Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 97) sur les travailleurs migrants (révisée), 1949 - Portugal (Ratification: 1978)

Autre commentaire sur C097

Observation

Demande directe

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The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and of the General Workers’ Union (UGT), both received on 28 August 2017, as well as of the General Confederation of Portuguese Workers – National Trade Unions (CGTP-IN), received on 1 September 2017, all forwarded by the Government.

Article 1 of the Convention. Migration flows. The Committee notes the Government’s indication, in its report, that migration flows have changed in recent years, mainly as a result of the economic and financial crises. It notes, from the statistical information provided by the Government that the number of notifications of employment contracts signed with foreign workers substantially decreased from 6,160 in 2015 to 1,486 in 2016. The Committee notes the UGT’s observations that, as a result of the economic crisis, the number of nationals emigrating abroad for employment has increased. The Committee asks the Government to provide statistical data, disaggregated by sex and nationality where available, on the employment of migrant workers (European Union citizens and third-country nationals, distinguishing between third-country nationals with temporary, long-term and permanent residency permits) in the various sectors. It also asks the Government to provide statistical information disaggregated by sex, on the number of Portuguese workers abroad.

Information on national policies, laws and regulations. The Committee notes the Government’s statement that, as a result of the changes in migration flows in recent years, it developed in 2014 a national migration strategy that includes measures focusing not only on immigrants, but also on emigrants and refugees. In that regard, the Committee notes the adoption of the Strategic Plan for Migration (2015–2020) which includes over 100 measures aiming at the integration of immigrants; the promotion of integration of new citizens; the coordination of migration flows; the improvement of legislation on migration and the quality of migration services; as well as the enhancement, monitoring and supporting of the return of citizens who have emigrated. It further notes the adoption of the Third National Plan on Preventing and Combating Trafficking in Persons (2014–2017). Welcoming these new developments, the Committee asks the Government to provide information on the implementation of the Strategic Plan for Migration (2015–2020) and the Third National Plan on Preventing and Combating Trafficking in Persons (2014–2017), as well as on their impact on the application of the Convention. It asks the Government to continue to provide information on national policies, laws and regulations elaborated and implemented to give effect to the provisions of the Convention.

Directive (EU) 2018/957 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. The Committee welcomes the adoption of Directive (EU) 2018/957, pursuant to which Member States of the European Union shall apply to posted workers the terms and conditions of employment of the host country in a series of matters, including remuneration, maximum work periods and minimum rest periods, minimum paid annual leave, minimum age, health, safety and hygiene at work, and accommodation. The Committee notes that Member States of the European Union shall adopt by 30 July 2020, the laws, regulations and administrative provisions necessary to comply with this Directive.

Articles 2 and 4. Services to assist migrant workers. The Committee notes the Government’s indication that specific measures under the Strategic Plan for Migration (2015–2020) aim at improving the quality of migration services and disseminating information on the rights and obligations of migrant workers. The Government adds that several other measures were continued, such as the National and Local Immigrant Support and Integration Centres (CNAI or “one-stop shop” and CLAII, respectively). The Committee further notes the Government’s statement that the Migrant Entrepreneurship Support Office, started in 2009 to promote entrepreneurship among immigrants by providing business start-up training and specialized advice, benefited to 2,087 participants until June 2017, and 141 businesses were established as a result, of which 60 per cent were headed by women. The Committee asks the Government to continue to provide information on the services provided to assist migrant workers and on the manner in which such services address particular concerns and needs of women migrants, as well as on any obstacles encountered.

Article 3 and Annexes I and II. Private employment agencies and measures to prevent misleading propaganda. The Committee previously noted the adoption of Decree-Law No. 260/2009 of 25 September 2009, which regulates the operation and licensing of private and temporary employment agencies, and requested the Government to provide information on its application in practice. It notes the Government’s statement that Act No. 5/2014 of 12 February 2014 amended the above-mentioned Decree-Law, simplifying the legal regime governing the operation and licensing of private and temporary employment agencies. The Government adds that the operation of private employment agencies only requires prior notification to the public employment service but that the Working Conditions Authority (CAT) is empowered to suspend provisionally the activities of any agency that engages in illegal practices. The Committee notes, from the statistical information provided by the Government, including in its report on the application of the Private Employment Agencies Convention, 1997 (No. 181), that the number of infringements by private employment agencies identified by the CAT drastically decreased from 44 in 2010, to 5 in 2015 and 1 in 2016. It further notes the adoption of Law No. 28/2016 of 23 August 2016 on combating the modern forms of forced labour which further amends Decree-Law No. 260/2009 and provides that the user company ceases to be the only party with subsidiary responsibility for an employee’s credits, as a temporary employment agency and its managers, administrators or directors – as well as any companies with which the temporary employment agency or the user company are in a reciprocal shareholding, control or group relationship – are also responsible. In light of the simplification of the legal regime governing the operation and licensing of private employment agencies and of the substantial decrease in the number of infringements by private employment agencies identified by the Working Conditions Authority, the Committee asks the Government to provide information on the measures taken to ensure adequate protection for migrant workers recruited or placed in its territory by private employment agencies in order to prevent misleading propaganda. It further asks the Government to provide information on the number and nature of violations of the provisions of Decree-Law No. 260/2009 detected by the Working Conditions Authority, as well as on the number of cases where private employment agencies were sanctioned by a temporary prohibition of activity while specifying the reasons on which such sanction was based. The Committee asks the Government to provide information on any assessment made of the supervision of the private employment agencies by the Working Conditions Authority, as well as on the reasons of the important decrease in the number of infringements recorded.

Article 6. Equality of treatment. The Committee previously noted the concerns expressed by the CGTP-IN regarding Act No. 23/2007 which establishes different categories of migrant workers that could create certain differences of treatment among them, and noted the Government’s indication that Act No. 29/2012 of 9 August 2012, amending Act No. 23/2007, establishes the legal framework for the entry, residence, departure and expulsion of foreign nationals and contains provisions on equal treatment with respect to remuneration, freedom of association, vocational training and social security. The Committee notes the CGTP-IN’s indications that further amendments were adopted regarding Act No. 23/2007, namely Acts Nos 56/2015 and 63/2015, of 23 and 30 June 2015, respectively. The CGTP-IN reiterates its concerns concerning the establishment of different categories of migrant workers that could create difference of treatment and ultimately force unskilled workers to remain in irregular situations. The Committee notes the Government’s indication that “European Union (EU) Blue Cards” for highly qualified nationals from countries outside the EU (“third country nationals”) were granted to five persons. The Government states that section 7 of the Social Security System Act (No. 4/2007 of 16 January 2007) establishes the principle of equal treatment with regard to payment of contributions to the social security and access of benefits of citizens and migrant workers, including third-country nationals. It adds that protection against discrimination on the ground of race is ensured by the legislation (article 13 of the Constitution) and law enforcement authorities (CAT, Office of the High Commissioner for Migration, and Committee for Equality and Against Racial Discrimination), as well as through the corresponding penal and administrative sanctions. The Committee however notes that the UGT, in its observations, highlights that while the national legislation prohibits discrimination against foreign workers in the Labour Code, there is a need for promoting the integration of foreign workers in practice through inclusive policy in order to ensure their access to accommodation, health, education and social protection. The UGT adds that despite the efforts made by the Government, some difficulties persist in practice, in particular to address discrimination at the workplace, as a result of the situation of vulnerability of migrant workers who have a low level of awareness of their rights. The Committee notes that the CGTP-IN, in its observations received on 1 September 2017 on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No.111), also highlights that the economic and financial crises and the measures of austerity adopted, combined with increasing unemployment and labour instability, resulted in a higher number of cases of discrimination, in particular towards more vulnerable groups, such as immigrants. The Committee asks the Government to provide information on how it is ensured that, in practice, no less favourable treatment is applied to migrant workers lawfully within its territory – other than citizens from the European Union, the European Economic Area, Switzerland and Blue Card holders – than that which is applied to its own nationals, in respect of the matters set out in Article 6(1)(a)–(d) of the Convention, in particular remuneration, membership in trade unions, accommodation and social security. It further asks the Government to provide statistics, disaggregated by sex and nationality and, if possible, by occupation, on the number of “EU Blue Card” holders, as well as temporary and long-term third-country nationals in Portugal.

Article 8. Maintenance of residence in the event of incapacity for work. Referring to its previous comments where it requested clarification concerning the maintenance of residence for the migrant worker and the members of her or his family in the event of incapacity for work, the Committee notes the Government’s indication that section 5(1) of Act No. 98/2009 of 4 September 2009 regulating the compensation of occupational accidents or diseases, puts on an equal footing foreign workers who are employed in Portugal and Portuguese workers, for the purposes of this Act, and that section 5(2) provides that the relatives of such foreign workers shall enjoy the same protection that those of an injured worker’s relatives. The Government adds that migrant workers who suffered an occupational accident or disease are subject to sections 154 to 156 of the Act, which provide for the rehabilitation and rehiring of workers. Thus, foreign workers or their family cannot be expelled if they are unable to work as a result of an occupational accident or disease. The Government again indicates that inability to work is not included under section 134 of Act No. 23/2007 of 4 July 2007 which establishes the grounds for compulsory removal or expulsion from the country of non-nationals, and that pursuant to section 249(2)(d) of the Labour Code the employment contract of foreign workers cannot be terminated in case of illness. The Committee notes that the CIP’s observations support the information provided by the Government. While welcoming the clarification provided by the Government on its national legislative provisions, the Committee asks the Government to indicate how it is ensured that a migrant worker, who has been admitted on a permanent basis to the country, and the members of her or his family, are not returned to their territory of origin or the territory from which they emigrated, in the event of incapacity to work of the migrant worker due to illness contracted or injury sustained subsequent to entry, which are not qualified as occupational accident or disease.

Enforcement. The Committee notes the reference made by the Government to the enhanced cooperation implemented between various local and national authorities, in particular in the framework of the Strategic Plan for Migration (2015–2020), including between the National Committee for Equality and Against Racial Discrimination and the National Human Rights Committee, as well as through partnerships with local municipalities and associations in welcoming and integrating immigrants and refugees. The Committee notes, from the statistical information provided by the Government that the number of violations identified concerning the employment of foreign workers by labour inspectors decreased from 123 in 2012 to 86 in 2016. It further notes that the UGT expresses specific concerns about the ineffectiveness of the labour inspectorate or judicial system. The Committee asks the Government to provide information on the measures taken or envisaged to strengthen the labour inspectorate in order to ensure that legislative provisions and regulations are adequately enforced, especially in sectors where migrant workers are mostly represented. It further asks the Government to provide information on the number and nature of cases of unequal treatment dealt with by the labour inspectorate and the courts, or any other competent authority concerning terms and conditions of work of migrant workers, including remuneration, social security, and accommodation as referred to in Article 6(1)(a) and (b) of the Convention.

The Committee further refers to its comments on the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143).