Rapport définitif - Rapport No. 238, Mars 1985

1. 119. By a communication dated 2 May 1984, the Union of Workers in the Manufacturing Establishments of the Armed Forces presented a complaint of violation of trade union rights in Portugal. On 8 June 1984 the complainant organisation transmitted certain additional information. The Government sent its observations in a communication of 19 October 1984.
2. 120. Portugal has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087), and the Right to Organise and Collective Bargaining Convention, 1949 (No.098).

A. The complainant's allegations

1. 121. The Union of Workers in the Manufacturing Establishments of the Armed Forces explains in its complaint that, in accordance with the trade union legislation instituted by Legislative Decree No. 215-B/75 of 30 April 1975, an assembly of workers in the manufacturing establishments of the armed forces was convened to set up a trade union association, to approve the union's by-laws and regulations and to elect a provisional management committee. All this procedure was followed, according to the complainant organisation, in strict accordance for the relevant provisions of the law.
2. 122. On completion of the procedure, the assembly took care to submit to the Ministry of Labour on 23 June 1983 the names of the elected members of the provisional management committee and the by-laws of the union with a view to its registration. However, adds the complainant, at the time of writing the complaint, the by-laws of the trade union have still not been published although the union was regularly constituted, and this, it says, is preventing it from embarking on its normal activities.
3. 123. The complainant adds that on 4 November 1983 the Office of the Secretary of State for Labour informed it that the union's by-laws had not been published, since it was not clear whether a trade union could be set up within the manufacturing establishments of the armed forces.
4. 124. According to the complainant this attitude constitutes a violation of Convention No. 87 ratified by Portugal, and the National Legislation of Portugal, no provision of which, in its opinion, allows the workers concerned to be deprived of the right to establish trade union associations.
5. 125. The complainant attaches to its communication of 8 June 1984 various documents in support of its complaint. It also transmits a note from the Council of Directors of the Manufacturing Establishments of the Armed Forces, which expressly recognises the legitimate right of the workers to form a union, an opinion given by the Public Prosecutor of the Republic, dated 9 February 1984, according to which the examination of by-laws by the Ministry of Labour is to be limited to ascertaining the regularity of the procedure as to form and to satisfying itself that the by-laws mention the subjects to be covered in virtue of section 14 of Legislative Decree No. 215-B/75. The complainant also supplies a copy of an order of the Constitutional Court dated 17 April 1984, which recognises the constitutional right of the workers of the manufacturing establishments of the armed forces to establish trade union associations and states that any provision seeking to deny or limit this right would be unconstitutional.

B. The Government's reply

1. 126. In its reply, the Government confirms that a procedure to register the Union of Workers in the Manufacturing Establishments of the Armed Forces was initiated with the Ministry of Labour and Social Security on 24 June 1983. After verification of the formal legality of the by-laws, the latter were registered and sent for publication.
2. 127. Subsequently, on 8 November 1983, the Vice Prime Minister and the Minister of National Defence notified the Minister of Labour that, following a more detailed analysis of the procedure, the establishment of this union was to be deemed unlawful.
3. 128. On 4 November 1983 the Secretary of State for Labour requested an opinion of the Public Prosecutor of the Republic on the legality of a trade union association of this nature and on the procedure followed by the Ministry of Labour. This opinion, which was sent to the Secretariat of State for approval on 14 June 1984, concludes that "neither the Constitution nor the legislation place any obstacles in the way of establishing trade union associations representing exclusively the civilian workers in the manufacturing establishments of the armed forces".
4. 129. By an Order of 7 July 1984 the Secretariat of State for Labour decided that the analysis of the Public Prosecutor's opinion by the Ministry of National Defence should be awaited before a ruling was made. Finally, the Vice Prime Minister and the Minister of National Defence, by Order No. 62/MDN/84, refused to endorse the opinion of the Public Prosecutor of the Republic and confirmed the illegality of the establishment of the Union of Workers in the Manufacturing Establishments of the Armed Forces. The act of registration was accordingly annulled.
5. 130. The Government explained its decision by stating that the exercise of the right of association in the armed forces is necessarily subject to special regulations which ensue from the organisation and operation of an institution whose mission is the military defence of the Republic. It points out that civilian personnel, although different from military personnel, are quite obviously concerned in the accomplishment of the specific missions of the armed forces, of which they are an integral part. Civilian personnel are therefore subjected to military organisation, in particular to lines of command, cohesion and discipline.
6. 131. The establishment of a trade union of such personnel, therefore, requires a legal basis, both from the point of view of ordinary legislation and from that of the direct application of the constitutional provisions. The latter should not be considered separately, but should be read in conjunction with the provisions concerning national defence and the armed forces. In particular, the establishment of such an organisation cannot be subject to the general principles governing trade unionism. It should therefore not be registered, and its by-laws should not be published, since Legislative Decree No. 215-B/75 does not apply to it; even if it did apply, registry and publication could not be granted since the administration cannot commit illegal acts.
7. 132. In fact, continues the Government, any vertical trade union structure of the civilian personnel of the armed forces is inadmissible, since it would conflict with the unified command which is inherent in the function of the armed forces, whose task is to ensure the military defence of the Republic (article 275 of the Constitution). The establishment of a trade union of this type would therefore be unlawful, and its consequences might even be very serious.
8. 133. Furthermore, states the Government, under the Regulations Governing the Organisation and Operation of Workers' Committees of Manufacturing Establishments in the Armed Forces, trade union activities which might compete with the functions of workers' committees, and activities which might be prejudicial to military organisation or to the preservation of the values of which the latter is the embodiment, are not authorised within the armed forces.
9. 134. In conclusion, the Government considers that its attitude in this case violates neither Convention No. 87, nor the Constitution, nor Portuguese legislation.

C. The Committee's conclusions

1. 135. The Committee notes that the present case concerns the refusal by the Portuguese Government to register a trade union of civilian workers in the manufacturing establishments of the armed forces. For the complainant this measure constitutes a violation of Convention No. 87, whereas for the Government the personnel concerned are involved in the accomplishment of the specific missions of the armed forces, and the registration of such a union would be illegal and would have serious consequences.
2. 136. The Committee is called upon to give its opinion on the allegations formulated in the present case in the light of the provisions of Convention No. 87, ratified by Portugal, and in particular Article 2 under which workers without distinction whatsoever have the right to establish organisations of their own choosing without previous authorisation, and Article 9 which allows States to determine the extent to which the guarantees provided for in the Convention shall apply to the armed forces and the police.
3. 137. The question which arises is, therefore, to determine whether the personnel who were to have joined the union of workers in the manufacturing establishments of the armed forces can be assimilated to members of the armed forces covered by Article 9 of Convention No. 87. In the view of the Committee the members of the armed forces who can be excluded from the application of Convention No. 87 should be defined in a restrictive manner.
4. 138. The documentation provided by the complainant shows that the workers in question perform functions of a civilian nature. This is not denied by the Government.
5. 139. In these circumstances, the Committee considers that the civilian workers in the manufacturing establishments of the armed forces are covered by the provisions of Convention No. 87, and that consequently they should have the right to establish organisations of their own choosing without previous authorisation. The Committee therefore requests the Government to take steps as early as possible to enable the union of civilian workers in the manufacturing establishments of the armed forces to be duly registered, in accordance with Portuguese legislation, thereby enabling it to perform in a normal and lawful manner its activities for the defence and promotion of the interests of its members.