Labour Office, which had before it a report by its officers relating to the CGTP-IN representation, decided that the representation was receivable, appointed a committee to examine it with respect to the Conventions that did not deal with freedom of association, and decided to refer the aspects of the representation relating to failure to implement Conventions Nos. 87, 98 and 135 to the Committee on Freedom of Association.
3. 52. The complainant Confederation sent additional information in support of its representation on 9 August 1984. The Government sent information and observations on the aspects of the representation concerning freedom of association in communications of 10 December 1984 and 15 February 1985.
4. A. Allegations of the complainant Confederation
5. 53. The General Confederation of Portuguese Workers-National Inter-Union (CGTP-IN) alleges failure by the Government of Portugal to implement Conventions Nos. 87, 98 and 135. More specifically, the CGTP-IN states that the situation in Portugal is taking a dramatic turn resulting in the non-payment of wages or delays in their payment beyond the date on which they are due, despite the fact that in many cases the work has effectively been performed and that undertakings are continuing to operate. With reference to the freedom of association Conventions, the complainant states that this is aggravated by the fact that in many cases employers are unlawfully retaining the workers' trade union dues, which under Act No. 57/77 of 5 August 1977 they are obliged to deduct from wages and remit to the unions concerned.
6. 54. The complainant states that, upon verification of the serious allegations concerning the non-payment of wages, which constitute a violation of the workers' basic rights as set out in various ratified Conventions, it would like the Committee on Freedom of Association to examine the case at a later stage in order to give a ruling as to whether this situation in practice amounts to a serious violation of the standards on freedom of association. In the opinion of the CGTP-IN the non-payment of wages has in practice given rise to a situation in which the most basic trade union rights are being totally flouted. This question is therefore important and serious enough for the Committee of Association to state unequivocally that such behaviour is directed against trade unions.
7. 55. The CGTP-IN attaches to its complaint a large volume of documentation and states that in December 1983 it had recorded 456 undertakings owing wages to 143,190 wage earners, which means that, out of a total number of wage earners of about 2,181,000 in June 1983, 5.2 per cent were suffering a delay in the payment of their wages. This illustrates the seriousness of the problem. According to the CGTP-IN, the State is directly responsible for the non-payment of wages to a large number of workers in public undertakings or undertakings financed out of public funds. The Confederation communicates a list of public-sector undertakings with wage debts, recording 21 undertakings with 265,474 wage earners (annex XI to document No. 1). In addition, in document No. 2, the CGTP-IN mentions an article published in the trade union weekly Semanário of 23 December 1983, entitled "Undertakings are retaining trade union dues". This weekly was, however, not enclosed with the documentation.
8. B. The Government's reply
9. 56. In its communication of 10 December 1984, addressed to the ILO in response to the allegations relating to the Conventions other than those concerning freedom of association, the Government states that the allegation relating to the unlawful retention of trade union dues by employers is unfounded. It recalls that under Act No. 55/77 of 5 August 1977 the system for the collection of trade union dues by deductions from wages is always the result of an agreement freely concluded between the parties and may not be applied without the express consent of the worker. If these conditions are fulfilled, the trade union association may take the employer to court to obtain payment of the sum corresponding to the dues when this is not paid voluntarily, the Government explains. It also points out that the Secretary of State for Labour adopted a decision on 28 February 1984, the text of which the Government annexes to its communication, on the action of the labour inspectorate in this connection. According to this text the Government, through its labour inspectors, reminds any undertakings which unilaterally cease to collect the trade union dues of their workers on the grounds that they have computerised their management, that they are acting unlawfully. The text states: "accordingly, the general labour inspectorate must make a report of any offences it has noted, in accordance with section 5 of Act No. 55/77".
10. 57. In addition, in its reply of 15 February 1985, the Government states that Conventions Nos. 87, 98 and 135 have been ratified by Portugal and that they are applied either by law and practice or by the adoption of measures to sanction and apply these standards. It refers to the information contained in the reports sent to the ILO under article 22 of the ILO Constitution on the application of the Conventions concerned.
11. 58. The Government also observes that the complainant organisation has not mentioned the Articles of the Conventions that are said to have been violated and, above all, that it has not referred to the concrete facts that might be regarded as violations of these Conventions. However, the Government, although contesting the figures provided by the CGTP-IN, acknowledges that there has been a delay in the payment of wages due in many undertakings. According to it, this delay is due to the unfavourable economic situation, and it cites figures of the debts paid by the undertakings in respect of the workers' wages, social security and the unemployment fund. It does not, however, supply any figures on any debts that it might have with regard to the trade unions.
12. C. The Committee's conclusions
13. 59. The present case concerns an allegation that employers are unlawfully retaining the trade union dues of their workers by not paying them the wages that are due to them, whereas under Portuguese legislation they are under the obligation to deduct the dues from the wages and remit them to the trade unions concerned.
14. 60. The Committee has examined Act No. 57/77 of 5 August 1977 on the collection of trade union dues. This Act provides for freedom to choose a method of collecting trade union dues, and, in the event that a worker agrees to the method of deducting dues from his wages, the protection of the worker concerned. The Committee of Experts on the Application of Conventions and Recommendations, which examined this text when Portugal ratified Convention No. 87, considered that the provisions of Act No. 57/77 were in conformity with the Convention. Moreover, the Committee observes that the Government, by its decision of 28 February 1984, made it clear to any undertakings which unilaterally ceased to collect the trade union dues of their employees on the pretext that they had computerised their management, that they were acting unlawfully, and that the general inspectorate of labour must make a report of any offences noted when a worker has requested the deduction of his dues and this has not been done.
15. 61. The Committee also observes that, although the complainant confederation has provided copious documentation on the undertakings which are in arrears with the payment of their employees' wages, it has not designated the public- or private-sector undertakings which have allegedly not paid the unions concerned the trade union dues which they allegedly deducted from workers' wages, or which have allegedly delayed in paying them.
16. 62. The Committee has nevertheless taken note of the report of the committee set up to examine the representation of the CGTP-IN on the failure by Portugal to implement various Conventions, in particular the protection of Wages Convention, 1949 (No. 95). The Committee observes that this committee, in paragraph 40 of this report, remarks that "the Committee, though it notes the measures taken or envisaged by the Government to assess and remedy the situation, is bound to conclude that the Government has not secured the effective observance of the relevant provisions of the Convention".
17. 63. Consequently, the Committee, although it is lacking precise information on this matter, nevertheless regrets that the delay in the payment of workers' wages may in its turn have caused delays in remitting the workers' trade union dues to the unions to which they belong. The Committee recognises that the Government, by its decision of 28 February 1984, has reminded undertakings of their obligations to collect trade union dues, but nevertheless considers that the Government should strengthen the supervision exercised by the labour inspectorate so as to ensure that, when a worker has chosen to request the direct deduction of his trade union dues from his wage for payment to a trade union which he has designated, these dues should in effect be paid to the union concerned. The Committee requests the Government, in the light of its acknowledgement that there have been delays in the payment of wages and other benefits and contributions in several undertakings, to keep it informed of the measures taken by the authorities to strengthen this supervision.
18. The Committee's recommendations
19. 64. In these circumstances, the Committee recommends the Governing Body to approve this report, and in particular the following conclusions:
20. (a) The Committee considers that the Government should strengthen the supervision exercised by the labour inspectorate so as to ensure that, when a worker has chosen to request the direct deduction of his trade union dues from his wage for payment to a union which he has designated, these dues should in effect be paid to the union concerned.
21. (b) The Committee therefore requests the Government, in the light of its acknowledgement that there have been delays in the payment of wages and other benefits and contributions in several undertakings, to keep it informed of the measures taken by the authorities to strengthen this supervision.