Informe definitivo - Informe núm. 297, Marzo 1995

1. 37. The National Union of Post and Telecommunications Employees (SNTCT) presented a complaint of violations of trade union rights against the Government of Portugal in a communication dated 28 March 1994. The Government furnished its observations on this case in a communication dated 7 October 1994.
2. 38. Portugal has ratified the Freedom of Association and Protection of Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98) as well as the Labour Relations (Public Service) Convention, 1978 (No. 151). However, it has not ratified the Collective Bargaining Convention, 1981 (No. 154).

A. The allegations of the complainant trade union

1. 39. In its communication of 28 March 1994, the National Union of Post and Telecommunications Employees (SNTCT), with headquarters in Almeda, maintains that the Government of Portugal violated the Right to Organize and Collective Bargaining Convention, 1949 (No. 98) and the Collective Bargaining Convention, 1981 (No. 154), as well as the Collective Agreements Recommendation, 1951 (No. 91). The complainant trade union explains that it as well as other trade union organizations and the public enterprise, named the Post and Telecommunications Enterprise of Portugal (CTT, EP), had concluded in 1990 an enterprise agreement and that this agreement was revised in 1991 and 1992. The complainant organization adds that under the provisions of Legislative Decree No. 87/92 of 14 March 1992 the CTT, EP enterprise was transformed into a limited company with exclusively public capital and that it was henceforth called the Telecommunications Enterprise of Portugal SA (CTT, SA). Subsequently, under the provisions of Legislative Decree No. 277/92 of 15 December 1992, the CTT, SA enterprise was split up and the enterprise TELECOM Portugal SA was established.
2. 40. According to the complainant organization, subsections 1 and 2 of section 9 of Legislative Decree No. 87/92 guarantees the maintenance of the acquired rights of workers in the CTT, EP. In the same way, the complainant organization adds that under subsections 1 and 2 of section 3 of Legislative Decree No. 277/92, telecommunications workers in TELECOM Portugal SA retain all the rights they had acquired in CTT, EP. Thus for the complainant organization, there is no doubt that the CTT, EP enterprise agreement, which furthermore was revised after the initiation of the privatization process, continues to be binding on the TELECOM Portugal SA enterprise.
3. 41. The complainant organization criticizes the fact that, despite the above-mentioned acquired rights, the administrative council of the TELECOM Portugal SA enterprise abusively imposed on its workers another enterprise agreement negotiated with minority trade unions which represent 522 members. It includes in the appendix to its complaint the text of the new agreement which was published in the Labour and Employment Bulletin No. 38 of 15 October 1993. This is an enterprise agreement signed on 10 September 1993 between the TELECOM Portugal SA enterprise and the Democratic Trade Union of Post and Telecommunications Workers (SINDETELCO), as well as the Communications Trade Union of Portugal (SICOMP), the National Federation of Transport, Communications and Public Transport (FENTCOP), the Trade Union of Economists (SEC) and the National Confederation of Executive Staff Trade Unions (FENSIQ). The 1993 agreement furnished by the complainants stipulates in article 2(2) that it shall remain in force for 12 months and, in article 1(1), that it is binding on the TELECOM Portugal SA enterprise on the one hand and on the workers in its service represented by the signatory trade union organizations on the other, irrespective of the place in which they may be.
4. 42. The complainant organization claims that it and the Telecommunications Trade Union (SINTEL) which, it says, represents 7,368 workers, did not reach an agreement with the TELECOM Portugal SA enterprise. It therefore believes that the agreement signed by the two minority trade union organizations is a serious violation of workers' individual and collective rights.
5. 43. In the opinion of the complainant organization, the conduct of the administrative council of the TELECOM Portugal SA enterprise, whose members are appointed by the Government of Portugal, is an infringement of Convention No. 98. It believes that the unilateral imposition of a labour collective regulatory instrument negotiated with clearly minority trade unions, against the wishes of the representative trade unions, is contrary to the provisions of Recommendation No. 91 and Convention No. 154 as well as article 56(3) of the Portuguese Constitution which establishes the right to collective bargaining. Furthermore, this imposition is contrary to the enterprise agreement negotiated by the complainant organization which has not been denounced and which is still in force. Finally, according the complainant organization, the responsibility of the Portuguese Government is compounded by the lack of action by the labour inspectorate.

B. The Government's reply

1. 44. The Government agrees that the public Post and Telecommunications Enterprise of Portugal (CTT, EP) had concluded an enterprise agreement with the complainant organization and other trade union organizations an enterprise agreement in 1990, that this public enterprise and the said trade union as well as other trade union organizations had undertaken a review of the said enterprise agreement in 1991 and that the review of the enterprise agreement of 1992 was signed by the CTT, SA, the successor of the CTT, EP. Subsequently, following the dismantling of the CTT, SA, TELECOM Portugal SA was established.
2. 45. The enterprise agreement which applied in the CTT, SA continued to be applied in TELECOM Portugal SA in application of section 9 of Legislative Decree No. 519-C1/79 of 29 December 1979 to regulate labour relations. The Government explains that this section 9 was amended by Legislative Decree No. 209/92 of 2 October 1992 just before the establishment of TELECOM Portugal SA and that it now stipulates that "in the event of the total or partial transfer of an enterprise or an establishment, the assignee shall be required to respect up until the end of its validity and at least for 12 months after the date of the transfer the collective regulatory instrument which is binding on the assignor, unless it has been substituted by another agreement".
3. 46. The Government goes on to explain that the TELECOM Portugal SA enterprise and the SNTCT respectively presented proposals for the negotiation of a new enterprise agreement in August 1993. It adds that negotiations were held but that no agreement was reached. According to the Government, neither the enterprise nor the complainant organization requested the intervention of the respective public authorities to attempt conciliation. Meanwhile, however, the TELECOM Portugal SA enterprise reached a new agreement with five trade union organizations.
4. 47. The Government believes that the previous agreement was no longer in force and that in 1993 a new valid agreement had been concluded between the employer and five trade union organizations. However, it adds that a warning notice was issued by the general labour inspectorate to the employer, who then lodged an appeal with the courts. In this way the inspectorate admitted the argument of the complainant organization concerning the continuation of the obligations of the enterprise under the terms of the previous agreement. The reasons invoked by the Government in questioning this legal argument do not of course prevent the general labour inspectorate from acting autonomously. Under national law the matter is a complex one which will have to be settled by the courts.
5. 48. The Government also explains that the complainant organization does not deny actually having taken part in the negotiations with the TELECOM Portugal SA enterprise in 1993, but that in this case it decided not to sign the enterprise agreement.
6. 49. The Government also points out that the complainant trade union does not say in what way the TELECOM Portugal SA enterprise is supposed to have "abusively imposed on its workers" an enterprise agreement which it signed with other trade union organizations. Furthermore, the information obtained by the Government from the enterprise and the general labour inspectorate does not in its view shed any light on the matter. According to the Government, it does not seem that the workers represented by the complainant organization suffered any reduction in their wages. The complainant organization itself does not state in the complaint that this "imposition" of the agreement resulted in any reduction of wages or other benefits. The Government goes on to say that if by any chance there had been reductions of wages or other benefits, sanctions would probably have been ordered by the courts against the enterprise following the warning notice issued by the general labour inspectorate. On the contrary, the Government says that the enterprise has actually increased the remuneration of workers, including those represented by the complainant organization, and it would be difficult to condemn such an action.
7. 50. In conclusion, the Government believes that the TELECOM Portugal SA enterprise has not violated the provisions of Convention No. 98. The complainant trade union has not produced any evidence of its allegations since it has not indicated which aspect of the enterprise's conduct can be criticized as contrary to the Convention. Nothing in the complaint indicates any restriction on the activities of the trade union organization of workers of the TELECOM Portugal SA enterprise, and in particular the complainant organization. Convention No. 98 does not make it an obligation for collective agreements signed by an enterprise to apply successively and for an unlimited period of time to successor enterprises. Furthermore, the process of the voluntary negotiation of collective agreements is recognized and promoted by Portuguese law. The complainant trade union enjoys the legal constitutional right to collective bargaining with employers and employers' organizations employing the workers whom it represents. In this case, the enterprise held negotiations on the basis of proposals made by both the enterprise and the complainant organization. These negotiations were free and it was certainly in full freedom that the complainant trade union did not accept the proposals of the enterprise. The public authorities responsible for promoting conciliation during these negotiations were, as in all negotiations, available to the parties at their request; however, their assistance was not sought.
8. 51. According to the Government, neither was there any violation of the provisions of the Collective Agreements Recommendation, 1951 (No. 91). According to information obtained by the Government, the enterprise appears to have increased the remuneration and other payments made to workers, including those who were represented by the complainant organization, with proposed modifications of their employment contracts which were accepted by the workers. Even if there had been a collective agreement in force for workers represented by the complainant organization, this procedure is expressly endorsed by Recommendation No. 91 which states that "stipulations in contracts of employment which are more favourable to the workers than those prescribed by a collective agreement should not be regarded as contrary to the collective agreement".
9. 52. Finally, the Government states that it is not correct to say that the enterprise agreement concluded between the complainant organization and the CTT, EP and subsequently applicable to the TELECOM Portugal SA enterprise, was in force. The Government does not understand what practice was, according to the complainant organization, contrary to the provision of the Portuguese Constitution. The procedure of increasing the wages and other payments to the workers, including those represented by the complainant organization, after proposed modifications to their employment contracts which were accepted by the workers, is certainly not contrary to any constitutional rule and even less to ILO standards.

C. The Committee's conclusionss

1. 53. The Committee notes that this case concerns a complaint by the National Union of Post and Telecommunications Employees (SNTCT) alleging infringement of an enterprise agreement by a Portuguese telecommunications enterprise, TELECOM Portugal SA, which succeeded the CTT, EP enterprise which had signed the agreement. According to the complainant organization, the enterprise agreement which it and other trade union organizations had concluded in 1990 with the CTT, EP, and which was revised in 1991 and 1992, was discarded through the "abusive imposition" by TELECOM Portugal SA of a new enterprise agreement negotiated with minority trade unions in 1993.
2. 54. The Government maintains that the previous enterprise agreement of 1990, as revised in 1991 and 1992, had expired and that the complainant organization, which furthermore agreed to enter into negotiations with the new employer in August 1993, refused to sign the new enterprise agreement. The Government adds that in the meantime a new agreement was signed between the TELECOM Portugal SA enterprise and five other trade union organizations, which was published on 15 October 1993. According to the Government, the new enterprise agreement grants wage increases to the workers, including the members of the organizations which had signed the first agreement. The Government admits however that the general labour inspectorate issued a warning notice to the TELECOM Portugal SA enterprise for having ceased to apply the previous enterprise agreement to its workers. The Government states that the employer, to which the warning notice was issued, lodged an appeal with the courts.
3. 55. The Committee notes that the agreement immediately preceding the agreement currently in force was registered on 7 October 1992 and published in the Official Gazette No. 39 of 22 October 1992. This agreement stipulates, in article 3(1) that it may not be denounced for ten months after the date of its registration, i.e. before 7 August 1993. The Committee also notes that the complainant admits that it did not reach an agreement with the TELECOM Portugal SA enterprise.
4. 56. The Committee notes that the new agreement was signed between TELECOM Portugal SA and five other organizations on 14 September 1993. Noting that this agreement was signed after the date on which the previous enterprise agreement could have been denounced, the Committee believes that there has been no infringement in this case of a collective agreement in force. Consequently, the Committee believes that this case calls for no further examination.