Rapport définitif - Rapport No. 286, Mars 1993

1. 95. In their joint communication dated 16 June 1992, the Trade Union of Officers and Mechanical Engineers of the Merchant Marine (SOEMM), the Trade Union of Workers of the Portuguese Merchant Marine (SMMP) and the Federation of Seafarers' Trade Unions (FSM) presented a complaint of a violation of freedom of association against the Government of Portugal. The Government sent its observations concerning this case in a communication of 28 September 1992.
2. 96. Portugal has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 97. In their joint communication of 16 June 1992, the Trade Union of Officers and Mechanical Engineers of the Merchant Marine (SOEMM), the Trade Union of Workers of the Portuguese Merchant Marine (SNNP) and the Federation of Seafarers' Trade Unions (FSM) allege that certain provisions of agreements concluded between several trade unions in the merchant marine and crew management enterprises undermine the freedom of association of several categories of seafarers.
2. 98. The complainant organizations report that at the end of 1991 a group of other trade union organizations (the Trade Union of Captains and Pilots of the Merchant Marine (SINCOMAR), the Trade Union of Officers and Crewmen of the Merchant Marine and of Drivers on Land (SISTEMAQ), the Trade Union of Engineers of the Merchant Marine (SEMM) and the Trade Union of Officers and Crewmen of the Chambers of the Merchant Marine (SMMCMM)) signed a document entitled "Rules for Collective Labour Relations" (IRCT) with the "Wallem Shipmanagement Lda" enterprise, which handles the management of crews for shipowners of the merchant marine. This document includes an agreement concerning the recruitment of crews.
3. 99. They point out that under article 1, paragraph 2, of this agreement, the "Wallem" enterprise shall recruit crewmen exclusively through the trade unions which have signed the IRCT. In paragraph 3 of article 1, the signatory trade unions claim to be the "sole and exclusive representatives of all Portuguese seafarers".
4. 100. At the same time, according to the complainants, under article 26(a) of the IRCT the enterprise is to withhold each month a set percentage from the wages of all crew members and to pay it as trade union dues to the trade unions which have signed the agreement.
5. 101. The complainant organizations state that in practice this agreement has led to systematic acts which are obviously discriminatory and highly detrimental to freedom of association as far as employment is concerned. In effect the signatory trade unions, making use of their exclusive right to recruit crew members for ships managed by the "Wallem" enterprise, only recommend for hire those workers who accept that fees be withheld from their wages for the benefit of the unions. The workers who do not accept these deductions because they are affiliated to other trade unions are not recruited by the enterprise. The complainant organizations also point out that as a consequence of the serious unemployment affecting several categories of seafarers, many of them are forced to accept the withholding fees or even to change trade unions because this is the only way to obtain employment. They consider this a flagrant violation of the provisions of paragraphs 1 and 2(a) of Convention No. 98, Article 1.
6. 102. The complainants also consider this a violation of the Constitution of the Portuguese Republic and of other legislative texts under which those committing offences are subject to fines and imprisonment, and they point out that they have submitted a complaint before the Lisbon Labour Tribunal and the General Labour Inspectorate, with the aim of bringing to a halt these illegal practices. However, they state that the public authorities have not yet taken measures to remedy the situation despite the clarity of the case.
7. 103. According to the complainant organizations, the same trade unions concluded an identical agreement with the "Tripul - Sociedade de gestâo de navios Lda" enterprise in May 1992, applying the same system: the enterprise accepts only crew members designated by the trade unions, which recommend for recruitment only workers whose wages are subject to a percentage withholding fee. Other agreements of the same kind are reportedly now being negotiated. Within a short time, according to the complainants, this practice of discrimination which undermines freedom of association in employment will extend to all Portuguese seafarers.
8. 104. The complainants conclude that this entire situation results from the Government being remiss in applying Convention No. 98, and that this has caused serious prejudice to Portuguese seafarers which will be difficult to redress.

B. The Government's reply

1. 105. The Government sent with its communication of 28 September 1992 a copy of the other agreement mentioned by the complainant organizations, the agreement concluded in May 1992 between SINCOMAR, SISTEMAQ, SEMM and SMMCMM and the "Tripul - Sociedade de gestâo de navios Lda" enterprise (hereafter referred to as the TRIPUL agreement), as well as a copy of a letter sent to the General Labour Inspectorate by the Federation of Trade Unions of Seafarers (FESMAR), which includes these trade unions.
2. 106. The Government considers firstly that from the express reference by the complainant organizations to paragraphs 1 and 2(a) of Article 1 of Convention No. 98 it is possible to conclude that they consider that Convention No. 98 prohibits union security or "closed shop" systems. The Government points out, however, that according to the jurisprudence of the ILO's supervisory bodies, union security clauses are not contrary to Convention No. 98. (The Government cites the Digest of decisions and principles of the Freedom of Association Committee, the Report VIII(2) of the 31st Session of the Conference, and the Industrial Relations Committee of the 32nd Session of the Conference.) In these circumstances, such clauses are not incompatible with Portugal's international obligations stemming from its ratification of Convention No. 98. The Government moreover considers that since this question concerns clauses of collective agreements freely negotiated between the contracting parties and completely unrelated to the national labour administration services, it should be dissociated from the content of the collective agreements and cannot be held responsible for them at the international level.
3. 107. The Government then lists the provisions of national law which are applicable: (i) article 55, 2(b) of the Constitution, which ensures workers "freedom of affiliation" without any discrimination, and which states that "no worker may be forced to pay trade union dues to a trade union to which he or she is not affiliated"; (ii) section 37 of the Trade Union Act, which stipulates that "any agreement or act aimed at subjecting the employment of a worker to the condition that he or she be affiliated or not be affiliated to a trade union or end his or her membership in a trade union, or aimed at freezing in his or her post or transferring a worker, or aimed at causing prejudice to the worker by any means because of his or her trade union affiliation or participation in trade union activities is prohibited and is considered null and void"; and (iii) section 1(3) of Act No. 57 of 1977 which provides "that no worker may be forced to pay dues to a trade union in which he or she is not a member". The Government concludes that it would appear that the clauses mentioned by the complainant organizations are contrary to national laws and regulations, but not incompatible with Portugal's international obligations under Convention No. 98. For this reason, the Labour Inspectorate took up the case and the Lisbon Labour Tribunal stated that the complaint presented by the complainant organizations was admissible.
4. 108. As regards the provisions (article 26(a)) of the agreement concluded between the SINCOMAR, the SISTEMAQ, the SEMM and the SMMCMM and the "Wallem Shipmanagement Lda" enterprise (hereafter referred to as the WALLEM agreement) and the provisions (article 28) of the TRIPUL agreement which cover the payment of trade union dues, the Government presents the interpretation of these provisions given by the FESMAR in a letter sent by it to the Labour Inspectorate. According to the FESMAR the provisions in question do not mean that in order to be hired crew members must quit trade unions they freely joined, and the dues mentioned in these articles are actually not trade union dues, but rather payment for "participation in all the charges and expenditures necessary and indispensable for the negotiation and further management of this type of contract".
5. 109. If the FESMAR's interpretation is correct, the Government continues, then it must correspond to the interpretation given in paragraphs 250 and 324 of the Digest of decisions and principles of the Freedom of Association Committee.
6. 110. The Government also points out that whatever the case may be, it is quite surprising that trade union dues mentioned in article 26 of the WALLEM agreement and article 28 of the TRIPUL agreement are the same amount for workers affiliated with the signatory trade unions and for workers who are not members of those unions. That is why the Government, in the light of the doctrine advocated in paragraph 324 of the Digest of decisions and principles of the Freedom of Association Committee, is trying to obtain agreement of the contracting parties of both agreements that they voluntarily modify these provisions in order to bring them into line with the principles of the Committee.
7. 111. As regards the exclusive right of recruitment of seafarers, the Government points out that article 1, paragraph 2, of both agreements would appear to grant the signatory trade unions the function of a placement office for seafarers for the two enterprises, exclusively in the case of the WALLEM agreement and preferentially in the case of the TRIPUL agreement. It also points out that neither Portuguese laws and regulations nor Portugal's international obligations would block exclusive or preferential recruitment if the question concerns seafarers. This is clearly the case given the mandated field of activity of the complainant trade unions and of the signatory trade unions of the two agreements.
8. 112. The Government states that there is also no obstacle to the recruitment machinery freely decided upon in both agreements being maintained strictly as an intermediary between seafarers wishing to be recruited and the shipowners who need them, provided this intermediary function is not used as a means of trade union discrimination.
9. 113. The Government considers that an analysis of the relevant provisions of both agreements finds no intention to discriminate since the signatory trade unions are responsible under the agreements to ensure the protection of all seafarers, and to defend without any discrimination their interests and rights under the agreements. It considers that if the contracting parties do indeed follow these provisions, their actions would not be contrary to paragraph 2(a) of Article 1 of Convention No. 98.
10. 114. As regards the allegation by the complainant trade unions to the effect that in practice the signatory trade unions, by making use of these provisions of the agreements, are obliging workers to change trade unions in order to benefit from them, the Government points out that the complainant trade unions have presented to the competent tribunal a complaint which is still being heard and have submitted the case to the Labour Inspectorate, which concluded that "the question should be settled by a judgement handed down by a court".
11. 115. The Government concludes by pointing out that the effectiveness of the agreements in question, which were not officially laid down or published and thus have not been given any statutory effect, is a result of the acceptance by the workers of the conditions in them. Consequently, this is not a question of conditions of employment or work established by the law and for which the Government is responsible.
12. 116. In conclusion, it considers that the clauses in the agreements denounced by the complainant organizations do not appear to be incompatible with the obligations contracted by Portugal in ratifying Convention No. 98.

C. The Committee's conclusions

1. 117. The Committee notes that the allegations in this case concern certain provisions of two agreements concluded between several seafarers' trade unions and two crew management enterprises acting on behalf of shipowners of the merchant marine, regarding the collection of trade union dues and the recruitment of seafarers.
2. 118. As regards the provisions for trade union dues, the Committee notes that the WALLEM and TRIPUL agreements provide that "the company shall withhold each month from crew members' wages trade union dues and shall pay them to the contracting trade unions ...".
3. 119. It further notes that the WALLEM agreement stipulates that the enterprise shall recruit seafarers only through the signatory trade unions and that the latter are the sole and exclusive representatives of all Portuguese seafarers covered by the agreement; article 1 of the TRIPUL agreement provides that the enterprise shall give preference to recruitment through the signatory trade unions and that they shall represent all seafarers protected by the agreement.
4. 120. The Committee notes that the complainant organizations state that the signatory trade unions only recommend those workers who agree to having their wages subject to withholding fees and that workers who do not agree to these deductions because they are affiliated to other trade unions are not recruited by these enterprises. They further state that many seafarers are forced to agree to these withholding fees or even to change trade unions because this is the only way to obtain employment. They consider this a flagrant violation of the provisions of paragraphs 1 and 2(a) of Convention No. 98, Article 1.
5. 121. The Committee observes that in a letter sent to the Labour Inspectorate, the Federation of Trade Unions of Seafarers (FESMAR), a federation which includes the signatory trade unions of the two agreements, states that the provisions in question do not mean that crew members must quit the trade unions they freely joined in order to be recruited and that the dues are actually not trade union dues, but rather payment for "participation in all the charges and expenditure necessary and indispensable for the negotiation and further management of this type of contract".
6. 122. It also observes that the Government points out that, although it appears that the articles of the two agreements are not in conformity with the provisions of national laws and regulations, they are not contrary to the principles of the Committee on Freedom of Association, according to which Convention No. 98 neither authorizes nor prohibits union security clauses.
7. 123. The Committee also notes that the complainant organizations have brought before the Labour Tribunal a complaint which is still being heard, and also brought a case before the Labour Inspectorate, which concluded that "the question should be settled by a judgement handed down by a court".
8. 124. The Committee recalls that in cases involving questions concerning union security clauses - including those providing for the recruitment of workers through trade union organizations which have signed a collective agreement and also including those which establish contributions by workers not affiliated to the trade unions - it has based its position on the discussions which took place at the International Labour Conference when the Right to Organize and Collective Bargaining Convention, 1949 (No. 98) was being adopted.
9. 125. At that time, the Conference's Committee on Industrial Relations, taking into consideration the debate which had taken place within it regarding union security clauses, agreed to express in the report the view that the Convention could in no way be interpreted as authorizing or prohibiting union security arrangements, such questions being matters for regulation in accordance with national practice. (See 281st Report, Case No. 1579 (Peru), para. 64, which cites the Record of Proceedings of the sessions of the International Labour Conference (ILC), 32nd Session, 1949, page 468; 284th Report, Case No. 1611 (Venezuela), paras. 337-340.)
10. 126. In the light of this statement, the Committee considers that problems related to union security clauses must be solved at the national level, in accordance with the industrial relations practice and system of each country. In other words, both situations where union security clauses are authorized and those where they are prohibited can be considered to be in conformity with ILO principles and standards on freedomn of association.