Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the adoption of the Labour Code, Act No. 99/2003, Act No. 35/2004 to regulate the Labour Code and Legislative Decree No. 326‑B/2007 on the Authority for Conditions of Work (ACT).

Article 2 of the Convention. Exceeding the normal hours of work. The Committee draws attention to sections 164 and 165 of the Labour Code which allow hours of work to be variable. Section 164(1) provides that by means of a collective agreement the normal period of work may be defined as an average, in which case the working day may be extended by wa maximum of four hours provided that the working week may not exceed 60 hours (or 50 hours over a period of two months), excluding any overtime worked for reasons of force majeure. In addition, section 165 provides that by agreement between the employer and the workers, the normal working day may be exceeded by up to two hours provided that the length of the working week may not exceed 50 hours, excluding any overtime worked for reasons of force majeure. The Committee recalls that the Convention allows exceptions to the maximum of eight hours a day and 48 hours a week in very limited and clearly defined circumstances, namely: (i) distribution of hours of work over the week (Article 2(b)); (ii) averaging of hours of work over a period of three weeks in case of shift work (Article 2(c)); (iii) processes required to be continuous, subject to a maximum of 56 hours a week (Article 4); (iv) averaging of daily hours of work in exceptional cases (Article 5); (v) permanent exceptions (preparatory, complementary or intermittent work) and temporary exceptions (exceptional pressure of work) (Article 6). Observing that the limits of daily and weekly hours of work provided for in sections 164 and 165 are not consistent with the standards set out in the Convention, the Committee requests the Government to explain in detail the flexibility scheme established in sections 164 and 165 of the Labour Code.

The Committee further notes that section 6 of Legislative Decree No. 237/2007 of 19 June 2007 on mobile workers in the road transport sector establishes that the weekly hours of work, including overtime, may not exceed 60 hours. Noting that section 177 of the Labour Code provides for special schemes, the Committee recalls that road transport falls within the scope of the Convention and that, consequently, both the basic standard of eight hours per day and 48 hours per week and any permissible exceptions must cover the workers in this sector. The Committee requests the Government to explain this point in detail.

Article 5. Calculating hours of work as an average. The Committee notes that sections 166 and 169 of the Labour Code provide that averaging of hours of work must be established on the basis of a reference period, which is set in the applicable collective labour agreements and may not exceed 12 months, or, in the absence of such provision, on the basis of periods of up to four months. The Committee points out that this Article of the Convention allows hours of work to be averaged only in exceptional cases where it is recognized that the limit of eight hours per day and 48 hours per week cannot be applied, and only by collective agreement given the force of regulations. The Committee accordingly requests the Government to indicate the measures taken or envisaged to bring the legislation into line with the requirements of the Convention on this point.

Article 6. Permanent and temporary exceptions. The Committee notes that section 177(1) of the Labour Code provides that by written agreement, persons engaged in preparatory or complementary work which, because of its nature, can be carried on only outside normal working hours, may be excluded from work schedules. Section 177(2) adds that provision may be made for other circumstances by collective agreement. The Committee draws the Government’s attention to the fact that the Convention requires regulations to be made, after consultation, to determine permanent and temporary exceptions by industry or by occupation. The Committee therefore asks the Government to indicate the measures taken or envisaged in order to give full effect to this Article of the Convention.

Article 7. List of exceptions. The Committee notes the list of the establishments which are authorized to carry out continuous processes or to exceed the limits on hours of work established by law. The Committee would be grateful if the Government would provide further information on work which is deemed to require a process to be carried on continuously within the meaning of Article 4 of the Convention, the recourse had to the agreements provided for in Article 5, and the regulations made pursuant to Article 6 and their application.

Part VI of the report form. Practical application. The Committee notes the statistical information provided by the Authority for Conditions of Work showing infringements reported by the labour inspectorate during the period 2003–07. It also notes the comments of the General Workers’ Union (UGT) on developments in working time in Portugal. The Committee requests the Government to continue to provide general information on the manner in which the Convention is applied, including extracts of reports by the inspection services indicating the number of workers covered by the legislation, the number and nature of contraventions reported, etc.