Social Security (Minimum Standards) Convention, 1952 (No. 102) - Portugal (Ratification: 1994)

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on social security, the Committee considers it appropriate to examine Conventions Nos 12 (agriculture), 17 (accidents), 18 (occupational diseases), 19 (equality of treatment) and 102 (minimum standards) together.

The Committee notes the observations of the General Confederation of Portuguese Workers (CGTP-IN), communicated with the Government’s reports.

Part V (Old-age benefit). Article 26(2) of Convention No. 102. Pensionable age.Working ability of older persons. The Committee notes the information provided by the Government in its report concerning the reform of the pension system, which was aimed at enhancing its financial sustainability. The Committee notes that the legal age for entitlement to an old-age pension has been gradually increased to 66 years and 4 months in 2023. The Committee takes note of the observations of the CGTP-IN, that the expectancy of healthy life years at 65 years was only 7.7 years in Portugal in 2020, and that the level of employability of workers over 65 in 2022 reached just 9.3 per cent. The Committee further notes the information provided by the Government in its 2023 report on the application of the European Code of Social Security and its Protocol, which indicates that the number of elderly persons aged 65 compared to the number of persons of working age (from 15 to 64) reached 33.6 per cent in 2018, compared to 20.3 per cent in 1990. The Committee recalls that Article 26(2) of the Convention allows for an increase of pensionable age beyond 65 years with due regard to the working ability of older persons in the country concerned. The Committee therefore requests the Government to: (i) reply to the observations made by theGeneral Confederation of Portuguese Workers (CGTP-IN)in this regard; and (ii) provide statistical information on the working ability of older persons, notably on the healthy life expectancy, the life expectancy at 65 and the employability of persons aged 65 and over.

Article 36 of Convention No. 102. Payment of compensation in the form of a lump sum. The Committee notes the information provided by the Government that, in the event of incapacity for work of more than 30 per cent and less than 75 per cent, the conversion of a periodic payment into a lump sum is permitted only partially and at the request of a beneficiary, in accordance with section 75 of Act No. 98/2009. The Committee further takes note that, in such a situation, the partial conversion is subject to two limitations: (i) the remaining annual pension may not be less than six times the amount of the guaranteed minimum monthly remuneration in force; and (ii) the lump sum may not exceed that which would result from a pension calculated based on an incapacity of 30 per cent. The Committee notes Government’s indication that such limitations are sufficient to ensure that the lump sum is properly utilized as to guarantee the preservation of the subsistence income for the beneficiary of an employment injury pension.

Part XI of Convention No. 102 (Standards to be complied with by periodical payments). Article 65(10). 1. Review of the rates of employment injury pensions. The Committee takes due note of the information provided by the Government as regards the adjustment of disability pensions payable either by private insurance companies in case of an accident at work or by the Social Security Institute in case of an occupational disease.

2. Review of the rates of old-age, employment injury, invalidity, and survivors’ benefits. The Committee notes the statistical data provided by the Government on the evolution of the cost-of-living index and average wages, as well as the amount of standard old-age, employment injury and invalidity benefits since 2010. The Committee observes that minimum pensions during this period have increased at the same rate as the consumer price index (IPC) but that the social support index (IAS), which determines the level of other pensions, increased at a substantially lower rate. The Committee also takes note that there was no regular updating of pensions in 2021 and that the Government approved an extraordinary increase to be applied to lower pensions in 2022. The Committee notes the concerns expressed by the CGTP-IN, indicating that, in 2023, the Government set, at its discretion, the percentages for updating pensions at a much lower level than the legal formula, and that Law No. 53-B/2006 does not guarantee the maintenance of the real purchasing power. In this context, the Committee observes that the practice of adjusting mainly lower pensions without following the substantial changes in the cost of living may not guarantee the purchasing power of the pension payments. In view of this, the Committee requests the Government to (i) reply to the observations of the CGTP-IN in this regard; (ii) provide up to date statistical information on the changes in the index of earnings, the cost of living and the amount of old-age, employment injury, invalidity and survivors’ benefits since 2020, in accordance with Title VI of the report form for the Convention; and (iii) indicate how such changes guarantee the maintenance of the purchasing power as to the standard beneficiary under the terms of the Convention.

Part XIII (Common provisions). Article 69. Suspension of employment injury benefits. The Committee notes the Government’s indication that sections 14, 15, 16 and 17 of Law No. 98/2009 establish the situations in which suspension of benefits is allowed or that there would be no entitlement to employment injury benefits. The Committee also notes the Government’s explanation that these exclusions have very strict limits, which reduce the extent of their application.

Article 71. Financing of the social security system. The Committee takes due note of the information and data provided by the Government, which indicate that the overall contribution borne by employees attained 18.8 per cent of the total revenues in 2021, within the level allowed by Article 71 of the Convention.

Social security and poverty reduction. The Committee notes the Government’s statistical information on the reduction of poverty, despite the temporary reversal in 2020 resulting from the social effects of the COVID-19 pandemic. The Committee further notes, from the 38th report on the European Code of Social Security, that 16.4 per cent of people were at risk of poverty in 2021, 2 per cent less than in 2020, and that social transfers related to sickness and disability, family, unemployment, and social inclusion (excluding pensions) contributed to reducing the risk of poverty by 5.1 per cent.

Article 1 of Conventions Nos 17 and 18 and Article 71(3) of Convention No. 102. General responsibility of the State for the due payment of employment injury benefits. The Committee takes note of the information provided by the Government that delays in the provision of benefits were related to one single operator and that the Insurance and Pension Funds Supervisory Authority took specific measures, resulting in the normalization of the operations in 2022. The Committee notes the CGTP-IN’s observation as to the persistent delays in recognizing the occurrence of an accident at work or an occupational disease, particularly due to lack of medical personnel, which may deprive injured workers (and their families, in the event of death) of income for long periods of time. Furthermore, it indicates the under-declaration of wages for insurance purposes leading to a reduction of the amount of cash benefits paid in this regard. The Committee wishes to recall once more that Article 1 of Conventions Nos 17 and 18 and Article 71(3) of Convention No. 102 establish the responsibility of the State for the due payment of employment injury benefits and that the State must take all measures required for this purpose, including appropriate enforcement and compliance measures. The Committee requests the Government to: (i) reply to the observations of the CGTP-IN in this regard; and (ii) provide statistical information concerning the number of claims and the average time elapsed between the reporting of an accident at work/occupational disease, its recognition, and the beginning of payment of the respective cash benefits.

Application of the Conventions Nos 12, 17 and 18 in practice. The Committee notes the Government’s indication that, since 2014, the Working Conditions Authority (ACT) has adopted measures to prevent accidents at work, comprising training, awareness- raising and information activities aimed at certain sectors, including agriculture and fisheries, to reduce the number of accidents at work and the risk factors associated with occupational diseases. The Committee also notes the statistical information demonstrating the decrease in the number of accidents at work detected from 2014 to 2021, particularly in the agricultural, livestock and fishing sectors. The Committee also notes the information provided concerning the collection of statistical data on the incidence and prevalence of occupational diseases, showing that pilot exercises are currently being carried out, according to the framework regulation No. 1338/2008 of the European Parliament and of the Council, on community statistics on public health and health and safety at work, with a view to establishing a conceptual harmonization methodology to standardize the classifications of occupational diseases. The Committee notes that, according to the CGTP-IN, although the legislation concerning compensation for accidents at work applies to all workers and occupational accident insurance is compulsory, neither of them is fully applied in sectors characterized by the existence of various forms of subcontracting and temporary work, such as agriculture, resulting in, among other issues, the underreporting of cases. It indicates furthermore that injured workers are often dismissed without reintegration or professional rehabilitation. The Committee requests the Government to reply to the observations of the CGTP-IN in this regard, and to provide information on: (i) the number of accidents at work and occupational diseases, the violations detected by the labour inspection in this context and the number and nature of penalties applied; (ii) the measures adopted or envisaged to improve the reporting of accidents at work and occupational diseases, particularly in agriculture; and (iii) the results obtained by the pilot exercises regarding the incidence and prevalence of occupational diseases.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on social security, the Committee considers it appropriate to examine Conventions Nos 12 (agriculture), 17 (accidents), 18 (occupational diseases) and 102 (minimum standards) together.

The Committee notes the observations of the General Confederation of Portuguese Workers–National Trade Unions (CGTP–IN), and the General Workers’ Union (UGT) communicated with the Government’s reports.

Part V (Old-age benefit). Article 26 of Convention No. 102. Pensionable age. The Committee notes the information provided by the Government in its report on the reform of the pension system undertaken in the past decades in order to enhance financial sustainability. The modifications introduced included linking the pensionable age to the average life expectancy. Accordingly, the normal pensionable age has been gradually increased in the past years up to 66 years and 5 months in 2019 and 2020, as set out in Decree No. 25/2018 of 8 January 2018. The Committee notes the observations by the CGTP–IN and its allegation that this modification is not in conformity with Article 26(2) which allows for an increase of pensionable age beyond 65 years only with due regard to the working ability of older persons in the country concerned. In addition, the CGTP–IN points out that linking the pensionable age to the average life expectancy will bring variations in the pensionable age from year to year. The CGTP–IN further indicates that this creates uncertainty for future pensioners who are no longer able to anticipate the age at which they can draw a full pension. The Committee also notes the concerns raised by the UGT in its observations regarding the detrimental impact that a yearly determination of the pensionable age, based on sustainability criteria, will have on pensioners, and regarding the lack of agreement among social partners on the implementation of this measure. The Committee also notes the information provided by the Government in its 2019 report on the application of the European Code of Social Security and its Protocol (Code), which contains a provision similar to Article 26, in which it indicates that “the number of elderly persons aged 65 compared to the number of persons in working age (from 15 to 64) reached 33.6 per cent in 2018 compared to 20.3 per cent in 1990”. The 2019 report also provides statistical data showing that not only the general life expectancy but also the disability free life expectancy (DFLE) have increased over the past years. The Committee notes this information and requests the Government to continue providing statistical data on the working ability of older persons and notably on the disability free life expectancy, the life expectancy at 65 and the employability of persons aged 65 and over.

Part VI (Employment injury benefit). Article 35. Rehabilitation and reintegration. The Committee notes the information provided by the Government in reply to its previous request concerning rehabilitation and reintegration services.

Article 36. Payment of compensation in the form of a lump sum. In its previous comments, the Committee requested the Government to provide information on how private insurance companies verify that a lump sum paid instead of a periodical pension would be properly utilized, as required by Article 36. The Government replies that in case of incapacity for work of less than 30 per cent, the conversion of a periodical pension into a lump sum is permitted if the amount of pension does not exceed six times the indexing reference of social support, the IAS (indexante dos apoios sociais). The Government further indicates that in case of incapacity for work of more than 30 per cent, the conversion of a periodical pension into a lump sum is permitted only partially and at the request of a beneficiary. According to the UGT, the payment of a lump sum is advantageous for insurance companies but prejudicial to injured workers. The Committee recalls that in accordance with Article 36(3), the periodical payment may be commuted for a lump sum only where the degree of incapacity is slight or where the competent authority is satisfied that the lump sum will be properly utilized. The Committee therefore requests the Government to ensure that in case of incapacity for work of more than 30 per cent, the competent authority is satisfied that the part of the benefit that can be paid as a lump sum will be properly utilized.

Part XI (Standards to be complied with by periodical payments). Article 65(10).

(a) Review of the rates of employment injury pensions. In its previous comments, the Committee noted the delay in the publication of uprated employment injury pension rates and expressed the hope that the Government would in future issue the reviewed rates of employment injury pensions at the same time as other social security pensions. The Committee notes the CGTP-IN’s indication that the updating of employment injury benefits continues to be made with considerable and unjustified delay. The Committee requests the Government to provide its comments in this respect.

(b) Review of the rates of old-age, employment injury, invalidity and survivors’ benefits. The Committee notes the statistical data provided by the Government on the review of the benefits rates for the period 2014–15. The Committee notes that unlike minimum pensions, benefits received by a standard beneficiary were not adjusted according to the increased consumer price index (CPI) rate. The Committee further notes the CGTP-IN’s allegations that the purchasing power of pensions has not been ensured, as required by Article 65(10) and that some pensions were not indexed from the period 2009 to 2015, although the cumulative inflation rate had reached 9 per cent by 2015. The Committee also notes from the 2019 report on the Code that, since 2017, the adjustment of pensions to the CPI depends on the amount of the pension and on the gross domestic product (GDP) growth rate: if the GDP growth was less than 2 per cent, only pensions up to 1.5 IAS are indexed according to full CPI rate; if the GDP grew from 2 per cent to 3 per cent, indexation according to the full CPI rate is extended to pensions between 1.5 and six times the IAS; and if the GDP grew by more than 3 per cent, the full CPI rate is also applied to adjustment of pensions over six times the IAS. According to the 2019 report, the CPI rate of the previous year reached 1.03 per cent and the average GDP growth rate of the last two years was 2.58 per cent. Pensions were therefore adjusted in 2019 as follows: 1.6 per cent for pensions up to €871.52 (2 x IAS), 1.03 per cent for pensions between €871.52 and €2,614.56 (between 2 and 6 x IAS) and 0.78 per cent for pensions above €2,614.56 (more than 6 x IAS). The Committee observes that the new mechanism delinks pension adjustment from changes in the general level of earnings in the country, which is put forward by Convention No. 102, and links it instead to changes in GDP rates. The Committee further observes that in case real GDP growth is less than 2 per cent, adjustment of all pensions over 1.5 times the IAS according to the new rules will not permit the maintenance of their purchasing power vis-à-vis inflation, which is the primary objective of Article 65(10). In order to ascertain to what extent pension adjustments have effectively permitted the maintenance of the purchasing power of all pensions in payment, the Committee requests the Government to supply data on the changes in the index of earnings, the cost of living, the amount of old-age, employment injury, invalidity and survivors’ benefits, as well as changes of the GDP since 2010, in accordance with Title VI of the report form for the Convention.

Part XIII (Common provisions). Article 69. Suspension of employment injury benefits. In its previous comments, the Committee noted that, according to sections 14–17 of Act No. 98/2009, employers’ liability to compensate occupational accidents would not be engaged, inter alia, in case of gross negligence, force majeure or where the accident is due to another worker or a third person. It further noted that such cases were taken up by insurance carriers, given that the insurance contracted by employers for cases of occupational accidents aims at transferring to the insurer the obligations of the employer. In light of this, the Committee hoped that, in drafting the implementing regulations of the Act, the Government would take into account that the established grounds for the suspension of benefits might go beyond what is permitted by the Convention and requested the Government to take the necessary measures to ensure that, in applying sections 14–17 of Act No. 98/2009, the competent authorities would take into account the requirements of the Convention, which limits the causes of benefit suspension to those listed in Article 69. The Committee once again requests the Government to provide information on any measures taken to such effect.

Social security and poverty reduction. In its previous comments, the Committee noted that austerity measures had resulted in reducing social expenditure, greater precarity and poverty and requested the Government to provide information on the dynamics of poverty in the country, including data on the number of beneficiaries and the minimum amounts of social benefits in comparison with the poverty threshold. The Committee notes the Government’s statement that along with the general improvement of the Portuguese economy, targeted social policy measures widened the coverage of the minimum income schemes, and contributed to improving living conditions in households whose income was considerably below the poverty threshold. The Committee notes from the 2019 report on the Code the decrease in residents who were at risk of poverty (1 per cent less than in 2016 and 2.2 per cent less than in 2013). The 2019 report further indicates that income from retirement and survivors’ pensions contributed to a 21 per cent decrease in the at risk-of-poverty rate. The Committee notes the CGTP–IN’s observations indicating a deterioration in terms of coverage and level of non-contributory benefits, particularly regarding family allowances, unemployment allowances, the social integration income (RSI), and the solidarity supplement for older persons (CSI). The Committee hopes that the Government will continue taking measures on the sustainable reduction of poverty and extension of coverage by the minimum social security benefits and requests the Government to continue providing statistical data in this respect.

Part XIII (Common provisions). Article 71. Financing of the social security system. The Government indicates that, under the EU/IMF Economic Adjustment Program for Portugal, pensions, subsidies and other similar monetary benefits have been subject to the extraordinary contribution of solidarity (Contribuiçao Extraordinâria de Solidariedade) during the period 2012–16. The Committee notes in this regard the observations of the CGTP-IN, which alleges that extraordinary pension contributions form part of restrictive measures put in place by the Government, which raises issues of compliance with Article 71. The Committee recalls that, in accordance with Article 71 of the Convention, the cost of the benefits provided in compliance with the Convention and the cost of the administration of such benefits shall be borne collectively, and requests the Government to provide statistical data on the share of the insurance contributions borne by the employees of the total of the financial resources allocated to the protection of employees and their dependants, according to the report form for the Convention.

Article 1 of Convention No. 12. Coverage of all agricultural wage-earners, and application of the Convention in practice. The Committee notes the Government’s indication that Portugal’s legislation on compensation for employment accidents is applicable to all workers, including in the agricultural sector. It also notes from the data supplied by the Government an increase in the number of employment accidents in agriculture, livestock, hunting, forestry and fishing. In this regard, the Committee notes that, according to the UGT, the measures taken to prevent occupational accidents in the agricultural sector, one of the sectors with the highest rate of employment accidents, are not sufficient. The UGT also raises concerns as to the high rate of undeclared work in the agricultural sector, which is difficult for the Working Conditions Authority (Autoridade para as Condições de Trabalho, ACT) to detect. In this regard, the UGT refers to the National Campaign against Undeclared Work launched by the ACT in 2014–15 to tackle undeclared work and ensure the coverage of the workers concerned by the occupational accident insurance scheme. The Committee requests the Government to provide information on measures taken or envisaged to prevent work-related injuries in the agricultural sector and to refer to its comments under the Safety and Health in Agriculture Convention, 2001 (No. 184), in this regard. Furthermore, the Committee requests the Government to provide information on measures taken or envisaged to ensure that all agricultural wage-earners are effectively covered in case of work-related injury, in accordance with Article 1.

Article 1 of Convention No. 17 and Article 71(3) of Convention No. 102. Responsibility of the State for the due payment of employment injury benefit. In its reply to the Committee’s previous request, the Government supplies statistics on the number of inspections carried out and sanctions imposed. In this light, the Committee notes that the number of inspection visits decreased during the period 2011–15. The Committee also notes the UGT’s allegation that insurers are reported to be slow in paying compensation and that subcontractors do not conclude the required insurance policies, making it more difficult, if not impossible, to compensate workers. The Committee recalls that Article 1 of Convention No. 17 and Article 71(3) of Convention No. 102 establish the responsibility of the State for the due payment of employment injury benefits and that the State must take all measures required for this purpose, which includes appropriate enforcement and compliance measures. The Committee therefore requests the Government to provide information on the measures taken or envisaged to improve the compliance of the parties concerned with their employment injury insurance obligations and to ensure the effective payment of the compensation due to injured workers or their dependants in case of employment injury. The Committee also requests the Government to refer to its comments under the Labour Inspection Convention, 1947 (No. 81), with respect to the maintenance of sufficient numbers of labour inspectors.

Application of Convention No. 18 in practice. In its previous comments, the Committee requested the Government to provide information on the under-notification of occupational diseases and explain the manner in which medical practitioners intervene in the clinical recognition of occupational diseases. The Committee notes the Government’s reply, which refers to Legislative Decree No. 2/82 of 5 January 1982, on mandatory treatment of a suspected or worsening case of occupational disease and explains stages of the procedure for certifying an occupational disease. The Government also refers to the guidelines issued by the General Directorate of Health pursuant to Article 2(2)(a) of Regulatory Decree No. 14/2012 of 26 January 2012 and the Second National Occupational Health Programme (2013–17) which regulate the participation of medical practitioners in the clinical diagnoses of occupational diseases. The Committee notes the observations made by the UGT and the CGTP-IN, which indicate that most occupational diseases are not diagnosed as such, that occupational diseases are under-reported and that, as a result, there is a lack of necessary statistical data and relevant studies on the incidence and prevalence of occupational diseases. They also stress the need for increased awareness within the medical profession about the causal links between pathologies and occupational activities. The Committee requests the Government to refer to its comments under the Occupational Safety and Health Convention, 1981 (No. 155), with respect to measures to improve the reporting of occupational accidents and diseases. The Committee also requests the Government to provide information on measures taken or envisaged to improve the collection of statistical data on the incidence and prevalence of occupational diseases.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Part VI of the Convention. Employment injury benefit. The Committee notes the Government’s reports on the application of Conventions Nos 17 and 102, as well as the communications made in August 2011 by the General Confederation of Labour of Portugal (CGTP) and the General Workers’ Union (UGT). The Committee also notes the adoption of Act No. 98/2009 of 4 September 2009 regulating the compensation of industrial accidents and occupational diseases (pursuant to section 284 of the Labour Code, Act No. 7/2009 of 12 February 2009).

Article 35. Rehabilitation and reintegration. The CGTP considers that the new regime established by Act No. 98/2009 continues to consider workers as mere economic or productive entities, disregarding all harm not directly linked to the loss of earnings or working capacity, such as psychological harm, to the detriment of human dignity and decent work. It points out however that, for the first time, the scheme contains provisions regulating occupational rehabilitation and reintegration of victims of employment injuries. While this feature is considered as a positive measure, the social partners were not sufficiently consulted by the Government in the preparation of the implementing regulations that are currently being drafted. The Committee also notes the UGT’s indication that the National Council for Safety and Health in the Workplace, authority responsible for promoting consultation and the sharing of responsibilities between the State and the social partners, had not met in 2010 but is expected to meet in 2011. The Committee wishes to point out in this respect that Part VI of the Convention ensures comprehensive protection of the victims of employment injuries by placing at their disposal appropriate medical care services, vocational rehabilitation services and employment and placement services and providing for their close interaction with a view, first of all, to maintaining, restoring or improving the health of the persons concerned and their ability to work (Article 34(4)) and, secondly, to the re-establishment of persons with disabilities in suitable work (Article 35(1)). The approach taken by the Convention is therefore directed at restoring also the social and professional status of the victim and is not limited to the mere compensation of lost earnings. The Committee hopes that the employment injury branch in Portugal will be developed along these lines in close consultation with the representatives of the persons protected. It would like the Government to supply in its next report detailed information on how the measures currently developed to make operational the provisions of Act No. 98/2009 regarding the establishment of occupational rehabilitation and reintegration services have been implemented, how these services are coordinated with the medical rehabilitation institutions and what role is played in this process by the organizations of the persons protected. The Committee would also like to be informed of the related activities of the National Council for Safety and Health in the Workplace.

Article 36. Payment of compensation in the form of a lump sum. Section 75 of Act No. 98/2009 provides for the compulsory redemption of the pension in the case of permanent partial incapacity of less than 30 per cent or in the case of any annual pension, provided, in both cases, the amount does not exceed six times the indexing reference of social support IAS (indexante dos apoios sociais). According to the UGT, such redemption is not in the pensioners’ interests as it does not fulfil the purpose of the benefit to provide supplementary income by compensating existing incapacity. On the other hand, this system has obvious advantages for insurance companies which enjoy greater certainty when payouts are made in the form of lump sums only. The Committee has to observe in this respect that the possibility of converting pensions into lump sums was included in Article 36 of the Convention in the interest of the workers and not of the insurance companies. This is the reason why such conversion is permitted only where the competent authority is satisfied that the lump sum will be properly utilized. The Committee would like the Government to verify how private insurance companies comply with these requirements of the Convention in applying section 75 of Act No. 98/2009 and whether they have recourse to redemption of pension rights in situations where loss of capacity exceeds 30 per cent.

Part XI. Standards to be complied with by periodical payments. Article 65(10). Review of the rates of employment injury pensions. Referring to its observation, the Committee notes that Decree-Law No. 47/2010 of 10 May suspended the mechanisms established by Decree-Law No. 185/2007 of 10 May aimed at reviewing the rates of periodical payments. However, contrary to other social security pensions, employment injury pensions were updated in 2011 at 1.2 per cent by effect of Order No. 115/2011 of 24 March. Notwithstanding, the CGTP considers that the purchasing power of employment injury pensions is not guaranteed given that their mean value is already very low. Moreover, in successive years there has been an unjustified delay in uprating the pensions since the update is only published in May of the year in which it is applicable instead of December of the previous year, with seriously prejudicial consequences. The Government concurs with the CGTP in that delays in the publication of uprated pension rates should be avoided, but stresses that even when the publication of the update is delayed, the beneficiaries are paid the updated rate retroactively to January of the same year. It adds that, although the adoption of Decree-Law No. 185/2007, of 10 May, instituted an autonomous uprate mechanism, in practice, the uprating of employment injury pensions continues to take into account the consumer price index and the growth of GDP, as in the case of other social security pensions. The Committee takes note of this information. Stressing that employment injury pensions constitute the only source of income for many persons and would not fulfil their purpose if their purchasing power was not adequately maintained and adjusted in time, the Committee hopes that the Government will in future issue the reviewed rates of employment injury pensions in December as for other social security pensions.

Part XIII (Common provisions), Article 69. Suspension of employment injury benefits. According to sections 14, 15, 16 and 17 of Act No. 98/2009, employers’ liability to compensate occupational accidents would not be engaged, inter alia, in case of gross negligence, force majeure or where the accident is due to another worker or a third person. In its report on the application of Convention No. 17, the Government indicates that these cases of exclusion of employers’ liability are naturally applicable to the insurance carriers, given that the insurance contracted by employers for cases of occupational accidents aims at transferring to the insurer the obligations of the employer. The Committee observes that Article 69 of the Convention would not allow employment injury benefits to be refused in a number of situations envisaged by Act No. 98/2009 depending on how it is implemented by regulations and applied in practice through judicial and administrative decisions. The Committee therefore hopes that, in drafting the implementing regulations of the Act, the Government will take into account that the established grounds for the suspension of benefits may go beyond what is permitted by the Convention and are not usually found in the legislation of other countries which have ratified the Convention. In the meantime, the Government is asked to inform the competent administrative and judicial authorities that sections 14–17 of Act No. 98/2009 should be applied in the light of the international obligations assumed by Portugal under Convention No. 102 and the European Code of Social Security (ECSS).

Application in practice and enforcement. The UGT points out that insurers are reported to be slow in paying compensation, especially in the case of incapacity, and that subcontractors in such sectors as civil engineering, where the highest rates of workplace accidents are recorded, do not conclude the required insurance policies, making it more difficult, if not impossible, to compensate workers. In reply, the Government reiterates that the national legislation on employment injuries applies to all workers, including those employed through subcontracting arrangements, and stresses that the means of labour inspection in terms of human resources have been strengthened during the period 2009–10. The Committee hopes that these measures have helped to improve compliance with national legislation and would appreciate it if, to illustrate their effectiveness, the Government would supply statistics on the number of inspections carried out and of sanctions imposed, as well as relevant extracts from inspection reports. In particular, the Government is asked to assess whether the nature and scale of applicable sanctions is such as to produce a sufficiently deterrent effect on contraventions and whether increased sanctions would not help ensure greater compliance with the law. Please also explain the ongoing restructuring of the statistical system covering workplace accidents and professional diseases referred to by the UGT.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

With reference to its observation of 2007, the Committee notes the Government’s report received in September 2011 accompanied by observations from the General Confederation of Portuguese Workers (CGTP–IN) and the General Union of Workers (UGT). The Committee also notes the annual reports from Portugal on the application of the European Code of Social Security for the 2008–12 period. According to these sources, even though the minimum standards established by the Convention continue to be applied in the country, recent developments in the national social security system in the context of the economic and financial crisis have featured austerity measures aimed at reducing social expenditure and resulting in greater precarity and poverty. The Committee recalls that the social security system would not fulfil its role if its benefits are incapable of keeping workers above the poverty threshold. In view of the fact that poverty reduction is one of the main objectives of the Convention, the Committee requests the Government to send in its next report the most recent and comprehensive statistics on the dynamics of poverty in the country, including data on the number of beneficiaries and the minimum amounts of social benefits in comparison with the poverty threshold. The Government is also requested to demonstrate, on the basis of statistics for the period covered by the next report, that the readjustment of benefits for all protected persons has enabled the real value of benefits in relation to the cost of living to be maintained, in accordance with Article 65(10) of the Convention.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

With reference to its previous comments, the Committee notes the Government’s report, accompanied by observations from the Confederation of Trade and Services of Portugal (CCSP), the Portuguese Confederation of Tourism (CTP), the General Confederation of Portuguese Workers (CGTP–IN) and the General Union of Workers (UGT).

Sustainable development of social security. The Committee recalls that following the entry into force of Framework Act No. 32/2002 of 23 December, establishing a new structure for the social security system, extensive reforms have been carried out in the various branches and have been covered by a broad public discussion (as was the case in 2006 on the occasion of the revision of the legal framework for unemployment protection). The signature in October 2006 of the Agreement on Social Security Reform between the Government and the social partners with a view to ensuring the financial equilibrium of the social security system in the face of current economic, social and demographic challenges constituted a new stage in this process. In accordance with the Public Administration Restructuring Programme (PRACE), Legislative Decree No. 211/2006 of 27 October approved the organigramme of the Ministry of Labour and Social Solidarity. In 2007, a new Framework Act on the social security system, Act No. 4/2007 of 16 January, once again reformed the structure of social security, among other measures by introducing optional public and private supplementary capitalization schemes. Finally, Legislative Decree No. 52/2007 of 8 March reactivated the National Social Security Council, which is an advisory body through which the social partners and other social organizations participate in the management of social security policy. The Committee is bound to note that Portugal is in the process of establishing a new social security system redesigned for the twenty-first century. Although there is no unique model to be followed in this respect, in order to ensure their sustainable development all systems should nevertheless comply with certain basic principles of sound governance and social cohesion, compliance with which is under the general responsibility of the State. Moreover, this responsibility takes on particular importance during such periods of restructuring, not only in the national context to ensure the survival of the system, but also at the international and regional levels with a view to maintaining the regulatory framework established by the common provisions of international and European law. In view of the profound and evolutionary nature of the social security reforms in Portugal, the Committee considers it necessary to follow closely developments in the situation from the point of view of the application of the relevant ILO Conventions. In order to do so, it would be grateful if the Government would continue providing detailed information on any new legislative, administrative or judicial measures adopted giving effect to the Agreement on Social Security Reform of 2006.

Part II (Medical care) of the Convention, Article 10. The Committee notes the detailed information provided by the Government concerning the current reform of the health system in Portugal and the main initiatives to improve the quality and effectiveness of care and to contain costs. It notes in particular that, for the first time for several decades, the financial situation of the national health system in 2006 was in surplus by 167 million euros. The containment of the cost of primary care and in public hospitals with an enterprise status (EPE) was accompanied by an increase in productivity and a reduction in the average waiting time for surgery, which fell from 8.6 months at the end of 2005 to six months during the first quarter of 2007. The Committee notes these developments with interest. It requests the Government to indicate the other criteria that are used in Portugal to monitor and measure the improvement in the general health condition of the population and the effectiveness of the action of the national health system in this respect. It would also be grateful to be provided with information on the new rules relating to the cost-sharing of beneficiaries in health care, including the new scale of cost-sharing approved by Order No. 395‑A of 30 March 2007.

Part IV (Unemployment benefit). The report indicates that the legal framework for unemployment protection was modified by Legislative Decree No. 220/2006 of 3 November, including in relation to the following aspects: clarification of the concept of suitable employment; reduction of the qualifying period for access to unemployment insurance; modification of the period during which unemployment benefit is provided, which is based on the age of the beneficiary and the length of the contribution period; and changes to the rules relating to early retirement. The Committee hopes that the Government’s next report will contain a detailed evaluation of the impact of these changes on the application of each of the Articles of Part IV of the Convention, with particular reference to the provisions relating to suitable employment and the qualifying period.

Part V (Old-age benefit). Legislative Decree No. 187/2007 of 10 May, which entered into force on 1 June, established a new legal framework for old-age and invalidity benefits under the general social security scheme. Among the innovative measures, the Committee notes in particular:

–      the acceleration of the transitional period towards the calculation formula introduced by Legislative Decree No. 35 of 19 February 2002;

–      the introduction of a financial viability factor in the calculation of pension benefits as from 2008, which is the outcome of the relationship between average life expectancy in 2006 and the figure for the year prior to the date on which the pension is claimed; and

–      the changes in the rules of the scheme relating to the flexibility of the retirement age, which takes the form of a penalization of 0.5 per cent for each month prior to the age of 65 years.

In view of the new rules for the calculation of old-age pensions introduced as of January 2008, the Committee requests the Government to recalculate in its next report the replacement rate of the old-age benefit for a standard beneficiary who has completed a qualifying period of 30 years.

Part VI (Employment injury benefit). In its observations, the CGTP–IN alleges that as a result of the dualistic insurance system, private for employment accidents and public for occupational diseases, the victims of employment accidents often receive less favourable treatment than those affected by occupational diseases. Moreover, the legal provisions relating to vocational rehabilitation are still not properly regulated and are not therefore applied. In view of these allegations, the Committee requests the Government to demonstrate in its next report that the medical care provided to victims of employment accidents covered by private insurance companies includes all the types of care referred to in Article 34, paragraph 2, of the Convention without any limitation whatsoever and that it is provided not only with a view to restoring the health of the person concerned and her/his ability to attend to her/his personal needs, but also to maintain and improve the health and ability to work, in accordance with Article 34, paragraph 4. Please also indicate the extent to which the contracts concluded by employers with private insurance companies envisage the vocational rehabilitation of victims of employment accidents, in accordance with Article 35 of the Convention.

Part XI (Standards to be complied with by periodical payments), Article 65, paragraph 10. (a) In reply to the Committee’s previous comment, the Government shows in its report that the adjustment rate of pensions indexed to the minimum monthly guaranteed earnings (RMMG), namely minimum old-age and invalidity pensions under the general scheme, pensions under non-contributory and assimilated schemes and under the special social security scheme for agricultural activities, benefited during the period 2003–06 from increases that were higher than the inflation rate, in accordance with Article 65, paragraph 10, of the Convention. The report also indicates that, in accordance with the new Framework Act on the social security system, Act No. 53-B/2006 of 21 December established the Social Support Index (IAS) and determined new rules for the adjustment of pensions and other social benefits under the social security system. As from 1 January 2007, the IAS replaced the earlier RMMG as the reference index for benefits. The value of the IAS is updated annually on the basis of the real growth of the gross domestic product (GDP), corresponding to the average of the average annual growth rates for the past two years, and based on the average variation over the past 12 months of the Consumer Price Index (CPI), without housing, which is available on 30 November of the year prior to the year to which the adjustment is related. The Government indicates that with a view to reconciling changes in the purchasing power of pensions and the financial sustainability of the system, the new mechanism provides for a differentiation in adjustment rates, by giving priority to pensions at a level that is equivalent to or lower than 1.5 IAS, which cover around 90 per cent of the beneficiaries of old-age pensions; an increase in the purchasing power of this segment of beneficiaries is guaranteed. The Committee would be grateful if the Government would explain the advantages for beneficiaries of the transition from the former system of indexation related to the RMMG introduced in 2002 to the new system of the adjustment of pensions related to the GDP and the CPI and if it would demonstrate, based on statistical data for the period covered by its next annual report, that the adjustment rate of pensions for all persons protected follows variations in the general level of earnings and the cost of living, in accordance with Article 65, paragraph 10, of the Convention.

(b) In its previous comments, the Committee requested explanations on the manner in which pensions provided in respect of employment injury by private insurance companies have been revalued and adjusted. The report indicates in this respect that the legal framework governing employment accident funds (FAT) was modified by Legislative Decree No. 185/2007 of 10 May, so as to guarantee insurance companies the reimbursement of the amounts required for the adjustment of pensions for death or for permanent incapacity of 30 per cent or higher, as well as the adjustment of the supplementary benefit for the assistance of another person. This Legislative Decree establishes a specific system for the annual adjustment of employment injury pensions based on the adjustment references (the CPI and the growth of the GDP) envisaged by the new system for the adjustment of social security pensions, with the exclusion of step adjustments over contribution careers. The Committee hopes that the new system for the adjustment of employment injury pensions will continue to maintain the real value of the benefits in relation to the cost of living.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Part II (Medical care) of the Convention. The Committee takes note of the new measures introduced to secure an improvement in the management of medical care and better governance of the health system, which is still in the process of reform. Order No. 418 of 14 April 2005 sets forth the organization and operation of the departments of the Health Regulatory Body (ERS) and the internal rules of each department. Order No. 1108 of 7 September 2004 approves the hospital classification list (central level, district level and level I) for the purpose of determining the value of the health benefits provided by the various institutions of the National Health Service. Council of Ministers resolution No. 84 of 27 April 2005 approves the principles underlying policy and reorganization as regards to health care for the elderly and for dependent persons, and sets up a committee to be in charge of the work involved. A working party has been established to study primary health-care reform. As to the financial management of the branch, Council of Ministers resolution No. 102 of 24 June 2005 provides for the adoption of measures to ensure the financial viability of the National Health Service, particularly as regards to state participation in the cost of drugs. As for sharing by patients in the cost of health care, Legislative Decree No. 173 of 1 August 2003 approves the legal framework for beneficiaries’ own contributions applying to health-care access within the National Health Service and defines the persons who are exempt from them. Order No. 985 of 13 September 2004, amended by Order No. 103 of 23 January 2004, approves the scale of own contributions. Order No. 310 of 23 March 2005 establishes the requirement for the various bodies reporting to the ERS to pay contributions and own contributions.

The Committee observes that the reforms undertaken by the Government are extensive. It recalls that, whatever the circumstances, governments must assume general responsibility for the sound administration of health institutions (Article 72(2) of the Convention) and for the provision of the medical benefits provided in compliance with the Convention, and must take all measures required for this purpose (Article 71(3)). To ensure the financial sustainability of the branch, they must ensure in particular that actuarial studies and calculations are made periodically and, in any event, prior to any change in benefits, in the rate of insurance contributions or in the taxes allocated to covering the contingencies in question, or the volume of the benefits themselves. Furthermore, in accordance with Article 71(1) of the Convention, any emergency or long-term measures must be implemented in a manner which avoids hardship to persons of small means and takes into account the economic situation of the classes of persons protected. As to the volume of the medical benefits provided, in seeking to optimize the financial and medical management of the branch, the Government must ensure that the benefits are not limited to curative medical care but aim also to maintain and improve the health of the protected persons (Articles 7 and 10(3) of the Convention), as far as possible by using the available general health services (Article 10(4)). The Committee draws attention in this connection to Recommendation No. 1626 (2003) of the Parliamentary Assembly of the Council of Europe on the reform of health-care systems in Europe, which states that “the main criterion for judging the success of health system reforms should be effective access to health care for all without discrimination, which is a basic human right. This also has the consequence of improving the general standard of health and welfare of the entire population”. Bearing this in mind, the Committee would like the Government to provide the texts of the abovementioned legislation, together with a detailed account of how the measures taken have affected the application of each Article of Part II of the Convention and ensure the long-term sustainability of the national health system. Please explain also how the efficiency of these measures is being monitored in terms of improvements they bring to service delivery and the state of health of the population and what criteria are used for this purpose.

Part XI (Standards to be complied with by periodical payments). (a) The report indicates that Directive No. 464/2006 of 22 May updated the coefficients for revaluation of remuneration to be used in revaluing the reference remuneration taken as the basis for pension calculations. The reference remuneration is indexed to the value of the average guaranteed monthly wage (RMMG) in force at the date of commencement of the pension. Minimum pensions are also indexed to the value of the RMMG. The Committee asks the Government to show, on the basis of the statistical data for the period since the introduction of the new rules for pension calculation by Legislative Decree No. 35/2002 of 19 February, that the established system of indexation linked to the RMMG guarantees the rate of adjustment of pensions required by Article 65(10) of the Convention and ensures the maintenance of the real value of the pension in relation to the cost of living.

(b) In accordance with the principle of periodic review of pension amounts, Directive No. 1316/2005 of 22 December undertook the annual revaluation of disability, old-age and survivors’ pensions and pensions for occupational diseases. Please indicate whether and how pensions for industrial accidents payable by the private insurance companies have also been revalued and adjusted in accordance with Article 65(10) of the Convention.

Part XII (Equality of treatment of non-national residents) in relation to Part VII (Family benefit). The Committee recalls that Legislative Decree No. 341/99 of 25 August has abolished the requirement of a qualifying period of six months of wages for the entitlement to the family benefit in the general social security regime, in accordance with Article 43 of the Convention. The report states that the reformed family benefit system covers Portuguese and foreign nationals, refugees or expatriates who fulfil the general and specific conditions for the award of benefits, which are not being subject to contribution history. The general condition of access is residence in the national territory. Access of non-Portuguese residents, refugees and expatriates may also be made subject to verification of certain conditions, such as the existence of minimum residence periods. Please indicate the duration of the required period of residence and supply the text of the corresponding provisions of the legislation.

[The Government is asked to reply in detail to the present comments in 2007.]

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and the comment of the General Workers’ Union attached.

1. The Committee notes that, following the entry into force of Framework Act No. 32/2002 of 23 December, establishing a new structure for the social security system, extensive reforms are being carried out in its various branches, including in particular medical care, unemployment benefit and old-age benefit. Referring to these reforms, the General Workers’ Union states that in future problems may arise with the financial sustainability of the system. The Government’s twenty-first report on the application of the European Code of Social Security indicates in this respect that studies have been carried out on the financial equilibrium of the social security system with a view to the adoption of measures ensuring its financial viability, and that resources obtained from the increase of the VAT from 19 to 21 per cent have been allocated in equal parts to the financing of the social security of employees and of the pension fund of public officials (CGA). The report on Convention No. 102 mentions automatic transfer of a certain part of employees’ contributions to the reserve fund until it is sufficient to cover foreseeable pension expenditure for a minimum of two years. The Committee observes that these measures comply with Article 71, paragraph 3, of the Convention, which requires governments to ensure that actuarial studies and calculations concerning financial equilibrium of the system are made periodically and consequent changes are applied to contribution rates or taxes allocated to covering the contingencies in question. In accepting general responsibility for the sustainable development of the social security system, governments should also see to it that the voice of the representatives of the persons protected or their representative associations is clearly heard at all levels of management of the social security system, particularly when attention is drawn to vital problems. The Committee wishes to emphasize that the periodical assessment measures set out in Article 71, paragraph 3, of the Convention and the participatory management of the system foreseen in Article 72, paragraph 1, provide the best guarantees that the social security system is governed in a knowledgeable and transparent manner, permitting to avoid and prevent risks of its financial disequilibrium and unsustainable development. In view of the preoccupations expressed by the General Workers’ Union, the Committee would like the Government to furnish detailed information on the measures adopted or envisaged to safeguard the long-term future of the social security system, as well as to further promote through the reform process a strong role for workers’ organizations and the participation of representatives of the persons protected at its various levels of management.

2. Part IV (Unemployment benefit). Article 23 of the Convention. In its previous observation, the Committee requested the Government to reduce the excessively long qualifying period for entitlement to unemployment benefit of 540 working days of salaried employment over the last 24 months to make it consistent with Article 23 of the Convention. The Committee notes with satisfaction that Legislative Decree No. 84/2003 of 24 April, established special temporary measures of protection of unemployed workers under the new Programme of Employment and Social Protection (PEPS), reduced this qualifying period to 270 days of employment with the corresponding record of remuneration over the 12-month period prior to the date of unemployment. The Committee further notes with interest that the draft law establishing the new regime of protection against unemployment is in the phase of public discussion. It draws the Government’s attention to the possibility of having recourse to the technical expertise of the ILO for assessing the compatibility of the draft legislation with the provisions of the relevant international instruments.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

With reference to its observation, the Committee notes the information supplied by the Government, particularly with regard to Part VI (Employment injury benefit), Article 34, paragraph 2(d) and (f), and Part X (Survivors' benefit), Article 64 (in relation to Article 69).

1. Part VII (Family benefit), Article 44, of the Convention. The Committee notes the statistical information provided by the Government on the total value of family benefits. It notes in this respect that certain statistics refer to 1996, since the new family benefit scheme only came into force very recently (July 1997) and that, under the system for the compilation of data from regional social security centres, these are processed annually. The Committee hopes that the Government will in future be able to provide up-to-date statistics on the value of benefits paid to families, as required by the report form under this provision of the Convention.

2. Part XII (Equality of treatment of non-national residents), Article 68, paragraph 1. The Committee notes the Government's statement in its report to the effect that non-national residents have the same rights as nationals with regard to health care, the provision of which is based on the concept of the universality of protection for all residents. However, the Committee recalls that in its previous comments it noted that under the terms of Part XXV of the framework Health Act No. 48/90, the beneficiaries of the National Health Service are Portuguese citizens, citizens of the Member States of the European Union, stateless persons and foreign citizens resident in Portugal subject to reciprocal conditions, contrary to this provision of the Convention. Indeed, although Article 68, paragraph 1, in laying down the principle of equality of treatment for non-national residents, reserves the right to adopt special rules for non-nationals (such as a longer qualifying period) in respect of benefits payable wholly or mainly out of public funds, the Committee has always considered that the requirement of a condition of reciprocity cannot constitute such a special rule within the meaning of the Convention. The Committee notes that the Government's report does not contain any new information in reply to this question. In these conditions, the Committee is bound once again to hope that the appropriate measures will be taken to ensure, in accordance with this Article of the Convention, equality of treatment without any condition of reciprocity for all foreigners resident in Portugal with regard to the medical care provided for in Part II of the Convention. In the meantime, the Committee would be grateful if the Government would indicate the countries whose nationals are resident in Portugal and benefit from a reciprocal arrangement for entitlement to medical care.

Article 68, paragraph 2 (in relation to Part VI (Employment injury benefit)). In reply to the Committee's previous comments, the Government states that section 10 of Order No. 642/83, which provides for a condition of reciprocity with regard to compensation for employment injury, has not been amended following the adoption of Act No. 22/92. However, it states that this aspect has been resolved following the amendments made in the new legal framework for protection against employment injury, which resulted in the publication of Act No. 100/97 of 13 September 1997, the regulations of which are being completed. In this respect, the Committee notes with interest that section 4 of the above Act No. 100/97 provides that foreign workers exercising their activity in Portugal and the members of their families are assimilated to Portuguese nationals with regard to employment injury compensation. The Committee therefore hopes that the above Act and its regulations will come into force in the near future so as to give full effect to this provision of the Convention. Please provide the text of the regulations when they have been adopted.

3. Part XIV (Miscellaneous provisions), Article 72, paragraph 1 (in relation to Part VI (Employment injury benefit)). In its previous comments, the Committee requested the Government to indicate the manner in which the representatives of the persons protected participate in the management of the employment injury benefit scheme where such benefits are provided through private insurance companies. In its reply, the Government states that the overall administration of the employment injury compensation system is supervised by a public body, namely the Insurance Institute of Portugal, under the authority of the Ministry of Finance. The management of the system itself is in accordance with the legal framework for employment injury compensation and, in accordance with the Constitution, the representative organizations of workers acting as "representatives of the persons protected" participate in the process of formulating legislation. Finally, the Government emphasizes that the draft text to issue regulations respecting the Employment Accident Fund (FAT) provides that the supervisory commission for the Fund shall include a member representing the associations of the victims of employment accidents. For its part, the General Confederation of Portuguese Workers (CGTP-IN) is of the opinion that in systems that are managed privately, which is the case for protection against employment accidents by private insurance companies, the provisions of Article 72, paragraph 1, of the Convention are not given effect, since the representatives of the persons protected do not participate in any manner in the management of private insurance companies.

The Committee notes the information supplied by the Government and the observations of the CGTP-IN. It recalls that Article 72, paragraph 1, of the Convention explicitly provides that representatives of the persons protected shall participate in the management of institutions, or be associated therewith in a consultative capacity, under prescribed conditions. The Committee therefore hopes that full account will be taken of this provision of the Convention in the regulations respecting the Employment Accident Fund (FAT) and the regulations issued under Act No. 100/97 of 13 September 1997 establishing the new legal framework for employment injury. It requests the Government to indicate the progress achieved in its next report.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

With reference to its previous comments, the Committee notes the information supplied by the Government in its report and the comments of the General Confederation of Portuguese Workers (CGTP-IN), appended to the Government's report. It notes the new information provided by the Government on 16 November 1998. The Committee wishes to draw the Government's attention to the following points.

1. Part IV (Unemployment benefit), Article 23 of the Convention. In its previous comments, the Committee requested the Government to provide explanations as to the reasons for fixing a relatively long qualifying period of a minimum length of 540 working days of salaried employment over the last 24 months (section 12 of Legislative Decree No. 79-A/89 establishing the unemployment insurance scheme of the general social security scheme) for entitlement to unemployment benefit, taking into account the fact that Article 23 provides that the qualifying period shall not exceed the length considered necessary to preclude abuse. In this context, it also requested the Government to specify the reduction in the duration of the qualifying period decided upon in accordance with Decision No. 6/97 of the Council of Ministers for workers who are in involuntary unemployment in the textile and clothing industry, and to indicate whether similar measures have been taken or are envisaged in respect of the workers protected in other economic sectors.

With regard to the reasons for the determination in the national legislation of a qualifying period of 540 days of salaried employment, the Government states in its report that these were related to several factors, including the need to establish a minimum period of employment and to adapt the unemployment protection scheme to the context of a labour market which is characterized by a certain rigidity, with contracts without limit of time being predominant and fixed-term contracts (a situation in which the completion of this qualifying period would raise even more serious problems) being of an exceptional nature. According to the Government, since the situation with regard to contracts of employment in Portugal is fundamentally stable, the qualifying period in question is not very difficult to complete. Furthermore, the basic criterion for entitlement to benefits is related to age. Finally, the Government considers that the relatively long duration of the periods of protection, which are intended in particular to protect older workers, have to be counterbalanced in terms of the payment of contributions. With regard to the measures adopted in the textile and clothing industry under the terms of Decision No. 6/97 of the Council of Ministers of 15 January 1997, the Government confirms that, in the context of the new development programme for the sector, the qualifying period for entitlement to unemployment benefit has been reduced from 540 days of salaried employment over the past 24 months to 270 days of salaried employment over the last 12 months preceding the date of unemployment. It adds that reductions in qualifying periods as a measure of social protection are not recent and have already been applied by virtue of Legislative Decree No. 291/91 of 10 August 1991 establishing additional protective measures for sectors undergoing restructuring and in certain geographical regions affected by the economic and social restructuring of one or more local enterprises with a significant volume of employment. In addition to the textile and clothing sectors, these measures have been applied in the cases of the enterprises LISNAVE, SETENAVE and SOLISNOR (shipyards), as well as in the context of the restructuring of the glass sector in 1994. However, the Government emphasizes that these are temporary and exceptional measures. Finally, the Government also emphasizes the existence of a social allowance for unemployment for which the required qualifying period is substantially lower, since the unemployed person must have completed 180 days of work during the 12-month period immediately preceding the date of unemployment. This benefit, which is intended in particular for precarious and unstable employment relationships, is combined with a condition relating to earnings to justify the existence of a more favourable system.

In its comments, the CGTP-IN considers that, from the point of view of the provisions of Article 23 of the Convention, the qualifying period of 540 days is excessive since it has the effect of excluding from the protection a considerable number of workers who, due to the current precariousness and instability which characterize the labour market, do not succeed in completing this period. According to the CGTP-IN, this situation is in violation of the principle of the universality of protection set out in the Convention. With regard to the social allowance for unemployment which is designed to replace or supplement unemployment benefit, the CGTP-IN emphasizes that the number of persons covered is smaller because it is subject to an earnings condition.

The Committee notes this information. With regard to the reasons underlying the determination in the national legislation of a qualifying period for unemployment benefit, as set out in section 12 of Legislative Decree No. 79-A/89, and particularly those related to the predominance on the labour market of employment relationships without limit of time, age and the level of contributions paid in exchange for a relatively extended period of protection, the Committee recalls that Article 23 only authorizes such qualifying period as may be considered necessary to preclude abuse. It also notes that, while the completion of a qualifying period may be relatively easy under the conditions of a fundamentally stable system of employment relations, as described by the Government, the same does not apply in the current labour market which, according to the CGTP-IN, is characterized by increasing precariousness and instability in employment. Even workers with contracts without limit of time are increasingly affected by economic restructuring, with the effect that measures to reduce the qualifying period may prove to be necessary in certain sectors in order to protect those who are made unemployed without having completed the full qualifying period set out in the legislation. With regard to workers with fixed-term employment contracts, whose numbers appear to be very substantial according to the information supplied by the CGTP-IN in the context of the application of the Termination of Employment Convention, 1982 (No. 158), the completion of the current qualifying period of 540 days of salaried employment during the last two years has become particularly difficult. In this respect, the Committee notes, for example, that in accordance with the regulations governing fixed-term contracts introduced recently in the conditions of service of the National Health Service by Legislative Decree No. 53/98 of 11 March 1998, a copy of which was provided by the Government, public health establishments are authorized to recruit one-third of their staff under fixed-term contracts, which may not exceed a total duration of two years. Finally, the Committee wishes to emphasize that the social allowance for unemployment, for which the qualifying period would appear to comply with the provisions of Article 23, cannot be considered a method of protection which gives effect to Part IV of the Convention, since the social allowance does not comply with the criteria set out in Article 21(b) as regards its scope (all residents whose resources during the contingency do not exceed limits prescribed). The Committee however notes that the Government refers in its thirteenth annual report on the application of the European Code of Social Security to the coming into force in the near future of a legislative decree totally revising the legal framework of unemployment insurance. It hopes that on this occasion the Government will reconsider the question of the qualifying period for entitlement to unemployment benefit established by section 12 of Legislative Decree No. 79-A/89 which, as the Government recognizes, is relatively long, in the light of the provisions of Article 23, taking into account the above comments. In any event, the Committee would be grateful if the Government would continue supplying information on any new measure adopted to reduce the qualifying period for unemployment benefit in specific economic sectors.

2. Part VI (Employment injury benefit). (a) Article 36, paragraph 1 (in relation to Article 65, paragraph 10). The Committee notes the information provided by the Government in reply to its previous comments concerning the legislative provisions determining the methods for the adjustment of benefits for employment injury and occupational diseases and the statistics on the adjustment of these benefits for the period 1997-98. With reference to the provisions which are in force (Legislative Decree No. 668/75 of 24 November 1975, as amended by Legislative Decree No. 39/81 of 7 March 1981), the Government states that pensions for invalidity of a degree that is lower than 30 per cent are not affected by the rules for the adjustment of pensions. It adds that the draft regulations under Act No. 100/97 of 13 September 1997 establishing the new legal framework for employment injury (which has not yet come into force) includes a chapter on the adjustment of pensions which recommends the adjustment of these pensions under the same terms as the pensions provided by the general social security scheme.

On this subject, the CGTP-IN alleges in its comments that the method for the adjustment of employment injury pensions is not in conformity with the provisions of Article 65, paragraph 10, of the Convention since: (1) the adjustment does not apply to all pensions; and (2) the indirect method used for adjustment, under which increases in the level of benefits are determined by a new method of calculation based on the minimum wage fixed each year, do not ensure the maintenance of the real value of the pension in relation to fluctuations in the cost of living.

The Committee recalls that current periodical payments provided in the event of employment injury and occupational diseases, covered by Article 36, paragraph 1, of the Convention (with the exception of those covering temporary incapacity for work), shall be reviewed following substantial changes in the general level of earnings -- and not the minimum wage -- where these result from substantial changes in the cost of living, in accordance with Article 65, paragraph 10, irrespective of the degree of invalidity. It hopes that when it adopts the draft regulations under Act No. 100/97, to which it refers in its report, the Government will ensure that full effect is given to the Convention on these two points. The Committee requests the Government to provide a copy of the text when it is adopted.

(b) Article 38 (in relation to Article 69(f)). In its previous comments, the Committee raised the question of the conformity of Part VI, section 1(a) and (b), of Act No. 2127 of 1965 establishing the legal framework for employment injury and occupational diseases and section 12 of Order No. 642/83 approving the regulations of the National Insurance Fund for Occupational Diseases with the above provisions of the Convention. Under Part VI, section 1(a) and (b), of Act No. 2127 of 1965, accidents caused by fraud or resulting from an action or omission by the victim while that person was violating, without good reason, the safety rules, as well as accidents resulting from the serious and inexcusable fault of the victim, are not subject to compensation. Furthermore, section 12 of Order No. 642/83 also provides that serious and inexcusable fault excludes entitlement to compensation for occupational diseases. In view of the fact that Article 69(f) authorizes the suspension of benefit only in the case of the wilful misconduct of the person concerned, the Committee requested the Government to indicate the manner in which these provisions are applied in practice. In its report, the Government provides a résumé of judicial decisions on cases which occurred between 1995 and 1997 and emphasizes that these cases are relatively rare.

The Committee has examined the extracts of judicial decisions provided by the Government. It notes in particular that, in accordance with the case-law of the Supreme Court of Justice, serious and inexcusable fault presupposes the existence of inexcusable foolhardy behaviour, and not merely imprudence or lack of attention, lacking in an elementary attitude of prudence and constituting the unique cause of the accident. In this respect, the Committee considers that such a definition of serious and inexcusable fault would not appear to assimilate it in all cases to wilful misconduct within the meaning of Article 69(f) of the Convention, since the above concept of serious and inexcusable fault would not necessarily appear to take into account the intention of the author of the act. Furthermore, the application of this case-law in the various cases supplied by the Government shows that, in certain cases, serious but not intentional fault has resulted in the disqualification of the accident for the purposes of compensation.

The Committee therefore hopes that the Government will be able to re-examine the matter in the light of the above comments when preparing the regulations to be issued under Act No. 100/97 of 1997 establishing the new legal framework for employment injury and occupational diseases so as to limit the suspension of the benefits due in the event of employment injury to cases of wilful misconduct, in accordance with this provision of the Convention.

3. Part VII (Family benefit), Article 43. In its previous comments, the Committee noted that section 15 of Legislative Decree No. 133-B/97 establishing the legal framework for family benefit under the general social security scheme makes entitlement to family benefit, with the exception of beneficiaries of pensions, conditional on the completion of a qualifying period of six months' wages, received either on a continuous or interrupted basis, in the 12 months preceding the second month prior to the application. In view of the fact that, under the terms of Article 43, the qualifying period must not exceed three months of contribution or employment, or one year of residence during the prescribed period, the Committee requested the Government to indicate the measures which have been taken or are envisaged to give full effect to this provision of the Convention. In its reply, the Government recognizes that the qualifying period set out in section 15 of the above Legislative Decree is not in accordance with the Convention and states that the legal framework of family benefit, which is under review, will be improved, including the issue of the qualifying period. For its part, the CGTP-IN states that this qualifying period is in manifest violation of the provisions of Article 43 and constitutes a retrogression in relation to the previous scheme, which did not set any qualifying period. The Committee therefore hopes that the appropriate measures will be taken in the near future to bring the national law and practice into full conformity with the Convention on this important point.

[The Government is asked to report in detail in 1999.]

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee has noted the information provided in the Government's first report and requests the Government to furnish additional information on the following points:

1. Part IV (Unemployment benefit), Article 23 of the Convention. The Committee notes that, in accordance with section 12 of Legislative Decree No. 79-A/89 establishing the rules governing unemployment insurance under the general social security scheme, unemployment benefit shall be paid subject to the completion of a qualifying period of at least 540 paid working days during the last 24 months. The Committee requests the Government to provide explanations as to the reasons for fixing a relatively long qualifying period providing entitlement to unemployment benefit, in view of Article 23 of the Convention, according to which the qualifying period shall not exceed the length considered necessary to preclude abuse. In this context, the Committee has also noted that, according to the information provided by the Government in its twelfth report on the application of the European Social Security Code, the qualifying periods for the allocation of unemployment benefit and social unemployment benefit in the textile and clothing industry have been reduced as part of a new programme for the development of this sector, approved in resolution No. 6/97 by the Council of Ministers. The Committee would be grateful if the Government would specify the length of the new qualifying period fixed for workers involuntarily unemployed in this industry and indicate whether similar measures have been taken or are envisaged in respect of the workers protected in other economic sectors.

2. Part VI (Employment injury benefit), Article 34, paragraph 2(d) (maintenance in hospitals, convalescent homes, sanatoria or other medical institutions), and (f) (care furnished by members of such other professions as may at any time be recognized as allied to the medical profession). The Committee would be grateful if the Government would indicate the legislative provisions guaranteeing the victims of occupational accidents or diseases the types of medical care provided for under these provisions of the Convention.

Article 36, paragraph 1 (in relation to Article 65, paragraph 10). The Committee notes that with regard to the adjustment of employment injury benefit to changes in the cost of living and in the general level of earnings, the Government refers in its report to the statistics provided on the adjustment of old-age pensions. Given that employment injury benefit is covered by systems which differ from that for old-age benefit, the Committee requests the Government to specify, in its next report, the relevant legislative provisions establishing the method of review for benefits to be paid in the case of occupational injuries, and to provide all the statistics on their adjustment requested in the report form under Title VI of Article 65 of the Convention.

Article 38 (in relation to Article 69(f)). According to Part VI, paragraph 1(a) and (b) of Act No. 2127 of 1965 establishing the rules governing occupational accidents and diseases, accidents caused intentionally or resulting from an action or omission on the part of the victim while that person was violating, without good reason, the safety rules, and accidents resulting from the serious and inexcusable misconduct of the victim, are not subject to compensation. In addition, section 12 of Order No. 642/83 approving the Regulations of the National Insurance Fund for Occupational Diseases also provides that serious and inexcusable misconduct excludes the right to compensation for occupational diseases. The Committee recalls that Article 69(f) of the Convention authorizes the suspension of benefits only in the case of the wilful misconduct of the person concerned. Given that the notions of "act or omission on the part of the victim who appears to have violated, without good reason, the safety rules" and of "serious and inexcusable misconduct" may go beyond the suspensions authorized in Article 69(f) of the Convention, the Committee requests the Government to indicate in its next report the manner in which these provisions are applied in practice, in particular by providing extracts of relevant administrative and court decisions together with statistics on the number of cases in which benefits have been refused for these reasons.

3. Part VII (Family benefit). The Committee has noted the adoption of Legislative Decree No. 133-B/97 establishing the rules governing family benefit under the general social security scheme and of its implementing regulations. Given that these texts did not relate to the period covered by the Government's first report, the Committee hopes that its next report will contain detailed information on the effect of the new legislation in respect of family benefits on the application of each of the articles of Part VII, taking into account the following points:

Article 43. Section 15 of Legislative Decree No. 133-B/97 establishing the rules governing family benefit under the general social security scheme makes the allocation of family benefit, apart from for those receiving pensions, conditional on the completion of a qualifying period of six months' registered remuneration, either on a continuous or interrupted basis, in the 12 months preceding the second month prior to application. The Committee draws the Government's attention to the fact that under Article 43 of the Convention the qualifying period thus prescribed shall not exceed three months of contribution or employment, or one year of residence. Consequently, the Committee hopes that the Government will be able to take the necessary measures to bring section 15 of the above-mentioned Legislative Decree into full conformity with the Convention in this regard.

Article 44. The Committee hopes that the Government's next report will contain all the statistics necessary to verify that the total value of benefits paid to families on the basis of the new legislation reaches the level prescribed by the Convention, in the manner required in the report form. In so doing, please take account only of benefits corresponding to the definition of the contingency provided for in Article 40 of the Convention -- i.e. those relating to dependent children cared for -- rather than to all family benefits.

4. Part X (Survivors' benefit), Article 64 (in relation to Article 69). The Committee notes that according to sections 10 and 41 of Legislative Decree No. 322/90 establishing the rules governing survivors' benefit, pensions are not paid where a spouse is recognized by the courts as being unworthy of or prohibited from inheritance. Please indicate whether, and under what circumstances, cases of the non-payment of survivors' benefit have been declared under these provisions during the period covered by the report.

5. Part XII (Equality of treatment of non-national residents), Article 68, paragraph 1 (in relation to Part II (Medical care)). In its report the Government indicates that non-national residents have the same rights as nationals in respect of health care, based on the principle of universal protection for all residents, or of the general social security scheme. The Committee notes, however, that according to Part XXV of Framework Law No. 48/90 relating to health, all Portuguese citizens, citizens of Member States of the European Union, stateless persons and foreign citizens residing in Portugal are entitled to use the national health service, subject to reciprocal conditions. In this respect, the Committee recalls that, although Article 68, paragraph 1, of the Convention, while applying the principle of equality of treatment of non-national residents, may in respect of benefits which are payable wholly or mainly out of public funds adopt special provisions (such as a longer qualifying period) where necessary, it has always considered that the requirement for reciprocal conditions does not constitute a special provision as it is defined in the Convention. Consequently, the Committee hopes that appropriate measures will be taken to ensure, in accordance with this Article of the Convention, equality of treatment without reciprocal conditions for all foreigners resident in Portugal for the purposes of the medical care provided for in Part II of the Convention. Pending the resolution of this matter, the Committee would be grateful if the Government would indicate the countries whose nationals are resident in Portugal and benefit from the reciprocal scheme for entitlement to medical care.

Article 68, paragraph 2 (in relation to Part VI (Employment injury benefit)). The Committee notes that Part III of Act No. 2127 of 1965 referred to above, as amended by Act No. 22/92, guarantees for all foreigners working in Portugal and for their families equality of treatment in respect of compensation for occupational accidents and diseases without reciprocal conditions. In this context, it requests the Government to indicate whether section 10 of Order No. 642/83, which provides for reciprocal conditions in respect of compensation for occupational diseases, has consequently been amended.

6. Part XIV (Miscellaneous provisions), Article 72, paragraph 1 (in relation to Part VI (Employment Injury Benefit)). The Committee notes that the participation of employers' organizations and beneficiaries in the administration of benefits paid in the case of occupational diseases is ensured by means of their representation in the management of the National Insurance Fund for Occupational Diseases (sections 62 and 63 of Order No. 642/83). However, since benefits for occupational accidents are paid through private insurance companies, the Committee would be grateful if the Government would indicate how the representatives of the persons protected participate in the relevant administrative duties.