Definitive Report - Report No 239, June 1985

1. 56. The complaint of the National Federation of Public Employees' Trade Unions is contained in a communication of 7 November 1984. Subsequently, the complainant organisation supplied further information in a cable dated 29 November 1984 and documents in support of its complaint on 3 December 1984. The Government replied in a letter dated 26 April 1985.
2. 57. Portugal has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087), the Right to Organise and Collective Bargaining Convention, 1949 (No.098) and the Labour Relations (Public Service) Convention, 1978 (No.151) .

A. Allegation of the complainant federation

1. 58. The National Federation of Public Employees' Trade Unions alleges the infringement of trade union rights in Portugal in connection with the bargaining procedure for the review of public service wages for the year 1985.
2. 59. According to the Federation, the following irregularities have been committed by the Government: after the bargaining procedure had commenced on 28 September 1984 and it had been mutually agreed that the second meeting would take place on 11 October, the Government was not represented at that meeting by the persons who, in accordance with the law, are qualified to undertake the negotiations; it thus infringed the provisions of section 3 of Legislative Decree No. 45-A/84 of 3 February 1984. Consequently, the date of the subsequent meeting was not determined at the second meeting and the programme that had previously been established and the deadlines for the bargaining procedure could not be respected.
3. 60. The complainant Federation refers to a letter of 23 October from the State Secretariat for Public Administration, stating that the bargaining procedure was not considered to be suspended and would be resumed as soon as the Secretary of State for Public Administration and other government members had received more specific instructions to be elaborated in the Council of Ministers concerning the budgetary policy to be applied; the Federation maintains that this letter served only to disguise the obvious illegality of the Government's behaviour towards bargaining. The Government is thus said to have infringed section 3(1) of the above-mentioned Legislative Decree No. 45-A/84. The Federation concludes that the Government broke off the negotiations unilaterally and without justification, adopting in their respect an attitude which amounted - in practice - to denying the trade unions of public employees' their right to bargain.
4. 61. The complainant subsequently added that, despite repeated efforts on its part to get the Government to resume bargaining, the Government refused to do so and, on 28 November 1984, nearly 20,000 workers in the public service demonstrated in the streets of Lisbon for the negotiations to be resumed.
5. 62. However, according to the complainant, Portuguese legislation on the right to bargain in the public service provides no means of obliging the Government to resume bargaining. In this connection the Federation recalls that it had strongly criticised the Bill on the right to bargain of public employees and encloses a document which it published on 7 October 1983 in which it set out its grievances in respect of the Bill.
6. 63. According to this document, the Bill in question constituted an attack on the unalienable right of public employees to bargain collectively since the term "collective bargaining" used therein actually referred only to the "consultation of trade unions" on the determination by legislative means, of conditions of work in the public service. According to the document from the complainant, section 5(2) of the Bill provided that collective bargaining consisted in the appraisal and discussion, by trade union associations and the administration, of questions relating to conditions of work in order to resolve them by mutual agreement and section 5(3) accorded the agreement resulting from the said appraisal and discussion merely the character of recommendations without any executory force or legal effect.
7. 64. Consequently, according to the complainant Federation, the "participation" referred to in the Bill was confined to recognising the right of trade union associations to issue reports on the elaboration or modification of laws and regulations applicable to the general or special system governing the public service, and the Bill contained no machinery for resolving disputes.

B. The Government's reply

1. 65. In its reply of 26 April 1985, the Government observes that the complainant Federation bases its complaint first of all on the lack of representativity of the government members who attended the meeting on 11 October 1984, considering that the nature of the proceedings was thereby irremediably altered, which jeopardised the exercise of the right to bargain of the unions of public employees.
2. 66. The Government maintains that this statement does not correspond to the truth since the Head of Cabinet of the Secretary of State for Public Administration, the Directors-General of Administration and the Public Service and of the department which assists public employees in the event of sickness as well as other directors and officials belonging to these departments attended the meeting on 11 October and represented the Government.
3. 67. The Government explains that the Secretary of State for Public Administration, acting on the authority of the Minister of State and in accordance with the Act respecting the organisation of the Government (see Legislative Decree No. 344-A/83), is responsible for co-ordinating activities connected with the reform of the public administration and that this Secretary of State is represented by his Head of Cabinet in matters not strictly relating to personnel questions (see Legislative Decree No. 267/77). Moreover, the Government adds, the functions of the General Directorate of Administration and the Public Service of the Secretariat of State for Public Administration include promoting the improvement and modernisation of the public administration and taking part in defining the strategies and policies of administrative reform (see Decree No. 80/82). The General Directorate in question, as a body for co-ordination and technical assistance, is entrusted with ensuring the establishment of relations with trade union associations of workers in the public administration and of organising the procedure for collective bargaining and participation in the drafting of legislation concerning the general or special system governing the public service.
4. 68. Furthermore, the Government continues, the Minister of Finance and Planning was represented, in negotiations with the General Directorate of Administration and the Public Service by the Director-General of the department for assistance to public employees in the event of sickness, in view of the nature and scope of the matters under discussion with this general directorate.
5. 69. The Government therefore considers that there have been no irregularities as regards its representation at the meeting of 11 October, in view of the presence at this meeting of the legal representatives of the Secretary of State for the Public Administration, the Director-General of the department for assistance to public employees in the event of sickness (representing the Ministry of Finance and Planning), and of the Director-General of Administration and the Public Service.
6. 70. As regards the complainant's allegation that the bargaining procedure was suspended by the Government, which would be contrary to section 3(2) of Legislative Decree No. 45-A/84, mentioned above, and paragraph 1 of the same section, the Government considers that this allegation also is unfounded.
7. 71. According to the Government, in actual fact there was no interruption nr even suspension of the bargaining procedure but merely a postponement of the original deadlines as a result of an unexpected delay in the discussions on the general budget of the State, on the adoption of which the new public service salaries necessarily depended. Moreover, as it had been agreed from the beginning, the bargaining meetings related mainly to the review of salaries, career questions taking second place. The Government explains that it is this point that was clarified in the letter of 23 October mentioned above.
8. 72. Moreover, the Government states that once the budgetary policy for 1985 had been defined by the Council of Ministers, the meetings on remuneration resumed immediately on 11 January 1985 and the fact that the trade union bargaining committee attended these meetings shows the absurdity of the complaint lodged in the meantime. It should also be pointed out that the said trade union bargaining committee, at the meeting of 11 October to which it subsequently objected, discussed the Government's proposal and even put forward counterproposals which were to be submitted for appraisal at a later stage since the committee agreed that the date of the next meeting would be fixed by telephone.
9. 73. The Government concludes by stating that it was therefore lawfully and adequately represented at the meeting of 11 October, that the extension of the deadlines originally set was justified and could not be considered as an infringement of the principles of section 3 of Legislative Decree No. 45-A/84 mentioned above, or of those of the Labour Relations (Public Service) Convention, 1978 (No. 151). The Government considers that the National Federation of Public Service Trade Unions is not justified in approaching the Committee on Freedom of Association and that Portuguese law and practice comply with the standards of this international Convention.

C. The Committee's conclusions

1. 74. The Committee observes that the complaint presented by the National Federation of Public Employees' Trade Unions consists essentially in criticism of Legislative Decree No. 45-A/84 of 3 February 1984, governing the right to bargain of workers in the public administration, which, according to the complainant, fails to establish any machinery for resolving disputes in the public service. The complaint also involves allegations of irregularities in the bargaining procedure for the review of public service salaries for the year 1985 and of the unilateral suspension of negotiations by the Government.
2. 75. The Committee observes that the National Federation of Public Employees' Trade Unions, which is affiliated to the General Confederation of Portuguese Workers (CGTP-IN), already lodged a complaint on the subject of collective bargaining in the public service in 1981 (Case No. 1042, examined by the Committee on Freedom of Association in its 214th Report, paragraphs 301-331, approved by the Governing Body at its 219th Session in February-March 1982).
3. 76. At the time, the Government had already ratified Convention No. 151 but had not yet adopted Legislative Decree No. 45-A/84 of 3 February 1984 governing the right to bargain of workers in the public administration.
4. 77. In the opinion of the Committee of Experts on the Application of Conventions and Recommendations, this Legislative Decree complies with the requirements of Convention No. 151 since section 8 of this legislation, which deals with the resolving of disputes, provides in its first subsection that "the resolving of disputes that arise during the bargaining procedure may be undertaken at the request of the trade union organisations by further negotiations". The second subsection of the same section provides that the opening of further negotiations requires the approval of the Government and must take place within 20 days and aim at securing an agreement. The third subsection provides that the consensus reached in the further negotiations will assume the character of a recommendation.
5. 78. The Committee recalls that Article 8 of Convention No. 151 reads as follows: The settlement of disputes arising in connection with the determination of terms and conditions of employment shall be sought, as may be appropriate to national conditions, through negotiation between the parties or through independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved. The Committee cannot but endorse the opinion of the Committee of Experts and considers that the procedure chosen in Portuguese law to resolve disputes, namely further negotiations, complies with the terms of the Convention which were correctly applied by the Government in the present case.
6. 79. As regards the allegations of irregularities in the bargaining procedure in that the Government is said to have been represented by persons who, by law, were not qualified to undertake negotiations, the Committee has noted the detailed explanations furnished by the Government and in particular the fact that it was lawfully and adequately represented at the meeting on 11 October 1984 by the Head of Cabinet of the Secretary of State for Public Administration, by the Director-General of the department for assistance to public employees in the event of sickness and by the Director-General of Administration and the Public Service. The Committee considers that in view of these explanations, this aspect of the case does not call for further examination.
7. 80. As regards the allegation that the bargaining procedure was unilaterally suspended by the Government, the Committee has also noted the Government's explanations and in particular the fact that there was simply a postponement of the original deadlines as a result of an unexpected delay in the discussions on the general budget of the State, on the adoption of which the determination of new public service salaries depended. The Committee has also noted that the meetings on salaries resumed with the trade union bargaining committee as from 11 January 1985 and that four meetings took place, which the complainant federation has not denied. The Committee considers that, in these circumstances, this aspect of the case does not call for further examination.