Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided by the Government in its report and the adoption of many decrees and laws. It also notes the observations made by the General Confederation of Portuguese Workers (CGTP-IN) concerning the non-conformity of national legislation with the provisions of the Convention.

Article 2, paragraphs 1 and 2, of the Convention.  The Committee notes that section 33 of Legislative Decree No. 409 of 1971, on which it has been commenting for many years, was amended by Act No. 58 of 30 June 1999. Under the terms of the new section 33(1), night work by persons under 16 years of age is prohibited and collective agreements may not reduce the period of night work specified by the law. The Committee notes the information provided by the Government to the effect that the new section 33 no longer allows young persons of 16 or 17 years of age to work at night in industrial enterprises for their vocational training, which was permitted under the former section 33(1) of Legislative Decree No. 409 of 1971.

However, the Committee recalls that, under the terms of Article 2, paragraph 1, of the Convention, it is prohibited to employ young persons under 18 years of age during the night in industrial undertakings, other than those in which only members of the same family are employed and in the cases enumerated in Article 2, paragraph 2. The Committee requests the Government to indicate the measures which have been taken or are envisaged to bring the legislation into conformity with the Convention on this point.

Section 33(3) of Act No. 58 of 30 June 1999 provides that young persons of 16 years of age and over may be authorized to work at night in specific sectors by collective agreement, except between midnight and 5 o’clock in the morning. The Committee recalls that Article 2, paragraph 2, of the Convention allows the employment of young persons over 16 years of age on work which, by reason of the nature of the processes, is required to be carried on continuously day and night in the industries referred to in the Article. While noting the information provided by the Government to the effect that, in general, collective agreements do not make use of this exception, the Committee requests the Government to indicate the sectors in which collective agreements may allow the night work of young persons of 16 years of age and over. It also requests the Government to provide copies of the above collective agreements.

Article 3, paragraph 1.  The Committee notes that section 29 of Legislative Decree No. 409 of 1971, on which it has been commenting for many years, was amended by Legislative Decree No. 96/99 of 23 March 1999. Under the terms of the new section 29, night work signifies work performed for a period of at least seven hours and a maximum of 11 hours, including the interval between midnight and 5 o’clock in the morning. Collective agreements establish the duration of night work, in accordance with this provision and, irrespective of whatever may be set out in collective agreements, night work is the period between 8 o’clock in the evening and 7 o’clock in the morning. The Committee notes the information provided by the Government, according to which the amendments to sections 29 and 33 of Legislative Decree No. 409 of 1971 do not modify the points raised by the Committee.

The Committee also notes that, by virtue of section 33(2) of Act No. 58 of 30 June 1999, young persons of 16 years of age may not work at night between 10 o’clock in the evening and 6 o’clock in the morning, or between 11 o’clock in the evening and 7 o’clock in the morning, without prejudice to the provisions of subsections (3) and (4). In this respect, section 33(3) provides that collective agreements may authorize young persons of 16 years of age and above to work at night in specific sectors, except between midnight and 5 o’clock in the morning.

In its comments, the CGTP-IN considers that section 33(2) of Legislative Decree No. 409/71 of 27 September 1971, as amended by Act No. 58 of 30 June 1999, is not in conformity with the definition of night work set out in Convention No. 6. In this respect, the Committee notes the Government’s reply to the effect that the national legislation is indeed not in conformity with the Convention. However, the Government indicates that, while admitting that the provisions of the Convention may have been justified at the time of its adoption, they no longer reflect the real situation in the world of work. According to the Government, developments in the organization of work have resulted in greater protection for health and safety, particularly for young workers. The Committee also notes the Government’s comments concerning the decision taken by the Governing Body to revise Conventions Nos. 6, 79 and 90.

However, the Committee recalls that, by virtue of Article 3, paragraph 1, the term "night" signifies a period of at least 11 consecutive hours, including the interval between 10 o’clock in the evening and 5 o’clock in the morning. The Committee also notes that the amendments made by Act No. 98/99 to Legislative Decree No. 409/71 do not bring the national legislation into conformity with the Convention. The Committee therefore once again requests the Government to take the necessary measures to bring its legislation into conformity with the Convention on this point.

In its previous comments, the Committee had noted that Legislative Decree No. 396/91 of 16 October 1991, respecting work by young persons, and Ministerial Orders Nos. 714/93 and 715/93 of 3 August 1993, relating respectively to the definition of light work and activities which are prohibited for young persons, do not bring the legislation into conformity with the Convention on the two points raised previously. It once again requests the Government to take the necessary measures to bring the legislation into conformity with the Convention.