Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Portugal (Ratification: 1964)

The Committee notes the Government’s report as well as the comments of the General Confederation of Portuguese Workers (CGTP) and of the Confederation of Portuguese Industry (CIP) on the application of the Convention. The CGTP expresses its disagreement on two provisions of the new Labour Code.

1. The CGTP refers to section 4(1) of the Code, which provides that the standards laid down by the Code may be overridden by the terms of a collective agreement, unless they concern mandatory standards or the administrative regulation of minimum conditions, irrespective of whether the provisions of the collective agreement are more or less favourable for the workers. The CGTP considers that under this procedure collective agreements may cease to be instruments of social progress and, this being the case, that this provision is contrary to Convention No. 98. The Government asserts that the new provision concerns the freedom of negotiation between the parties and that if, in one area, the parties agree on less favourable terms than those laid down by the Code, the agreement will probably include compensation in other matters covered. The Committee notes this information and observes that the provision in question preserves the application of mandatory standards and of the regulation of minimum conditions.

2. The CGTP also refers to section 577 of the new Code, which is concerned with the expiry of collective agreements and lays down that once an agreement expires it is automatically renewed, if it has not been terminated, for a period of time equal to that initially stipulated or to that laid down by the Code, namely one year. At the expiry of that period, the agreement remains in force from the beginning of conciliation or mediation until the conclusion of the procedures in progress, up to a maximum of six months. If there has been recourse to arbitration during this six-month period, the agreement remains in force until the entry into force of the arbitration award. Once this date has been passed, the agreement is no longer valid. The CGTP claims that this provision is contrary to the obligation of the State prescribed by the Convention to promote collective bargaining, since it necessarily causes collective agreements to expire without ensuring at the same time that new agreements enter into force. It claims that, if an agreement expired, trade unions would be obliged to negotiate "from square one" and that in fact the system would favour the party which blocked the negotiation. The CGTP also claims that this system turns into a sanction for the trade union side since the unions, in order to avoid remaining without a collective agreement, might be forced to accept unfavourable conditions. With regard to the expiry of agreements, the Government states that the previous system, which kept collective agreements in force for an indefinite period, had harmful consequences for collective bargaining. It states that the sum of the periods for which a collective agreement can be renewed in accordance with the new Labour Code guarantees that a sufficient period of time will elapse for parties to negotiate and conclude a revised agreement. It points out that the agreement will fall into disuse only in the rare hypothetical case that the deadlines have passed without the parties reaching an agreement. It states that the constitutionality of the new system has been examined by the constitutional court, which handed down a favourable verdict. The Committee notes this information and points out that both legislation under which collective agreements continue to remain valid beyond their expiry date and legislation which lays down a specific period of validity at the end of which it is necessary to renegotiate, are compatible with the Convention. The Committee requests the Government to keep it informed of the application in practice of the new provisions.