Rapport définitif - Rapport No. 214, Mars 1982

1. 164. The complaint of the Trade Union of Workers of the Pharmaceutical Industry and Trade, a union belonging to the General Confederation of Portuguese Workers (CGTP-IL), reached the ILO in a telegram of 12 June 1981. The complainant organisation supplied further information in support of its complaint on 28 July 1981. For its part, the Government transmitted its observations in a communication of 18 January 1982.
2. 165. Portugal has ratified the Freedom of Association and Protection of the Right to organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Workers' Representatives Convention, 1971 (No. 135).

A. The complainant's allegations

1. 166. The complainant alleges that the trade union leader Joana Da Conceigao Teixeira was prevented by the firm ATRAL Laboratories S.A. of Lisbon from working. According to the complainant, this situation is due to the failure of the competent authority, the Inspectorate of Labour, to take adequate legal measures, thereby violating Conventions Nos. 87 and 135, which have been ratified by Portugal. The complainant specifies that Miss Teixeira had carried out trade union duties from June 1976 to March 1981. It considers that the refusal to give her work is an affront to her dignity and honour.

B. The Government's reply

1. 167. The Government, for its part, states that it has obtained information from the employer and the Inspectorate of Labour about the facts of this case. The information supplied by the Government indicates that this trade union leader had been elected in July 1976 and re-elected in September 1978 to the executive Committee of the Trade Union of Workers of the Pharmaceutical Industry and Trade. Since her term of office extended until 25 March 1981, the Government goes on, she was released from her duties in the firm, in September 1977, so as to allow her to carry out her trade union functions. Then, in September 1980, when she wished to resume her professional duties, she was informed by the management that it was unable to assign her any job for the time being since the duties she had carried out previously had been assigned to another worker with the same qualifications. Moreover, the firm said, it was already overstaffed. The situation would not change until the next departmental reorganisation, but the management stated that it did not intend to dismiss her.
2. 168. Consequently, at the union's request the inspectorate of Labour ascertained by an inquiry on the spot that Miss Teixeira had been neither dismissed nor suspended but had not been assigned a job. In these circumstances, the Government explains, the Inspectorate of Labour could not force the firm to give her a job since such a situation is not contemplated by the law. So long as a worker receives his wages, there is no legal means of obliging the employer to provide him with a job. The national legislation on dismissal or suspension (Legislative Decree No. 372-A-75) and on the protection of workers' representatives (Act No. 68-79) are not applicable; accordingly, the Inspectorate of Labour decided to attempt persuasive action with the firm. It did so, the Government adds, but with no results. At the same time, the Inspectorate of Labour looked into other questions connected with Miss Teixeira's conditions of employment (food coupons and promotion) in the firm.
3. 169. The Government goes on to explain that the case was brought before the labour court, which ordered an inquiry. The magistrate ruled that no suspension had taken place but sentenced the firm to a fine for failing to promote Miss Teixeira and to issue food coupons to her.
4. 170. Regarding the alleged violation of Conventions Nos. 87 and 135, the Government considers that a distinction should be made between the measures taken by the firm and those which it took itself. If the firm violated the obligations incumbent on it under the Conventions, which form an integral part of Portuguese law, the Government considers that it has acted within the limits of its powers through the immediate intervention of the Inspectorate of Labour. The Government adds that the action under way by the Judiciary, which has the final decision in the case, should be taken into account.

C. The Committee's conclusions

1. 171. In this case, the Committee notes that a trade union leader, who had been released from her job for some years so that she could carry out her duties in the executive Committee of a trade union, was prevented from returning to her job by the firm employing her on the ground that it was unable to give her the job for economic reasons, the situation to remain the same until the firm's next departmental reorganisation.
2. 172. The Committee notes that the employee concerned continued to receive her wages. However, the Committee must point out that one of the fundamental principles of freedom of association is that workers, and with greater reason trade union leaders, should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment. In this connection, the Committee considers that such protection should extend not only to dismissal, demotion and compulsory retirement but also to any other prejudicial measures. Such protection is particularly desirable in the case of trade union officials because in order to be able to perform their trade union duties in full independence, they must have the assurance that they will not be victimised on account of their trade union office either during their term of office or for a certain time thereafter.
3. 173. The Committee has always considered that the guarantee of similar protection in the case of a trade union leader - which is the case at issue - is also necessary in order to ensure that effect is given to the fundamental principle that workers' organisations should have the right to elect their representatives in full freedom.
4. 174. Consequently, the Committee notes the efforts already made by the Government to facilitate the reinstatement of the employee concerned in a job and expresses the hope that these steps will prove to be successful as soon as possible.