Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Termination of Employment Convention, 1982 (No. 158) - Portugal (Ratification: 1995)

Other comments on C158

Observation

Direct Request

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The Committee notes the observations of the General Confederation of Portuguese Workers–National Trade Unions (CGTP–IN) and the General Workers’ Union (UGT), forwarded by the Government. The Committee requests the Government to provide its comments in this regard.

Legislative developments. In reply to the Committee’s comments, the Government indicates that certain minor legislative developments relating to termination of the employment relationship in the public service were made during the reporting period. The Government indicates that the termination of the employment relationship of workers in the public sector is now governed by sections 288–313 of the General Public Service Labour Act (Act No. 35/2014), which entered into force on 1 August 2014. However, the Government indicates that this legislative change did not give rise to any substantive reform. The Government emphasizes that section 11(1) of Act No. 35/2014, which determines the transitional regime, provides that the disciplinary provisions are immediately applicable to acts committed, proceedings initiated and penalties that are being served if, at the date of entry into force, that regime is more favourable to the worker and offers better guarantees to protect the worker’s rights to defence and a hearing. The Committee requests the Government to continue providing information to enable it to assess the impact of the legislative reforms in respect of the maintenance of employment.

Article 2(3) of the Convention. Adequate safeguards in the event of recourse to contracts of employment for a specified period. In its previous comments, the Committee requested the Government to provide information on the protection afforded to workers with contracts for a specified period, and to indicate the number of workers affected by these measures. In its report, the Government refers to the papers produced by the Strategy and Planning Office of the Ministry of Labour, Solidarity and Security. In this regard, the Committee notes that the document entitled “Green Paper 2017” contains statistics on contracts for a specified period, according to which it is estimated that in 2015 a total of 62.9 per cent of unemployment insurance benefits (111,682 workers) were provided as a result of the expiry of the contract period. The Committee also notes the information contained in that paper that the unemployment benefits provided to persons with contracts for a specified period are increasing, as in 2009 they accounted for 46.2 per cent of total unemployment benefits, compared with 62.9 per cent in 2015. The Committee once again requests the Government to provide information on the manner in which the protection afforded by the Convention is ensured to workers who have concluded an employment contract for a specified period, with a view to preventing abusive recourse to such contracts, including the relevant court rulings. It also requests the Government to continue providing information, including data on the total number of contracts for a specified period of time in comparison with contracts for an indefinite period.

Article 2(5). Micro-enterprises. The Committee notes that the Government’s report does not contain any information on this subject. The Committee once again requests the Government to provide information on the application of the Convention to micro-enterprises.

Article 4. Justification for termination. The Committee previously requested the Government to provide examples of the application of the legislative amendments of 2014 regarding the valid reason for termination of employment on the grounds of the reduction of jobs or dismissals for unsuitability. The CGTP–IN and the UGT reiterate that, by placing criteria of performance, qualifications and labour costs above the criteria of seniority and experience, Act No. 27/2014 does not ensure objectivity and allows an arbitrary choice of workers by the employer, as the choice may be made for the benefit of the enterprise. They add that these criteria do not safeguard employment security, the prohibition of dismissal except with a valid reason, the principle of equality and non-discrimination, as workers with greater seniority are affected by this provision. The Committee notes that, according to the statistics contained in the “Green Paper of 2017”, dismissal by a reason of the suppression of jobs and dismissal for unsuitability have decreased, as in 2015 they accounted for 8.7 and 0.3 per cent respectively of unemployment insurance benefits. The Committee also notes the court rulings provided by the Government relating to termination of employment on grounds of the suppression of the job. Nevertheless, it observes that these court decisions do not illustrate the legislative changes introduced by Act No. 27/2014. The Committee requests the Government to provide copies of court rulings with its next report which illustrate the application by the courts of the criteria set out in Act No. 27/2014.

Article 8. Right of appeal. The Committee notes that the Government has not provided information in its report on the legislative provisions governing claims for unjustified dismissal, or on the role of mediation and arbitration. The Committee notes that court decisions relating to dismissal and collective dismissal are regulated by sections 387 and 388 of the Labour Code. It also notes that the Labour Code envisages mediation and arbitration solely in collective labour disputes arising out of the conclusion of a collective agreement (section 526 et seq. of the Labour Code). The Committee further notes the statistics contained in the “Green Paper” on the cases of dismissal determined by courts of first instance. In this respect, it notes that in 2015 a total of 5,529 appeals against dismissal were resolved by courts of first instance, and that in 2013 the average period for their settlement through ordinary procedures was 16 months. The Committee requests the Government to provide information on the application of the legislative provisions respecting appeals against unjustified dismissal. It also requests the Government to indicate whether alternative means of dispute resolution are available for workers who have been dismissed.

Article 10. Adequate compensation for unjustified dismissal. The Committee notes that section 389(2) of the Labour Code provides that, when the court finds that dismissal is unjustified, but that the irregularity is strictly procedural, the worker shall receive half of the compensation envisaged by the law. The Committee requests the Government to provide court rulings which illustrate the application in practice of section 389(2) of the Labour Code.

Article 12. Severance allowance and other income protection measures. The CGTP–IN reiterates that compensation for the termination of the employment contract has been drastically reduced and that, in the current economic situation characterized by a high unemployment rate and the reduction in the amount and duration of unemployment benefit, this reduction is in violation of the right of workers to a decent life. In this regard, the Committee notes that section 366(1), as amended by Act No. 69/2013, which is applicable to almost all cases of termination of employment which give entitlement to compensation, sets the severance allowance at 12 days’ basic wages and benefits for each full year of seniority. The Committee also notes that, in the case of employment contracts for an indefinite period, workers are entitled to compensation during the first three years equivalent to 18 days of their basic wage and benefits for each full year of seniority, and 12 days of their basic wage and benefits for subsequent years. The Committee requests the Government to provide information on the implementation of this provision in practice, including on the impact of the change in severance payments for the workers concerned, and to provide statistical data, disaggregated by age and sex, concerning workers affected by this measure.